Archive for the ‘Uncategorized’ Category

Paralegal Personality

Friday, November 15th, 2013

Vicki Voisin, The Paralegal Mentor‘s, November 14 newsletter has a good article by Stephanie on personality traits needed by paralegals.  It’s good enough that I might even have just reprinted it here in its entirety, but this article does not have Vicki’s usual “reprint, but give credit” tag on it. So I’m just going to list the traits and give you the link so you can go directly to read what the article says about them:

Anticipative, Confident, Conscientious, Consistent, Disciplined,  Discreet, Efficient, Ethical, Flexible, Focused, Hardworking

 

If you feel like having some fun this Friday afternoon, try rearranging the traits in an order such that their first letters form a pronouncable acronym.

The Researching Paralegal

Saturday, November 2nd, 2013

During an exchange about my new book Cecil C. Elwell, RP, informed me of her relatively new blog, The Researching Paralegal. Lot’s of good information there already. Here’s one as an example:

Peter Martin’s Introduction to Basic Legal Citation — An ALWD and Bluebook Cheat Sheet

31 Thursday Oct 2013

Posted by Celia C. Elwell, RP in ALWD, Citations, Legal Writing, The Bluebook

ALWD Citation Manual, Bluebook, Legal Information Institute, Peter W. Martin

Introduction to Basic Legal Citation (online ed. 2013), by Peter W. Martin, Cornell Legal Information Institute
http://perma.cc/0SUwL6Xvva7

This guide can be used for both the 4th Edition of the ALWD Citation Manual and the 19th Edition of the Bluebook. CCE

(See also Citing Legally Blog, http://citeblog.access-to-law.com/.)

I’m adding this blog to my blog roll and RSS feed for sure!

Is the Paralegal Profession Going Backwards?

Wednesday, October 30th, 2013

In a recent post I spoke about a LinkedIn discussion on paralegal regulation. The discussion there took an interesting turn when Bonnie Taylor posted, “We have been fighting this battle on a national level since the early 1980’s and it is sad to see that it is still being fought across the country with little resolution or progress. I have been a Paralegal for 35 years and this is the first time that I have felt that the profession is going backwards instead of forward.” I’d like your impression on this question – is the profession going backwards or progressing. Here’s my take on it as I posted in that discussion board:

I disagree with the perception that the profession is moving backwards. Keep in mind that attorneys are regulated on a state-by-state basis, not a national basis, so it is extremely unlikely that paralegal are going to achieve some sort of nationwide status not even held by attorneys. How ever there has been progress in many states. As I noted above the State of Washington created a new practitioner called a Limited License Legal Technician which will allow some paralegals to engage in a limited practice of law without attorney supervision. Several other states, including California, New York, and Oregon, are considering similar programs. As I recently noted on my blog (www.theempowereparalegal.com), an ABA Task Force has endorsed LLLT programs, stating

“Broader Delivery of Law: – Related Services:
The delivery of law-related services today is primarily by lawyers. These services may not be cost-effective for many who are in need of them, and some communities and constituencies lack accessible legal services. State supreme courts, state
bar associations, and admitting authorities should devise new or improved frameworks for licensing providers of legal services. This should include licensing persons other than holders of a J.D. to deliver limited legal services, and authorizing bar admission
for people whose preparation may be other than the traditional four years of college plus three years of classroom based law school education. The current lack of access to legal advice of any kind that exists across the country requires such innovative steps.

In addition, several states have adopted or are considering adopting, registered paralegal programs such as Florida’s. All this indicates that the profession is progressing rather than regressing as a profession, moving closer to a professional identity similar to that held by nurse practitioners. Much of this progress can be attributed to hard work on the part of national organizations such as NFPA, NALA, and NALS, and their local affiliates. Those interested in the development of professional identity for the paralegal profession may be interested in the articles addressing this issue in “The Empowered Paralegal Professionalism Anthology.”

How does a paralegal decide if there is a civil case?

Thursday, October 24th, 2013

Browsing through the background data for this site I noted that someone came to the site two days ago using the query “How does a paralegal decide if there is a civil case?” as a search phrase. In light of the need for attorney supervision discussed here recently the technical answer for U.S. paralegals is that they don’t decide. However, if the intent of the question was “How does a paralegal assist an attorney in deciding if there is a civil case,” the answer is the topic of the about to be published The Empowered Paralegal Cause of Action Handbook ,” so the query is of particular interest to me and pretty well timed.

