Archive for October, 2010

Working Professionallywith Administrative Agencies

Sunday, October 31st, 2010

My administrative law class recently had an assignment requiring that they interview a supervisor from a local, state, or federal administrative agency. Many found it difficult to do because they did not get timely responses to their calls. Some, apparently, simply waited for a call, never doing follow-up. This lead to some discussion on the class discussion board.

There is no doubt it can be difficult getting return calls and appointments with administrative agency personnel. That is one of the points of going through this particular assignment. It is frequently the job of a paralegal to get information from an agency under a fairly tight schedule.

Let’s assume the president of a major client company is coming in for a conference in a week. She  expects a clear, up-to-date report on the status of her company’s dealings with an agency – dealings which your office has been handling. The attorney assigns you the job of getting the necessary information from the agency. You have just one week to get that information and an explanation from someone knowledgeable at the agency. Reporting back to the client that you left a message and there was no return call will likely lose the office the company’s business!

Several of students noted getting what you need in these situations requires a combination of patience, persistence, respect, and other skills. In fact it requires a balance of those skills. Too much patience and you’ll never get a call back as they will spend their time dealing with more persistent people. Two much persistence, especially if it is rude, disrespectful, or otherwise unprofessional will result in a complete lack of cooperation. As many of you noted, you get only one shot at the person, so it is essential to (1) know what you need to know, (2) know who to ask for it, and (3) know how to ask for it. Otherwise, you may find yourself unable to complete the job assigned to you by the attorney.

So the question is, “What is the professional balance of persistence and patience, respect and insistence, when dealing administrative agencies, clerks and the like?” I, and my students, would like to hear from you. How do you handle these situations?

Berkshire Assoc. for Paralegals and Legal Secretaries Offers Scholarships

Saturday, October 30th, 2010

I’ve just returned from the AAfPE National Conference in Indianapolis where I was reminded once again of the importance of professional associations to their professions, their members, and their communities. The following example from iBerkshires.com caught my attention:

WILLIAMSTOWN, Mass. — The Berkshire Association for Paralegals and Legal Secretaries has distributed scholarship applications to guidance offices at the following high schools: Berkshire School, Charles H. McCann Vocational Technical High School, Drury High School, Great Barrington Waldorf High School, Hoosac Valley High School, Lee Middle and High School, Lenox Memorial High School, Miss Hall’s School, Monument Mountain Regional High School, Mount Everett High School, Mount Greylock Regional High School, Pittsfield High School, St. Joseph Central High School, Taconic High School and Wahconah Regional High School.

Students are encouraged to pick up an application at their guidance office. Qualifications include being a graduating senior from a Berkshire County high school with a minimum B average, who is pursuing secondary schooling in paralegal studies, legal secretarial program, political science, criminology, or any legal related field; or any individual interested and qualified to enter an established course for paralegal studies, legal secretarial program, political science, criminology or any legal related field.

Applications must be returned by the deadline of March 25, 2011 to Attention Of: Pamela J. White, Berkshire Association for Paralegals and Legal Secretaries (“BAPLS”) Scholarship Committee c/o Thomas P. McHugh, P.O. Box 36, Williamstown, MA 01267.

I’d offer to help with the judging, but I have a bias relating to Wahconah Regional High School from which I graduated in 1969. I won’t discuss here in which direction the bias leans!

Discussing Civility in Indianapolis

Monday, October 25th, 2010

I’m off soon to Indianapolis to present at the AAfPE National Conference on the role of paralegal educators in teaching civility. I’m in the final stages of preparing for that discussion. Any suggestions from paralegals, paralegal educators, or paralegal students would be greatly appreciated.

Proving Prevailing Paralegal Rates

Tuesday, October 19th, 2010

Legal.com brings us another case in which the court has ruled on the reasonableness of paralegal fees as part of an award of attorney’s fees: MARTINEZ v. JOHARY Case No. 5:08-cv-148-Oc-10GRJ. This case is a bit more straight-forward than the last in which the court had to distinguish between paralegal and non-paralegal (clerical) services. In this case, brought under the Fair Labor Standards Act, the employees attorney had submitted an affidavit pegging her rates at $300 an hour and the paralegal’s at $105 an hour.

