Archive for the ‘File Management’ Category

No room for fossils

Wednesday, November 27th, 2013

Judge Larry Primeaux’s blog post today entitled, “Twenty-First Century Fossils,” discusses ““fossilization of the hard drive.” This occurs when, as the Judge states,

when lawyers time and again have the same erroneous matter in pleadings, PSA’s, or other documents, and, when (again) brought to their attention the lawyers sheepishly admit the error and promise (again) to fix it. But they don’t. Because that error is saved countless times in other documents on the hard drive, and changing it once does not solve the problem.

A harmless example of what I am talking about is the lawyer in our district whose divorce complaints pled grounds thus: ” … guilty of habitual cruel and inhuman treatment as codiciled in MCA 93-5-1 …” That’s hard to eradicate when it appears in 1,000 other complaints stored — and fossilized — on the hard drive. Every time I called it to his attention, he professed he would fix it. After five years or so, he managed to pull it off somehow.

There are a number of solutions to this problem, one of which is discussed by the judge. Here’s mine: Create a folder on the hard drive labelled “Templates.” Client work goes into a folder for that client. (The client’s folder can have sub-folders if the office is handling more than one matter for that client.) Only the most recent “clean” documents sit in the template folder. Everyone in the office must be instructed to only use the template folder for templates and not to write over the template documents with client work. (There is a back-up folder in case the latter rule is broken.) The templates are revised each time a new pertinent rule, statute, or case ruling is promulgated. The template folder should be divided with sub-folders for the various types of documents frequently used by the office, e.g., “PSA,” “Deeds,” “Wills,” etc.

File Checklists and Blog Lists

Friday, March 29th, 2013

No, I haven’t forgotten I have a blog! I am on a deadline to get The Empowered Paralegal Cause of Action Handbook to the publisher, so I’ve had to move posting down in my priority list. Fortunately there are still several paralegal blogs of interest out there in the blogosphere. As Barbara Liss  points out on the NPFA LinkedIn discussion board, “The ABA Maintains a Paralegal Blogs List! The ABA’s website has a great resource directory for paralegal blogs! Check it out: http://www.abajournal.com/blawgs/topic/paralegals/” and “Paralegals – ABA Journal abajournal.com The ABA Journal is read by half of the nation’s 1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue.”

This blog is not on any ABA blog lists of which I am aware. I like to think it is because I am an attorney writing for and about the paralegal profession not a paralegal, so it does not qualify for the paralegal blog list or the attorney blog list. I suppose it just be though that they don’t like the blog.

In another NFPA LinkedIn discussion, Jaylin asks, “Hi! I work in a small law firm with three attorneys, and I am the only paralegal. I want to create a checklist to keep track of the routine process that each file goes through. It is meant to be a reminder to me and the attorneys of what still needs to be done with that specific client. The checklist should include items such as retainer amount, received Attorney-Client Agreement, checked deadlines of Statutes of Limitation, tasks requested by the client, etc. Do any of you have such a checklist that you like that you can forward to me? I appreciate any ideas that you have. Thank you!” Marianna Fradman of the NYCPA responds with a reference to a piece by Oliver Gierke, a contributor to The Empowered Paralegal Professionalism Anthology, “I would recommend an article posted on IPE website by Oliver Gierke. Although written with a complex litigation case in mind, it spells the basic rules that can be applied to any case. I hope that you will find it helpful. Here is the link http://www.nbi-sems.com/Enbi/Email/cToolsOfTheTradeFebruary2013.htm?goback=%2Egde_1124767_member_210285841. I’m a big fan of checklists and organizational aides. A paralegal professional is well-organized and, like Jaylin, takes the initiative to assist in making the entire law office more effective and efficient.

The Paralegal’s Role in Ensuring that Subscribing Witnesses Fulfill Their Role.