The long answer is, of course, too long to post here, since it is book length, i.e., the length of The Empowered Paralegal Cause of Action Handbook. A short answer of sorts is contained in this excerpt from the book:

Causes of Actions and their Elements

This requires a rudimentary understanding of legal underpinnings of the case itself: “causes of action” and “elements.” Each case involves one or more “causes of action.” For example, a case involving the sale of a defective product may have causes of action for breach of contract, breach of express warranty and breach of implied warranty. A case for defective construction of a home may have a cause of action for breach of contract, breach of statutory requirements, negligence and legal doctrines such as unjust enrichment.
Each of these causes of action has its own “elements,” that is, things that must be proved. The elements of a cause of action differ from the definition or description of that cause of action. For example, one might define the cause of action of negligence as, “the failure to exercise a reasonable amount of care in a situation that can cause harm to someone or something,” but this is not sufficiently helpful in determining exactly what must be proven in order to establish the cause of action. For that we look to the cause of action’s elements. An action for negligence is generally considered to require establishing four elements:

(a) The defendant owed a duty to the plaintiff,
(b) The defendant breached that duty,
(c) The plaintiff was harmed, and
(d) There is a causal relationship between the defendant’s breach and the plaintiff’s harm.

The plaintiff will win her case if she established each of these elements to the satisfaction of the factfinder. Doing so requires that the legal team understand facts, evidence, and proof.

Facts

Facts of a case are the bits and pieces that comprise what happened – the event which brought the parties to court; the particularities of the automobile accident, the assault, the boundary dispute, the contract dispute and so on. For example, it may be a fact of an automobile accident case that the defendant went through an intersection when the traffic light in his direction was red. However, this “fact” may be contested by the parties. One party will say the light was red and the other party will say it was green. Which version of the event is believed by the factfinder will depend on what evidence is presented and how it is presented.

Evidence

Evidence is something that tends to show, confirm or verify a fact. It can be testimony such as the driver testifying he looked at the light before he entered the intersection. Not all evidence is equally convincing. Testimony from an uninvolved third party such as a school crossing guard that the light was red or green may be more convincing than the testimony of the driver of either car involved in the accident. A picture taken by a camera set up to track drivers’ speed may be even more convincing.
From the lawyer’s perspective, evidence is more important than actual facts. Cases must be evaluated and presented based on the evidence available for presentation rather than on the facts the attorney believes are true. We are more concerned about what can be proven than what occurred. We can assure our clients that we believe the doctor told them they would never be the same, but must make them understand that what matters is what the doctor says in his reports and on the witness stand. If the doctor’s report state, “Patient is fully recovered,” the fact the doctor said something else to the client at some point is likely to be outweighed by the evidence in the form of the doctor’s report.

Proof

Proof is simply whatever evidence is sufficient to convince a jury to accept a fact as true. Thus, a driver’s testimony that the light was green when she went through the intersection is proof if it is credible enough for the jury to accept it as a true statement of the facts and is not proof if the jury does not accept it. Evidence becomes proof when it convinces a jury. Regardless of the intrinsic value of the evidence, it is not convincing unless the jury hears or sees it, understands it and is persuaded by it.

Thus, the goal of the plaintiff’s legal team is to locate and present to the factfinder admissible evidence of each fact necessary to establish each element of the cause of action sufficient to convince the factfinder that the fact is more likely than not to exist, i.e., the preponderance of the evidence. The goal of the defendant’s legal team is to locate and present to the factfinder admissible evidence regarding each alleged fact sufficient to establish that one or more causes of action has not been established by the plaintiff. This is illustrated in the following diagram, which I refer to as an “evidence tree.” Both of these goals begin with a thorough understanding of the elements of the cause of action. An analysis of the facts as well as the evidence available to confirm each of the facts of the
underlying event, when taken together, establish each of those elements.

In this sense, the legal team is not, as trials are popularly characterized, necessarily searching for “the truth.” Rather it is searching for the best evidence and the best way to present evidence in order to convince a jury that the evidence is sufficient to constitute proof of facts which establish the elements of the causes(s) of action or defense at issue in the legal action. Since the search for evidence begins when the case starts, this process must start when the case starts: during, or even before, the initial client interview.

So the legal team determines which possible causes of action might apply to a given set of facts. They then analyze the facts in terms of the elements to determine whether there are facts that support each element. If there are, then there is at least a theoretical civil case. Whether there is a case in a practical sense, i.e., whether the legal team will decide to proceed with the case, will depend on the further analysis of whether there is evidence available or that can be obtained sufficient to constitute proof of those facts.

Looking for something to read this weekend? Review a book.

Wednesday, October 23rd, 2013

I’m in the final editing and indexing phase of The Empowered Paralegal Cause of Action Handbook. It would be helpful to have some practicing paralegals review the book before publication. If you are interested, let me know and I’ll send it in .pdf format to the first few who respond.

Paralegal Regulation in the United States

Wednesday, October 23rd, 2013

A recent post on the Paralegal Jobs and Continuing Education LinkedIn discussion board calls our attention to a Paralegal Today article entitled “Paralegal Regulation in the United States.” It is a good compilation, but needs to be updated as it was first published in 2006. Gregory Lynn Crossett provides a good overview based on states that regulate paralegals by state statute, states that regulate through their supreme court, and states that regulate through state bar associations in The Empowered Paralegal Professionalism Anthology published by Carolina Academic Press in 2011. Even that article is now somewhat outdated given the speed with which this area is developing. For example, in the last few months the State of Washington created a new practitioner called a Limited License Legal Technician which will allow some paralegals to engage in a limited practice of law without attorney supervision.