The court did not have a problem with either rate per se, but was concerned that the rates were not those “prevailing” in the local market, which the court determined to be the U.S. Middle District of Florida (as the case was pending in that court). The problem was

The Plaintiff has not submitted any “specific and detailed evidence” concerning prevailing market rates in Ocala, Florida. Instead, the Plaintiff has merely attached the affidavit of her own attorney, which lists fee awards obtained in FLSA cases litigated in Orlando, Jacksonville, and Ft. Meyers, Florida (Doc. 24-1, ¶¶ 6-7). However, evidence establishing that a rate is in line with prevailing market rates must be “at a minimum more than the affidavit of the attorney performing the work.” Norman, 836 F.2d at 1299. In fact, “[t]he parties ought to provide the court with a range of market rates for lawyers of different skill levels . . . involved in similar cases with similar clients, so that the court may interpolate the prevailing market rate based on an assessment of the skill demonstrated in the case at bar.” Id. at 1300.
The Plaintiff has failed to satisfy the requirements of Norman. While the Plaintiff is correct that Judges of this District have previously awarded Ms. Amritt fees based on a $300 hourly rate, all of those cases were litigated in much larger urban areas with higher costs of living than Ocala, Florida. Moreover, this was a very straightforward case, with no novel or complex issues and minimal discovery. In the absence of any competent evidence concerning the prevailing market rate in Ocala, the Court will rely on its own competence and experience and concludes that an hourly rate of $250.00 is reasonable. SeeMoon, 2009 WL 111678 at *6. The Court further concludes that the hourly rate for the Plaintiff’s paralegal will be reduced to $100.00.

This poses an interesting problem for attorneys seeking recovery of paralegal fees on behalf of a client. What evidence might they provide, other than their own affidavits, of the prevailing rates for paralegals of varying degrees of experience and skill leval in the local market.

It seems to me that local paralegal associations may have a significant role to play in tracking such data and providing the necessary affidavits for inclusion with motions for fees. This ought to be better data than the court’s own “competence and experience,” which is likely to be limited to attorney affidavits filed in other cases unless the judge is fairly new to the bench and has had recent experience paying paralegals.

Another question is how one would determine the skill level of the paralegal. Here it would seem that one or more of the certification programs provided by organizations like NFPA, NALA, OLP, etc., might come into play.

On both issues, this appears to be an opportunity for paralegal associations to gain a greater presence as professional organizations.

Making sure jurors like what our actions say about our client

Wednesday, October 13th, 2010

Lynne Devenny at Practical Paralegalism  has a well-done post that starts with a quote describing interviews with jurors who, “were seriously annoyed by some of the sneers, body language, guffaws and antics of the fire-breathing “let’s kick some ass” associates and paralegals in the firms helping the plaintiff and the co-defendant in and out of the courtroom.”

Lynne goes on to point out,

If you have been to a trial, you’ll know that jurors sometimes aren’t thinking about what you hope they’re thinking about (the trial), and they really are closely scrutinizing the lawyers and their assistants – their demeanor, their clothes, their hair, and heck, even their socks if the distance is too far between trouser hem and shoe – in and out of the courtroom.

Bottom line, paralegals assisting at trial do have to be careful not to be a distraction on many levels.

I recommend the full post for Lynne’s history as a nerd, but want to focus on her point a bit more as it is more important than many paralegals seems to realize. It is, indeed, necessary that the trial paralegal keep it in mind for themselves and the clients while the attorney focuses on other aspects of the trial presentation.

I focus on this in The Empowered Paralegal: Effective, Efficient, and Professional,  primarily addressing the issue of dress, but as the following passage suggests it applies to all activities, which are more directly discussed with regard to paralegals in another section of the book:

[D]ressing for success  does not mean “look successful.” It’s my way of saying you have to be aware that the jury is not just looking at the evidence as presented; it is looking at the presenters of the evidence.

Many times the best dog and pony show wins a case (as long as the case is otherwise well prepared). Consider a real circus dog and pony show; the performer and the atmosphere are at least as important as the acts performed. This principle applies to almost any performance meant to leave an impression or make a point on an audience. Every political operative considers not just what is being said, but the backdrop for the speech. Rock stars don’t just sing – they perform. The jury is your attorney’s audience. They are watching, and waiting for, the show.

Like most performers, your legal team is “on” every moment the jurors are in the jury box (and when they are entering or leaving the box). They are watching not just the witness on the stand and the attorney examining the witness, but also the rest of the “performance.”