Monday, December 17th, 2012

A few days ago Judge Primeaux included a post on his blog regarding the The Role of the Subscribing Witnesses to as will spurred on by a Mississippi Supreme Court decision. In that case “The two subscribing witnesses were called to testify, and their testimony established that: they did not know they were witnessing a will; that the testator did not request that they witness a will; and that they did not satisfy themselves that the testator was of sound and disposing mind when she executed the will.” The court reversed the chancellor’s decision admitting the will, holding that the subscribing witnesses did not satisfy the requirement of “attesting” witnesses. The court’s opinion noted, “These formalities associated with attesting a will are important, not only as safeguards against fraud by substitution of a different will than the one signed by the testator, but also to make sure a person executing a will is of sound and disposing mind.”

Judge Primeaux states, “I would say that most of us who have ever prepared simple wills as a routine matter for clients have not paid heed to the exacting requirements that are imposed on subscribing witnesses by operation of the case law in this area. But, as this case illustrates, it is worth re-examining how you select and instruct your subscribing/attesting witnesses as to their duties, and, more importantly, how you document what it is that they are witnessing. By that latter point, I mean to suggest that you might want to scrutinize that subscribing witness affidavit form that is fossilized in your computer and which you have been using for more than 35 years, to see whether it is stout enough to pass muster in a trial of this sort, and whether it would help jog the memory of the witness to the extent that the witness’s testimony would be helpful.”

The judge is right, but in many law offices it will not be the attorney who sees that this gets done. As I discuss in great detail in The Empowered Paralegal: Working with the Elder Client a good paralegal will see that the a statutory requirements are met. Create and use detailed checklists for every step in every legal proceeding. Break enabling statutes such as those that enable people to make wills down into their elements. The break down can then be used as a checklist. Supplement with requirements interpreted or added by court opinions. The court in this case noted

Mississippi law empowers “[e]very person eighteen (18) years of age or older, being of sound and disposing mind” to make a will which, if not “wholly written and subscribed” by the testator, must be “attested by two (2) or more credible witnesses in the presence of the testator or testatrix [MCA 91-5-1]. The attesting witnesses must meet four requirements: First, the testator must request them to attest the will [Green v. Pearson, 145 Miss. 23, 110 So. 862, 864 (1927)]; second, they must see the testator sign the will [Matter of Jefferson’s Will, 349 So.3d 1032, 1036 (Miss. 1977)]; third, they must know that the document is the testator’s last will and testament [Estate of Griffith v. Griffith, 20 So.2d 1190, 1194 (Miss. 2010)]; and finally, they must satisfy themselves that the testator is of sound and disposing mind and capable of making a will [Matter of Jefferson’s Will, Id.].

This provides a good basis for a checklist:

1.  client

a. eighteen (18) years of age or older

b. of sound and disposing mind (document file)

2. Subscribing witness

a. two or more

b. credibile (document file)

c. in presence of testator or testatrix

d. requested by testator to attest the will

e. see the testator sign the will

f. know that the document is the testator’s last will and testament

g. satisfy themselves that the testator is

i.  of sound and disposing mind and

ii. capable of making a will

If each item on the checklist is documented at the time of the execution of the document and the checklist is kept in the file, not only can all be assured that the requirements are met, but there will be a record that can be used to prove the requirements were met in the event of a hearing many years later.

Note 1: Most states have a provision for “Self-proving Wills” that ought to be part of every will execution.

Note 2: Judge Primeaux’s blog is just chock full of helpful checklists for most proceedings that take place in equity courts regardless of their name in your jurisdiction, e.g., probate court, family court.  It is important, however, to adapt those checklists to the statutes, rules, and other applicable law for your jurisdiction.

Ideally, you work on one matter at a time…

Tuesday, July 26th, 2011

So begins the feature article in Vicki Voisin’s newest The Paralegal Mentornewsletter. Managing your work, work space, time, and files are essential “empowerment basics.” In The Empowered Paralegal: Effective, Efficient, and Professional as well in posts here I advocate a “One File on the Desk at a Time” policy and walk through the process of achieving that goal. Vicki has argued that this goal may be a bit too idealistic, but frequently offers suggestions for managing both work and work space. The newsletter article is a particularly good explanation of “10 Tips to Handle Piles of Files‏.” I’ll list the tips here, but you should go to the article itself for the full rundown. It is available on her blog:

1. Place files in an incline file sorter.
2. Take only what you need to get the job done.
3. Try to control when you’re given work.
4. Create temporary files.
5. Become an instant decision maker.
6. Prioritize throughout the day.
7. Ask for clear deadlines.
8. Never trust your memory!
9. Get those files back to their ‘owners’!
10. Establish routines.

