Archive for December, 2009

Year in, year out

Thursday, December 31st, 2009

It appears I maybe stranded in Boston’s Logan airport by snow for New Year’s Eve. Other than that, it has been a very good year. This blog has been a great experience, not only because it gives me a platform thus lessening the need for my family to listen to me go on and on about paralegal professionalism, but because it resulted in me exploring other blogs by or for paralegals, and getting to know the many wonderful people who share my concern regarding issues facing the paralegal profession (although not always my solutions to those concerns!) In addition, I’ve been thrilled by the many emails and some LinkedIn and Facebook requests from practicing paralegal professionals from around the country. So, I’m ending the year with a shout-out to all of you, and particularly Chere Estrin of KNOW Magazine, Lynne Devenney at Practical Paralegalism, Vicki The Paralegal Mentor, and Melissa H. at Paralegalese.

There were certainly many high points to the year – research in London and Paris courtesy of the OleMiss School of Applied Sciences Summer Research Grant program (with help on contacts from the folks at NFPA), publication of my first book by the folks at Carolina Academic Press (special thanks to Beth Hall), and it has been great working with all the people at AAfPE (I’m looking forward to the revival of the scholarly journal) as co-chair of the Scholarly Journal Committee and as a participant/presenter at the Southeast Regional and National Conferences.

But most of all my main gig at OleMiss continues to be great – gratifying and satisfying. I could not have a better group of colleagues and students. This year has also brought some new friends in the Oxford community.

Thanks and best wishes to all for 2010!

Discussion Forum Civility

Tuesday, December 29th, 2009

The holiday break has provided an opportunity to catch up a bit on various discussion forums and comments to posts on some of the blogs I frequent. Perhaps it is just the holiday spirit catching up with some participants, but the threads often seem to turn to discussions of the lack of civility on the part of many of the persons posting comments. This lack of civility – from simple name-calling to outpourings of pure vitriol – is common on political and news blogs and does not speak well of the state of political discussion in our country today, not only because it emphasizes what divides us rather than what binds us together, but because it seems to arise out of an inability of those persons to make their case based on facts, evidence and sound reasoning. This is bad enough when practiced by the general public, but of greater concern when it appears in legal and paralegal forums and blogs such as Paralegal Today and Above the Law. Indeed, the increasing lack of civility within the legal community has led some federal district courts to sponsor seminars dealing with the topic!

One problem with this lack of civility is that it the posts become a public record. Certainly, everyone who posts on the internet should be aware that anything they post on the internet can ultimately affect their careers. Several posts on this blog have dealt with this danger. However, it seems to me that the greater danger to those persons stems from what they say rather than where they say it, because what they say about others and how they say it, says much more about them, even if the say it anonymously. Those who will “make it” as paralegals are those paralegals who are professional. Persons who cannot not be civil when making a point are simply not professional. Those who hide behind the veil provided by internet discussions are even less so.

Professionalism is not just a way of behaving on the job. It is an attitude – a state of being. It requires the ability to work with others civilly. It requires the ability to listen to and communicate with others in a way that ones message gets through to them. It requires the ability to state your point clearly, concisely and rationally. It requires personal integrity even when there is no chance of “getting caught.” It often requires the ability to conduct self-examination and introspection. Those persons who cannot control what they say on discussion forums, need the latter in order to achieve the rest and become professionals.

Professional, Empowered Paralegals and Elderly Clients

Wednesday, December 23rd, 2009

I’ve returned to Maine for the holidays. During some of the quiet times I am working on my new book, The Empowered Paralegal Approach to Elder Law.” Those of you who have read “The Empowered Paralegal” know that the basic approach to dealing with clients is understanding not only their legal needs, wants and goals, but understanding the client him or herself in a way that allows the paralegal to remove barriers to communication and properly manage the client as a member of the legal team. This takes on a special meaning with elderly clients and often means applying the same principles to the client’s family. Clearly many elderly clients need special accommodations due to diminution in mobility, hearing and sight. However, it is also important for the paralegal to be aware of the basics of psychology of aging and the varying perceptions that clients and their families have of aging, dying and death, as well as the effects that those perspectives have on the client and their families as they work through legal issues.