In this respect it is important how the performers dress and appear to the jury. The performers include the attorney, the paralegal, the client and the witnesses. Each of you most dress appropriately for your role keeping in mind that you must dress for the jury.  Even jurors who seem to be paying little attention seem to notice clothing – distracting ties, short skirts, body-piercing and tattoos.  If a client is pleading poverty, she cannot show up day after day in $300 dollar outfits, dazzling jewelry, $30 nails and $50 hair.  (In my early days of practice a client met me at the courthouse for a hearing to determine whether she was in contempt of court for failure to pay a $100 fine in exactly that fashion.) An expert witness will not impress a jury if he dresses unprofessionally. In fact, he should dress for the jury’s conception of his profession – a doctor as a doctor, a contractor as a contractor and a professor as a professor.

Remind clients and witnesses that they are subject to observation by the jury anytime jurors are present. A jury will assume that a client who is rude to, or snarls at the other party, was equally rude and disagreeable during the event or events that led the parties to court, regardless of how that client or witness presents on the stand. In fact, a client or witness who acts differently on the stand than when he thinks the jury isn’t watching is telling the jury not to believe him as his presentation on the stand is not the “true” him.

Jurors generally do not react favorably to clients who mumble “that’s a lie” under their breath, gasp and shake their heads in reaction to a witness’ testimony.  Clients who squirm, constantly adjust their clothes (this happens a lot with clients not used to wearing a tie who “dress up” just for the trial), or fidget nervously may look as though they have something to hide.

Clients and witnesses seldom of much awareness of these factors. The poverty pleading client who dressed so fashionably in the example above simply had no conception of how her appearance clashed with the purpose of the hearing. They need to be informed by the paralegal. Preparing the clients and witnesses in this way is an important part of overall part of preparing and managing litigation.

Legal professionals represent the clients. From the juror’s perspective this means what we do says something about our clients. It is our job to make sure the jurors like what our actions say about our client.

Paralegal license required in Louisiana?

Tuesday, October 12th, 2010

I’ve previously posted on the curious happenings in a Louisiana parish (equivalent of a county in most other jurisdictions). The parish was unable to find any records relating to the employment of an ex-spouse of a former parish president, although she supposedly performed the job and was paid for that performance for 18 years – $64,000 in at least the last of those 18 years. However, my interest focused on the statement, “However, the parish was unable to provide proof she has the required certification to hold that position.” My question was what would be the “required certification” to hold the position given the lack of any uniformity within the paralegal profession regarding certification requirements for paralegals, much less a “paralegal supervisor.”

There was another story shortly thereafter about a candidate for Kenner (Louisiana) mayor, having trouble justifying his claim that he worked as a paralegal in the Jefferson Parish Attorney’s Office. He produced a copy of a letter on Jefferson Parish letterhead from the parish attorney at the time transferring him from Citizens’ Affairs to the attorney’s office as a full-time paralegal making $11.75 per hour effective two days earlier. He also provided a parish personnel form noting his resignation as a paralegal. My question at the time, to which there appears to be no answer was by what standard did the man qualify to work as a paralegal anywhere at anytime?

Now there’s a story on NOLA.com reporting, “Former Jefferson Parish President Aaron Broussard and former Parish Attorney Tom Wilkinson may have committed payroll fraud by approving $45,000 in excess pay to Broussard’s wife and hiring two politically connected people as paralegals who lacked required licenses, according to a report released by the state Legislative Auditor.” So again my question is, what are the required licenses to be a Jefferson Parish paralegal? I am not aware of Louisiana having enacted any licensing requirements for paralegals at all and would be quite pleased if someone could point out what this is referencing.

Just to be clear, as I have previously noted, there are real, competent, professional paralegals in Louisiana and they deserve better than to have their professional identity usurped in this fashion. There is also a very good paralegal educational program at Tulane University directed by Sallie Davis, a graduate of my alma mater, the University of Maine.

Senior Partner Murdered in Tulsa Paralegal Mentor Presentation!

Monday, October 11th, 2010

It’s been a busy time here at OleMiss with mid-term exams (the fact that I’m teaching media ethics in the School of Journalism this semester may help explain the alarmist headline for this post) and my preparations for a presentation on the role of paralegal educators in teaching civility scheduled for October 26 in Indianapolis for the AAfPE National Conference, but I do want to take a minute to note that Vicki Voison, The Paralegal Mentor is also speaking to a conference and her presentation is this week! Here’s her announcement:

This Saturday, October 16th, I’ll be in Oklahoma speaking at the Fall Conference of the Tulsa Area Paralegal Association (TAPA). The conference takes place in at the Holiday Inn – Tulsa Center.