Improving the Dog and Pony Show

Thursday, March 10th, 2011

In The Empowered Paralegal: Effective, Efficient, and Professional I state that when it comes to a trial “the best dog and pony show wins” meaning that often it is the best prepared case that wins, not necessarily the best case. The best prepared case is not simply the case with the most information, but the case in which that information is organized and set for presentation to the jury in a way the jury can understand it. Today’s post “Show Me the Money!” from Judge Primeaux on his blog illustrates this point as it applies to any factfinder, including those wearing a black robe:

As a judge I can tell you it’s hard to capture every detail in my trial notes. Sometimes the witness just speaks so fast  that I stay three sentences behind, trying to catch up, and just can’t get it all. Sometimes the significance isn’t clear until much later in the trial or even when the judge is writing the opinion, and then it’s too late.  Sometimes a verbose witness will bury the critical info under an avalanche of mostly meaningless words.

Next time you have an equitable distribution case, why don’t you sit down with your client during your trial preparation and work up a spreadsheet that shows how she wants the marital estate divided. 

The post includes other suggestions and the questions necessary to lay a foundation. I cannot emphasize enough the importance of the role of this kind of preparation is for a successful trial and the importance of the paralegal’s role is in preparing a well-done trial notebook. For more on this see Judge Primeaux’s blog and Chapter 7 of The Empowered Paralegal: Effective, Efficient, and Professional.

When Memory Falters – Protecting the File

Thursday, December 2nd, 2010

In some of my classes I conduct demonstrations regarding the reliability of witnesses: a person comes in and delivers me a package or makes a statement, then leaves. Fifteen minutes later I ask the students to complete “witness statements” regarding the event. While each of the students is relatively clear headed and have no reason to falsify the statement, they invariably vary significantly as to the description of the person, what was done or said, the description of the person, and so on.  The problem, of course, is worse when the witness is under stress or has reason to slant their recollection.

This has many implications for paralegals. I’ve previously posted on the importance of documenting the file regarding both what has happened and, often, what has not happened. A case posted on leagle.com demonstrates the necessity of documenting the file and having regularly established procedures in order to protect the paralegal and attorney from false claims as to what was said during conversations with witnesses and clients.  In People v Goosby,  a scared and reluctant witness testified at trial that the prosecutor’s office paralegal who contacted her to schedule an appearance at the preliminary hearing, ” “I did not say that. I remember the paralegal asking me if the handkerchief dropped.  But I said I didn’t — like what I said, I was asked by the paralegal if there was a time when this handkerchief dropped and I did not say no because I told her that I’m scared to witness… At first I told her that I was scared. But . . . she told me that you need to go there to testify. And I told her that — why do I need to go there? They were already arrested. And she told me you need to go there to testify that the handkerchief was dropped. 

The issue in the case was the discoverability of a subsequent email exchange between the paralegal and the prosecutor documenting the call.  The court’s discussion of this issue is itself interesting, but for me the important point was “[The paralegal] did not recall any specifics about the telephone conversation, but she said she generally does not discuss cases with witnesses, nor does she tell them how to testify. [She] also said it is her standard practice to document any witness information in an email sent to the prosecutor assigned to the preliminary hearing.”

Such standard procedures, when followed faithfully, can often “save the day” for the legal team. They are an essential part of file and client management. In this instance the legal team was well served by having followed this procedure for documenting the file.

Paralegals Help Prevent Dustbunnies

Thursday, November 18th, 2010

Chancery Judge Larry Primeaux has another excellent post today entitled, “Sweeping Dustbunnies.” I’m reposting it here because I think you need to read the whole thing to get the full picture and the judge as previously indicated he doesn’t mind me lifting his material. I recommend that any paralegal interested in understanding practice before a court to put his blog on their RSS. It is worth it for the checklists alone.