PKI’s New Paralegal Trial Specialist Certificate Program Covers The Entire Pre-Trial and Trial Cycle

Tuesday, October 8th, 2013

A post on PRWeb.com announces a new certificate program through the Paralegal Knowledge Institute:

Through the Paralegal Trial Specialist Certificate Program, Paralegal Knowledge Institute (PKI) offers paralegals the unique opportunity to advance their careers by obtaining a certificate in trial specialization. The online, interactive 10-week program with live instructors is scheduled to begin October 17, 2013 and end December 19, 2013.

For more information click here.

 

Full disclosure: I have been a member of the faculty for other PKI webinars.

Essential Paralegals

Wednesday, October 2nd, 2013

Paralegals in U.S. Attorneys’ offices are not classified as “essential” for purposes of the Anti-Deficiency Act. “Basically, the Anti-Deficiency Act says a federal entity like the judiciary can’t spend money it doesn’t have. There are two exceptions and roughly speaking those exceptions are these: (1) money can be spent to protect life or property in an emergency and (2) money can be spent if necessary to further Constitutional and statutory commands that require action. It is also very important to realize that federal employees are subject to criminal penalties if they violate the Act.” R.G. Kopf, Federal Judge, “District of Nebraska’s “shutdown” plan,Hercules and the Umpire. However, the federal government shutdown has reminded U.S. Attorneys around the country just how essential paralegals are. ABAJournal.com reports, for example, on the “mess” in the Manhattan U.S. Attorney’s office, noting

Prosecutions in the U.S. Attorney’s office in Manhattan have been thrown into disarray, according to Lorin Reisner, the chief of the office’s criminal division. “From our perspective, it’s a mess,” Reisner said at a panel discussion on Tuesday. Bloomberg covered her remarks. “We have 10 trials going on in the criminal division,” Reisner said, “and I spent half of yesterday making sure the paralegals who are working on those cases can continue working on those cases, or that we have others who can assist with those trials. … It’s been quite a mess from an administrative and support staff perspective.”

Attorney General Holder is correct in stating that the shut down is “unnecessary,” but as this article illustrates, paralegals are a necessary part of our legal system. Their importance will only continue to grow.

Standard Provide Paralegal Fulfillment.

Monday, September 9th, 2013

From ISAF Regional Command South in Kandahar, Afghanistan, comes a profile of Cpl. Natasha Hunter, a paralegal, Staff Judge Advocate, 4th Infantry Division. I’ve posted several times on members of our military serving as paralegals, especially in overseas positions. Their stories are always inspiring. Those that achieve in these positions share some common traits, but each is unique. Here’s some of the story on Cpl. Hunter:

“I’ve known her the entire time she has been in, and I’ve been working with her for almost two years,” Stewart said. “She is driven and has the internal drive. She always wants to succeed and to do better – a perfectionist. It’s something you either have or you don’t,” says Capt. John Stewart, trial counsel, SJA, 4th Infantry Division.

Standards are what bring Hunter fulfillment in her job…Hunter’s strength is derived from her relationships and passion for standards.

“She wants to do the right thing all the time,” said Sgt. Maj. Mark Cook, sergeant major, SJA, 4th Infantry Division. “She goes out and looks for the right thing. It’s built in; it’s her character to do the right thing for herself and others. That’s what makes her strong.”

And for those of us who complain about conditions where we work: “The toughest part is being away from family and friends, but that is part of my obligations, my duty,” Hunter said, looking at the pictures resting on her desk of her mother, two younger sisters, and a 2-year old Jack Russell Terrier named Pita.

Email shortcuts

Monday, August 26th, 2013

The subtitle to the first The Empowered Paralegal book is Effective, Efficient, and Professional. This blog has focused on the “Professional,” with occasional trips into “Effective and Efficient,” some like the encouragement to have only one file on the desk at a time somewhat controversial. One part of the typical legal professional’s day that can interfere with efficiency is managing emails. I’ve spoken here previously about “Email Rules.” So I’m passing on a link to post from Legal Technology Today ‘s site (a part of the ABA Law Practice Management Section’s Legal Technology Resource Center) entitled, “Email Shortcuts: Faster and Safer.” It includes instructions for both Windows and Mac users, and explains,

Email shortcuts are an easy way to save a few seconds and cut down on the risk of a misdirected email. An email shortcut is an icon on your desktop that, when double-clicked, will automatically open up your email client and address a new email to a pre-set person. For example, you might have a shortcut on your desktop that says “Email John Doe” and when you click on it, it’ll open and address an email to john.doe@example.com.

Those saved seconds can be precious, but I’m a bigger fan of this method’s ability to reduce the risk of a misdirected email. Fixing the problems caused by misdirected email takes a lot of time and, worse, some of those problems can never be fixed. Once the cat is out of the bag, it’s out.