This 90 minute presentation will cover ethics issues related to the law firm’s technology system. The mystery will focus on issues of confidentiality and privilege and take you through the tangled web of electronic equipment, blogs, email, metadata, social media…and more.
My goal is to talk about ethics for 90 minutes and keep attendees awake at the same time. I’ve come up with a good way to do that…we’ll be solving a mystery! Oh, dear…the Senior Partner has been murdered! Carolyn, a litigation paralegal with the firm, believes there are clues within the firms technology system that will point to the murderer. She enlists the help of the firm’s IT guru, McTechie…and they’re off.
If you’re in Tulsa and want to help figure out who murdered the Senior Partner…as well as learn a lot about law firm ethics…just click on this link for more information and to register. See you there!

If I were in Tulsa on October 16th, I’d be checking in on Vicki’s presentation and the rest of the Tulsa Area Paralegal Association (TAPA) conference.

Paralegals, Day In and Day Out

Wednesday, October 6th, 2010

I’m a fan of state paralegal days and weeks, and have posted regarding some of the declarations promulgated by governors designating these events. So I was pleased to see lawcrossing.com’s article on paralegal days. I especially like the Michigan statement of Michigan Governor Jennifer M. Granholm website that “the Bench and Bar have been able to respond to the dramatic increase in court caseload in recent years as a result of the evolution of the paralegal profession” and “the citizens of Michigan are better able to afford quality legal services because of the evolution of the legal profession.”

As the article notes, “Although paralegal days differ from state to state, the theme of appreciation that inspires them is the same,” but this declartions acknowledges not only that “paralegals have made to the legal profession over the years by taking on a large amount of legal work previously done only by attorneys,” but that the paralegal profession is evolving. Recognition of that evolution is helpful towards further evolution of the profession and, I believe, the evolution of a solution to access to justice problems that goes beyond simply allowing “”the Bench and Bar have been able to respond to the dramatic increase in court caseload.”

As professional responsibilities grow, so does the profession

Tuesday, October 5th, 2010

According to ABAJournal.com “The [Bureau of Labor Statistics ] report says the legal sector will grow faster than the average for all jobs, but it will add the fewest jobs among professional occupations. Lawyers will account for 98,500 new jobs, while paralegals and assistants will account for 74,100 jobs—a 28 percent growth rate—as they begin taking on more tasks once handled by lawyers.”

As the article notes, not everyone is so optimistic for lawyers:

The outlook from ABA “recession czar” Allan Tanenbaum isn’t as bright, the newspaper says. Tanenbaum is chair of the ABA Commission on the Impact of the Economic Crisis on the Profession and Legal Needs. He told the Tennessean that the country’s economic problems have hit law grads particularly hard.

It’s not unusual to see law graduates working as department store clerks while handling pro bono cases to boost their resumes, he said. The median income for U.S. lawyers is about $75,000, far below the $150,000 starting salaries that so many new law students hope to earn, he added.

While there is no doubt that the slow economy has affected all parts of the legal team, I do side with the optimists at least to the extent that professional paralegals will  begin taking on more tasks once handled by lawyers, and therefore grow as a profession. This means the more professional paralegal become the more the profession itself will grow.

A retired paralegal stands up

Tuesday, October 5th, 2010

An interesting story out of Lexington, Kentucky, reports on a retired paralegal who is using his knowledge and experience to clarify reporting regarding an adoption dispute. The adoption dispute itself must be agonizing for all concerned and is not the topic of this post. Rather, it is the paralegal:

David Houston was a paralegal for 32 years who has worked on Ohio adoption cases. He started digging into court records after hearing this one still wasn’t settled after three years and said things are being mis-reported.

I do not know why David decided to become involved in this matter so I also won’t comment on his involvment itself. The point for me is simply that this story illustrates so of the abilities of paralegals. It appears David was able to look at the news reports critically and determine something was wrong. He then used his investigative, research, and analytical skills to determine what was wrong and provide the correct information in a usable and understandable format. It also appears that this action was self-initiated.

Of course, I’m drawing my conclusions from a news report which could be wrong or misleading. If so, perhaps David or another astute paralegal will locate and provide the correct information!