My only contribution will be this foreword to the post, partly addressed to attorneys and partly to paralegals:

Attorneys: A good, professional paralegal can save you a lot of grief. They are not maids, butlers, super-secretaries, who clean up the office. But as an effective member of the legal team they can greatly assist in preventing dustbunnies of the type depicted by the judge. For this to happen it is important that you understand, respect, and properly use the special skills a good paralegal brings to the legal team. Support your paralegals in this regard by providing them with the time and means to obtain appropriate CLE and membership in professional associations. Talk to your paralegals about what can be done to improve their skills in this regard, to improve the office to more effectively utilize those skills, and to improve the working relationship of the legal team. Together you can make a plan to manage the chaos.

Paralegals: It is, indeed, part of your role on the legal team to use effective and professional time, workload, workspace, docket, and client management skills, to prevent the accumulation of dustbunnies. Use examples such as this case to do a self-assessment and an assessment of your office systems. How many of these dustbunnies would have been prevented in your office and how many would likely have begun gathering in the small spaces between the files piled on the legal team members’ desks? Talk to your attorneys about what can be done to improve your skills in this regard, to improve the office to more effectively utilize those skills, and to improve the working relationship of the legal team. Together you can make a plan to manage the chaos.

OK, homily over, here’s the judge’s post:

Have you ever noticed that mistakes and missteps seem to pile up in some cases despite your best efforts, just like those dustbunnies that pile up under that buffet in your dining room no matter how hard you try?

The case of Estate of Bellino v. Bellino, decided by the Court of Appeals on November 2, 2010, is one of those “dustbunny” cases, and it merits your attention. For ease of following this, we’ll mark the dustbunnies as they accrue with the international dustbunny symbol: ¤.

Stephen and Margaret Bellino were married in 1974. During the marriage, Stephen inherited $200,000 and opened a securities account with A. G. Edwards (AGE). In 1995, he and Margaret executed a joint account agreement declaring the account to be a joint tenancy with right of survivorship.

Alas, the marriage foundered, and the erstwhile blissful couple faced off in court. Their marriage ended May 2, 2006, with entry of a final judgment of divorce.

And that is when the discombobulating deluge of dustbunnies (¤) began to develop.

It seems that the divorce judgment made no mention of the AGE account. That would be the first ¤.

Stephen became aware of the problem when he tried to make a withdrawal and was refused by AGE, which took the position that it could not allow any withdrawals until the court addressed the ownership issue. Another ¤.

Stephen filed an MRCP Rule 59 motion to alter or amend the judgment to address the oversight. Only problem is that he waited until May 15, 2006. That would be a major ¤ because it was filed more than ten days after entry of the judgment, and so the motion was time-barred.

In all the hubbub surrounding the issue, Stephen never got around to changing ownership of the account. This is one of those ¤’s that spawns lots of other ¤’s.

Before the issue could be resolved by the judge, Stephen died on June 18, 2006. Regrettable as it is, this development was also a ¤.

Stephen’s estate was duly opened in July. There is no mention of the estate being substituted as a party in the divorce action under MRCP 25. Probably a ¤.

In November, the attorney for the estate approached the chancellor and, without any notice to Margaret or her attorneys, obtained an order directing AGE to pay the funds to the estate. No question this was a ¤.

To compound matters, the attorney for the estate never filed the order (or, it appears, any motion therefor) in either the estate or divorce file, and never served it on Margaret’s attorneys. That would be ¤ ¤ ¤.

They’re beginning to pile up, aren’t they?

At this point the attorney for the estate realized that the dustbunnies were getting out of hand, so he started trying to sweep them up. The problem is that when you sweep dustbunnies it tends to scatter them and they seem to proliferate, which is exactly what they did.

The attorney for the estate filed an appeal. Now, this is really a dustbunny because the issues are fairly straightforward and not really in doubt. Score another ¤.

Right off the bat the court of appeals criticized the attorney for the estate for not filing a statement of issues after being asked not once but several time by the appellate court to do so. That would be another ¤ ¤ ¤. The court even thought about not considering his brief, which is, of course a ¤.