I am very interested in hearing from practicing paralegals about their experiences with elderly clients and their families. Please contact me by comment here or email me at theempoweredparalegal@live.com with your comments, problems, concerns, accommodations or stories regarding elderly clients.

A New Year’s Resolution for Your Consideration

Monday, December 21st, 2009

I’m heading back to Maine for the holidays, so I don’t know how often I will be able to post this week, but I have managed to get this one in before I leaving!

Since the beginning of this blog, posts have discussed the issues of whether attorneys really understand what paralegal do and how to educate your attorney about your skills and role. The topic is often discouraging to paralegals, although Melissa H. of Paralegalese provided one encouraging sequel to the original post. The issue has been a recent topic of discussion on the Legal Assistant Today discussion forum in response to a question asking what the biggest and most common problem paralegals face. One post indicated the biggest problem was “getting the attorneys to trust your skills enough to let you handle substantive work.” Another responded:

It’s funny, but I feel like I sometimes have the opposite “problem” with my supervising attorneys – they’ll frequently ask me to draft a trial brief or similar, and then sign it with barely a glance-through. While I appreciate their confidence in my abilities, I also feel a pang of trepidation when I file those pleadings for them, because I’m acutely conscious of the fact that it’s not MY license to practice that’s on the line if I messed something up!

Previous posts here has dealt with paralegal-attorney communications, and the fact that the difficulties paralegals face in this regard vary depending on what type of manager the attorney is (while recognizing that it is rare for an attorney to be a good manager regardless of their style. Several posts have also dealt with the necessity for paralegals to take charge and manage all aspects of their work – that is the essence of being The Empowered Paralegal. Many of these elements were combined in a post by Linda Whipple, who I recently quoted at length in regard to another issue. She has not yet objected, so I’m going to do it again:

I have been a paralegal for more than 35 years, I have my 2 year paralegal certificate and about to finish my BS degree in political science this year. The attorney I work with now is a type AAA++ personality and who not only expects perfection but demands it! When I came to work for him nearly 11 years ago, I didn’t ask him what “tasks” I would be able to perform for him. He actually had 2-1/2 people working for him the day I started. I simply sat at my desk, started pulling cases off the shelf (an entire case) and reading it, making notes about what I thought had been overlooked in requesting discovery, what issues should be considered in upcoming motions in limine and a motion for partial summary judgment. I kept performing the “tasks” he asked of me which were no more than what a great legal secretary could do, but I had been doing more for decades. So as I went through case by case, I would type up a “case status” with where the case was, the upcoming deadlines, a draft of discovery that was needed to fill a hole in the case, motions to compel discovery that had gone unanswered for months, a draft of motion in limine, and a draft of a partial summary judgment (with the supporting brief)attached. I would put it on his desk early in the a.m. and when he came in, after the first case, he would ask “which law clerk did this?” I said, “no law clerk did that work, I did it myself.” He was shocked that I was capable of performing at that level. When he showed his surprise at my abilities, I simply replied, “It’s my job to know how to do these tasks and I DO know how to do them.” Ever since, we have worked this way and have a great working partnership. Bob now even says that I’m worth 4 law clerks to him and 2 2nd year attorneys because I know his cases inside and out. IF YOU TRULY WANT PARALEGAL TASKS, DEFINE THOSE TASKS FOR YOUR PARTICULAR JOB AND THEN TAKE IT UPON YOURSELF TO DO THEM WITHOUT THE ATTORNEY’S PERMISSION OR KNOWLEDGE. If he doesn’t like what you do, or how you do it, simply sit him down and ask him “what part do you have an issue with, as I’m willing to change the way I do it to meet you standards”. I know a lot of paralegals with more than 30 years experience and we’ve all had conversations about how we got to do the tasks that parallel our education and experience and most have told me they earned it the same way – not simply waiting for an attorney to “approve” of them doing the work, they just sat down and did it. I would recommend that to all the paralegals on this list serve.