The court of appeals ruled that Margaret got the money because Stephen never changed the account and it was hers by survivorship. A predictable ¤.

Stephen’s estate will be stuck with the cost of cleaning up all these dustbunnies, and will have nothing to show for it. That’s a ¤ right there. In the alternative, the estate could insist that its attorney bear the cost of the appeal, which would be his own personal ¤.

So there you have it. Too many dustbunnies and before you know it you have a mess too big to clean up.

An Effective and Efficient Suggestion

Wednesday, September 1st, 2010

I am a hugh fan of organizational techniques that serve mutliple purposes. As regular readers know, The Empowered Paralegal: Effective, Efficient, and Professional focuses in large part on the ability to manage time, work, workspace, and calendar effectively and efficiently. Every now and then I run across someone with a manner of handling a task that I find well worth adding to the tool box. Here’s one that not only serves the organization function, but the function of creating a log in the event the paralegal is attacked by a vampire.

It is taken with permission from a post by Bob Sweat on the Paralegal Today listserv forum. Bob informs me he does a fair amount of writing for paralegal newsletters, CLE webinars & seminars and the like. Keep an eye out for his work.

I keep a 9.5 x 6 college ruled, spiral bound notebook by the phone with a pen always laying on it. I draw a line down the page about 1 in from the left margin (if there isn’t a preprinted one there). Each day I make an entry for the day to the left of the line and the date to the right of the line and underline it. For ex: M | 08/30/10.

When the receptionist says Mary Smith is on the line two – before I pick up the phone – on the first open line under the day and date I look at the time and while picking up the call I write 9:15 Mary Smith XYZ firm, then make notes of whatever the conversation entails. If I am to do something that I am not able to do at the time of the call, I put a box out to the left of the line and go back to what I was doing or on to the next call. When I get a chance to do the task, I then put a check mark in the box.

M | 08/30/10
9:15 Mary Smith, XYZ Firm, provide pricing for scanning, OCR and creating Dii for Summation for 5 boxes of documents and estimate the cost for converting a CD of PDFs to TIF. Needs by mid afternoon.

9:37 Jane Jones, ABC, Send brochures and pricing list for services. No Hurry.

10:03 Bob Wesson, BBB Lawfirm, send a copy of production CD to CCC Lawfirm, Rush.

In that way, I have the daily conversations one after another, never have to transfer anything from a post note or paper scrap and the check marks let me know if something is completed. If there is nothing to do after the call, I will make the box and check it off just so I know that nothing needs to be done. In that way, when things are really hectic and less urgent items get left undone, it is very easy to see each day what needs to be done or at the end of the day, what needs to be done tomorrow.

Distinguishing Clerical and Professional Tasks

Friday, July 9th, 2010

Most paralegals are charged with file management and other “clerical” tasks. In some small offices, even the attorneys must take on such tasks. The professional paralegals handles these tasks effectively and efficiently as part of their role in the legal team. Many paralegals are also charged with tracking and billing their time.  A recent case from the Nebraska United States Bankruptcy Court posted by Leagle.com deals with the relationship between the performance of clerical tasks and billing of time (among other issues). Here’s what the court has to say:

In addition to the matters discussed above, there is an issue concerning a law firm charging for secretarial or administrative functions, which, traditionally, have been treated as overhead and either not charged at all, or not charged at professional or paraprofessional rates.

There has been little guidance on this issue from courts in the Eighth Circuit. Most of the case law around the country suggests that “ministerial tasks” (typing, file organization, document preparation, searching or filing documents on PACER, etc.) performed by a professional or paraprofessional should not be allowed as a separate charge because it is part of the office overhead which should already be built into counsel’s hourly rate. See In re Dimas, LLC, 357 B.R. 563, 577 (Bankr. N.D. Calif. 2006) (“Services that are clerical in nature are not properly chargeable to the bankruptcy estate. They are not in the nature of professional services and must be absorbed by the applicant’s firm as an overhead expense.”). There is some older authority, however, for the proposition that the court should look at the “sum total” of the services rendered in determining whether a specialized service was performed which benefitted the estate, even if it was a clerical task performed by a professional. In re Interstate Restaurant Sys., Inc., 61 B.R. 945, 949 (S.D. Fla. 1986).

With regard to billing for clerical work, the Supreme Court said, in a case involving the award of attorney fees under the Civil Rights Act, that:

It has frequently been recognized in the lower courts that paralegals are capable of carrying out many tasks, under the supervision of an attorney, that might otherwise be performed by a lawyer and billed at a higher rate. Such work might include, for example, factual investigation, including locating and interviewing witnesses; assistance with depositions, interrogatories, and document production; compilation of statistical and financial data; checking legal citations; and drafting correspondence. Much such work lies in a gray area of tasks that might appropriately be performed either by an attorney or a paralegal. To the extent that fee applications under § 1988 are not permitted to bill for the work of paralegals at market rates, it would not be surprising to see a greater amount of such work performed by attorneys themselves, thus increasing the overall cost of litigation. Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them. What the court in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (CA5 1974), said in regard to the work of attorneys is applicable by analogy to paralegals: “It is appropriate to distinguish between legal work in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it.”

Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989).

Many of the time entries in this fee application for work performed by the employees identified as paralegals appear to be, functionally, clerical. File setup, scanning, setting up appointments, would be considered, according to the authority cited above, clerical in nature and not billable. I will, therefore, discount the amount claimed as paralegal time. I suggest that in the future Mr. Skrupa, and other law firms using a similar billing system, review the functions performed by the “paralegals” and bill, or not bill, accordingly.

The court thus recognizes the value of paralegal professional services, but requires that clerical task time be built into the paralegal’s hourly rate, just as it is for the other professional on the legal team – the attorney.

A clerical task remains a clerical task whether done by a file clerk, a paralegal, or an attorney. Law office might want to take this into account when structuring the office. Since clerical tasks are not separately billable by a paralegal, it might make more sense to hire a file clerk as part of the office overhead and free up the paralegal time for professional work that can be billed separately. In The Empowered Paralegal: Effective, Efficient, and Professional, I discuss delegation of clerical tasks as one aspect of paralegal time management. There I attempt to assist paralegals in making the argument for hiring persons to whom clerical tasks can be delegated. This case supports that argument.

Attorneys and Files

Wednesday, March 31st, 2010

For an interesting and amusing take on file location management and dealing with your attorney’s foibles, check out “Why Am I the One Who Has to Find the File??” By Grace Thoreau in this month’s OLP Newsletter.

Grace has done a good job recognizing the attorney’s foible and coming up with a plan to address it. Her plan utilizes her ability to interpret “code” used by both her attorney and the attorney’s secretary. I advocate more open communication between attorneys and paralegals. To the extent each member of the legal team can recognize their weaknesses (in this case one of the attorney’s weaknesses is forgetfulness), plans can be implemented that address the weakness and prevent problems, so I’d prefer that the cleverness be put into that aspect of the problem rather than dealing with the problems that do arise.

I am aware that not all attorneys (or paralegals) are open to recognizing and addressing their weaknesses. However, we can take a proactive rather than reactive approach. In this case, that approach may be to develop a plan for tracking files once they go into any office, then go the the attorney with a “look what I have done for the office” attitude, rather than focus on the attorney himself. Of course, no one approach will work for all attorneys. It may even be that Grace’s approach is the only one that will work with the attorney.

Many attorneys think their paralegals need training when it is actually they that need the training. That is why I like to approach the problem, e.g., files get lost and the paralegal has to spend time looking for it, rather than the personalities. There are many such problems that paralegals and attorneys will mention to a third party, especially if given an opportunity to do so in an anonomous or confidential way. Often both recognize the problem and secretly blame the other for it, rather than taking a team approach to solving the problem.

By the way, I (and I think many attorneys) have a forgetfulness problem. It was often necessary to implement methods to prevent that problem from causing real problems. For example, my paralegals were instructed to never give me an original document of any importance – affidavits, deeds, etc. All originals were to be copied for me (assuming I had some need for them), and the original kept and indexed separately.