Linda Whipple
American Association for Justice’s 2009 Paralegal of the Year

It may be necessary to change this approach a bit depending on your attorney, but the basic concept is right. A paralegal could no worse than to include adopting this approach as a New Year’s resolution.

Will without action is an impossibility.

Sunday, December 20th, 2009

The title makes more sense in the context of a quote from a 91 year old woman who just received her paralegal certificate:

“Will without action is an impossibility and that’s what I’m passing on to you ladies out there. You can do it. If I can do it, you can do it. Just don’t wait as long as I did,” said Costrini.

More in a story from WTOC in Savannah, Georgia.

This applies to all of use, male and female, young and old. Anne Constrini clearly understands what it means to be empowered.

Knick Knack Paddy Wack – Updated

Thursday, December 17th, 2009

There are times when I’d really like to know the back-story on internet searches that lead to this blog. Today one was “knick knacks for paralegals.” On clicking through I was surprised but pleased to know that one of my posts earned the No. 1 slot on Goggle for that search, as is the case for “sexy paralegal assistant.” Anyway, if you are the one searching for knick knacks for paralegals, I’d love to hear from you!

Those of you looking for any real substance in this post are, I am sure, disappointed, but the title should not have raised your expectations.

UPDATE: There may be a point to be made here after all. Lynne Devenny at Practical Paralegalismposted yesterday regarding an Above the Lawthread dealing with holiday gifts from attorneys to their paralegals. As I read her post and got the part that says, “Based on comments to date, administrative legal staff can expect anything – a Wendy’s Frosty card, dinner for two at Red Lobster, cash – or nothing at all,” I began to cringe as I realized the Knick Knack search may have been an attorney looking for holiday gifts for a paralegal! Knock, Knock attorneys – Kno Knick Knacks. Your paralegals are professionals. Get real.

An Illinois Volunteering Opportunity

Thursday, December 17th, 2009

Several threads on discussion boards I’ve been reading laterly concern the difficulty of getting hired with no experience and the difficulty of getting experience if you can’t get hired. As mentioned in a previous post, one way to get that experience and network at the same time is through volunteering. Here’s an opportunity from the LinkedIn Paralegal Network:

From the Chicago Paralegal Network:
Volunteer with Illinois Legal Aid Online

http://www.illinoislegalaidonline.org/index.php?volunteer

Volunteer Opportunity Description: In an effort to make the legal information on http://www.illinoislegalaid.org , http://www.illinoislegaladvocate.org , and http://www.illinoisprobono.org available to a wider range of Illinois residents, we are looking for paralegals and other professionals to transcribe video webcasts that appear on these websites. The websites have over 400 webcasts that need to be transcribed for the deaf and hearing impaired. Webcast trainings are sponsored by a variety of organizations and present material in a variety of legal practice areas. The legal information presented in these webcasts is intended for low income Illinois residents, pro bono attorneys and legal aid advocates.

Volunteers with paralegal or transcription experience are preferred, but is not required for this work. Volunteers must be proficient typists. Legal expertise in a specific area is not necessary, as all transcribed material will be reviewed by an attorney prior to being posted on the website. Volunteers can be located anywhere, as all work can be conducted over the internet.

Interested volunteers should contact Multimedia Coordinator Susan Muirhead at 312.977.9047 ext. 17 or smuirhead@illinoislegalaid.org.

To paraphrase a previous post, doing good for others makes you feel better about yourself. The decision to do something beneficial to others with your time puts you in charge of that time rather than letting your circumstances be in charge of you. These two “attitude adjustments” will go a long way towards helping you find employment. After all, other factors being equal the candidate with the professional attitude is more likely to be hired than the one with out. These attitude adjustments will also take some of the sting out of the waiting-to-be-hired period.

Read herein below about superfluous words and Too Much Capitalization

Wednesday, December 16th, 2009

ABAJournal.com reports on a judge who has ordered lawyers stop using capitalization with abandon:

A federal bankruptcy judge is fed up with lawyers who use superfluous words and too much capitalization, and he has directed them to stop it.

U.S. Bankruptcy Judge Robert Kressel of Minnesota took a stand against legalese in new guidelines (PDF) for lawyers preparing proposed orders in his court, Legal Blog Watch reports, citing a story by Lawyerist.

Kressel says lawyers should eliminate superfluous words such as “hereby,” “herein” and “heretofore entered in this case.” The phrases “serve no purpose other than to make the document sound more legal, which is exactly the opposite of the goal that I am trying to accomplish,” he writes. “Compare the meaning of ‘Now, therefore, it may be and is hereby ordered that’ with ‘It is ordered.’ ”

Kressel also observes that “lawyers love to capitalize words. Pleadings, including proposed orders, are commonly full of words that are capitalized, not quite randomly, but certainly with great abandon. Please limit the use of capitalization to proper names. For example, do not capitalize court, motion, movant, debtor, trustee, order, affidavit, stipulation, mortgage, lease or any of the other numerous words that are commonly capitalized.”

This doesn’t fit in the “Consequences of Sloppiness” category as it is both (1) a preventative action rather than an imposition of consequences in a reaction to sloppy work and (2) addressing an area of document prepartion that does not involve sloppiness. However, the judge go on to admonish lawyers regarding proper use of the English language:

Kressel also says lawyers need to keep their plurals and possessives “straight and consistent,” need to watch verb tense, and need to use the possessive “its” and the contraction “it’s” correctly.

Don’t use “and/or,” he counsels. But do use articles such as “the,” “a,” and “an” as appropriate. Refer to “the debtor,” rather than “debtor,” for example.

The first is a simple matter of proofreading (assuming one knows the correct rules.) While I have often made such mistakes here on this blog, none of the posts are intended to be filed in court!

There are several points to be made here. First, a professional legal document is not a document filled with legal jargon and archaic language. Indeed, as Kressel suggests, the opposite is likely the case. Second, although this order is addressed to attorneys, it is likely paralegals will be charged with compliance. Third, it is necessary to know and practice proper use of the English language, a matter of reality my students, many paralegals and more than a few attorneys seem determined to deny.

The last point is well made in a recent guest post on The Paralegal Mentor blog by Lori Robinett, President of the Mid-Missouri Paralegal Association entitled, “Use of the English Language..” You should read the entire post, but here’s the sound bite:

Preciseness and accuracy are an absolute necessity. And the way you use language is a reflection on you and your employer. Take the time to learn the English language, pay attention to grammar, punctuation, and spelling.

Finally, the ABAJournal.comstory end with Kressel saying,“Write the way you would speak.” Unforunately, based on listening to many, many hours of listening to attorneys arguing motions and in other oral arguments, it seems he may regret the statement if attorneys take him literally!

Combating the “Hire an Out-of-work Lawyer as a Paralegal” Trend

Tuesday, December 15th, 2009

Grades are finally posted! I hope to catch up on some reading and make more regular posts over the next few weeks in between working on the new book.

There have been a number of posts here on lawyers taking jobs as paralegals, and how lawyers are ill suited for paralegal positions. Today I noticed a post on the Legal Assistant Today listserv discussion forum on this topic that states the case for “combating” this trend. It’s from Linda Whipple. Linda was recently awarded the American Association for Justice Paralegal of the Year Award according to Paralegal Today magazine. Congratulations, Linda!

I am hoping Linda will not mind me including her post here in toto:

Someone wrote that attorneys are signing up for paralegal jobs so that they can work since many attorneys aren’t being hired during the current recession. The way to “combat” this intrusion into our profession is to let the legal administrators and senior hiring partners know that attorneys know the law very well – that is what they are trained to do, but in order for a case to be MANAGED WELL and docketed thoroughly and discovery answered promptly – attorneys are NOT trained to do that – believe it or not they aren’t!! Let an attorney do case management and see what shape the entire case will be in very quickly. Those “attorney” paralegals also have to have an assistant – I finally have an assistant but only after decades of doing most of my work myself – I’m not training new paralegals who come into our firm and they learn by working side-by-side with me. Also, one GREAT argument to make is that if an Attorney can do paralegal work, then paralegals can do attorney work – hmmmmmm – that should make some legal administrators sit up and take notice. I guarantee you that I’ve seen 2 year associates come to me and ask me a question, “Linda, what do you think needs to be done next on this case?” I’m dumbfounded but never surprised because my cases are managed BY ME and I’m more than aware of what needs to be done every week. My tickler system in Outlook and my Tasks lists are extensive. I also work 30 days out from a deadline – got a pre-trial conference coming up? I’ve already set up the attorneys’ meeting, exhibit exchange (meaning I have my exhibits already prepared and ready for trial), and provided a draft of a pre-trial statement to my boss – this is a signal to Bob that we are now moving from “pre-trial” mode to “trial” mode. I also have his initial Trial Notebook set up with his witnesses, depo summaries, list of exhibits to be introduced by a particular witness. All this goes on Bob’s desk 30 days before the pre-trial and he can’t scream and shout he doesn’t have time to prepare. We just avoid all those kinds of problems from the get go. He likes how I work and he knows I ALWAYS have his back.

Public Interest and Professional Interest – More on the Canadian Example

Thursday, December 10th, 2009

I continue to watch developments in Ontario with great interest. There paralegals are licensed and thus subject to regulation by the “Law Society.” There have been two developments recently with regard to the Law Society. One, the upcoming election by paralegals members of the five of their colleagues to join the Paralegal Standing Committee of the Law Society of Upper Canada was the subject of a very good post on Paralegal Gateway in November.  This is part of an overall effort to reform and modernize the Law Society as described in this article from marketwire.com.

The second relates to the appointment of a new Complaints Resolution Commissioner by the Law Society.  While this relates to my recent post on a disclipinary proceeding in Ontario, I am more interested in it as a follow-up to the discussion in my post and the comments to that post, “Help and Hurting Each Other,” in terms of the purpose of regulating the legal profession. The article on the appointment of the new Commissioner, also from marketwire.com, speaks entirely in terms of “public interest:”

The Complaints Resolution Commissioner plays a vital role in the Law Society’s complaints resolution process. In cases where a complaint against a lawyer or paralegal has been closed and the complainant is unsatisfied with this result, he or she can apply to the Commissioner to review the case. The Commissioner will review the file to ensure that the complaint was handled appropriately and the results were reasonable. This will often involve a face-to-face meeting with complainants, and the Commissioner also has the authority to provide alternative dispute resolution between lawyers or paralegals and their clients for issues that do not require a regulatory response.

The Law Society of Upper Canada regulates the lawyers and paralegals of Ontario in the public interest. The Law Society ensures that every individual who practises law or provides legal services in Ontario meets standards of learning, professional competence and professional conduct that are appropriate for the legal services provided.

The Law Society has a duty to protect the public interest, to maintain and advance the cause of justice and the rule of law, to facilitate access to justice for the people of Ontario, and to act in a timely, open and efficient manner.

That being said, as noted by William P. Statsky in his book Essentials of Paralegalism,  there are two main reasons an ocupation may want to be licensed by the government: to protect the public and to enhance the occupation’s own image.  He notes that this applies to all occupations that require knowledge and skills that most citizens do not have including electricians, brokers and nurse. He goes on to say:

A license serves as a measure of assurance (altough not a guarantee) that license holders are competent to perform their speicalized and often tenchincal servies. In addition to a desire to protect the public, an occupation may want licensing as a way enhance its self-image, credibility, a nd professionalism. The occupation often views licensing as a way to prevent less-educated and less-skilled individuals from working in the field.

As previously noted it may also help prevent the less-scrupulous individuals from working in the field.

This remains a difficult topic and many questions remain. While licensing may be the answer, might the same be accomplished through self-reguation by the profession itself? Who is in the best position to determine the criteria for regulation? And many more.

The point is that the basis for a profession to seek and/or engage in some sort of regulation of its members may be found not only in the public interest, but in the interest of the profession and each professional individual member of that profession. This is especially true if, as in Ontario, it results in a greater role for paralegals within the legal system and greater access to justice by the public.