Archive for January, 2011

Good Wills Return Good Will

Monday, January 31st, 2011

I’ve been remiss in posting as I put the finishing touched on The Empowered Paralegal Professionalism Anthology. It’s due today, so the last week has been hectic as it was also the first week of classes. And I’ve had formatting problems – any one know how to get Word 2010 to restart footnotes at a new section? Just telling it to do so using the toolbar does not seem to work! 

But enough about me. This post is about volunteer paralegals. John Brubaker at Lancasteronline.com reports:

First responders and volunteer attorneys and paralegals exchanged a lot of good will here Saturday.

They also exchanged a lot of good wills.

“First responders are always thinking of us,” said Denise Farrell, president of the Lancaster Paralegal Association. “We’re here to thank them for putting their lives on the line for us every day.”

The thanks came in the form of wills, powers of attorney and living wills drawn up by attorneys and notarized and witnessed by paralegals at no expense to police, firefighters, paramedics and other first responders.

The legal volunteers and first responders mingled at the Lancaster County Public Safety Training Center near Manheim in the first Wills for Heroes event held in the county this year.

Instead of charging $250 or more for the services, the attorneys and paralegals provided pro bono advice and processed all legal forms without charge.

“It’s one way we can give back to them for what they do,” said J. Dwight Yoder, president of the Lancaster Bar Association, which coordinates the program along with the paralegal association.

Read more: http://articles.lancasteronline.com/local/4/344763#ixzz1Cdkw1syf

I written here often on the benefits of volunteering to the community, the profession, and the volunteer. Check out the “Volunteering” category for other stories of paralegals doing good by doing what they do so well.

Emotional Labor and the Attorney/Paralegal Relationship

Monday, January 24th, 2011

In The Empowered Paralegal: Effective, Efficient, and Professional I devote a chapter to managing the paralegal’s relationship with the attorney(s) with whom the paralegal works. One aspect of that relationship is its highly personal nature. The paralegal must be aware of their own needs and those of the attorney, often managing the latter (as they cannot change those needs.) My recent research lead me to an article entitled, “Emotional Labor Among Paralegals,” by Jennifer L. Pierce of the University of Minnesota. (The ANNALS of the American Academy of Political and Social Science January 1999 vol. 561 no. 1 127-142)

The articles abstract provides a good summary of the article:

Despite the invisibility of emotional labor among paralegals, this dimension of work has significant consequences for the reproduction of the labor process in the large bureaucratic firm and for the psychological well-being of paralegals. These legal workers function to support and maintain the emotional stability of the lawyers for whom they work through deferential treatment and caretaking. By affirming the status of lawyers, paralegals also reproduce gender relations in the law firm. Most attorneys who receive caretaking and support are men, and the majority of the legal assistants who provide these emotional services are women. In this way, the emotional labor required of paralegals serves to reproduce the sex-segregated structure of law firms.

While there are always issues with the methodology of this particular type of study, Pierce’s study does seem to confirm what may paralegals have expressed instinctively:

As I discovered in my 15 months of fieldwork at two large law offices in the San Francisco Bay Area, what often distinguished the work of paralegals from that of attorneys was not a set of mental tasks related to semiprofessional and professional status but, rather, the socioemotional requirements of each job. Unlike lawyers, who were expected to be alternately intimidating and strategically friendly, paralegals were expected to nurture or mother their bosses.

and

In contrast to Max Weber’s classic conception ([1922] 1946) of a rationalized, depersonalized bureaucracy,
the relationship between paralegal and attorney in the large law firm is a highly personal one. This fact is supported by the numerous statements lawyers made during my fieldwork, emphasizing the importance of personality traits over work performance skills in hiring decisions.

The gender discrimination effects of this relationship can and should change. In fact, it is my thesis that as paralegals grow as a profession, gaining more professionalism and more respect from the attorney, other effects will also be reduced. However, it is not likely that the highly personal nature of the relationship and the need for emotional labor on the part of the paralegal will change under our present system of law education and practice, at least in large firms. Thus the ability to understand, communicate with, and manage the attorney(s) with whom they work will continue to be one of the basic of paralegal empowerment and professionalism.

An Explosion with no Bang

Friday, January 21st, 2011

As is no secret by now, this commentator argues that well-trained, well-regulated, professional paralegals provide one viable answer to the access to justice issue. In support I’ve quoted authorities such as Giliam Hadfield, a Harvard law professor arguing in The Washington Post for innovative approaches to low-cost, quality legal services. He notes,

…in U.S. surveys 30 to 40 percent of Americans with an identifiable legal problem say they do nothing to resolve it, compared with just 5 percent in Britain. Yes, Britain spends far more public funds on ensuring access to justice — $76 in legal aid per capita compared with $13 in the States (including charitable contributions). But the critical difference is the widespread and diverse availability of help in Britain and other advanced-market democracies for people with legal troubles — not just criminal arrest but issues such as foreclosure, divorce, child custody, employment and bankruptcy. The United States urgently needs to expand capacity for non-lawyers to meet the legal needs of ordinary Americans in innovative and less costly ways. [Emphasis added.]

To this I can add the comments of Lester Brickman, Professor of Law at the University of Toledo College of Law writing in the University of Vanderbilt Law Review:

If access to legal services is thus essential for the attainment of democratic values, then the efficacy of the legal delivery system is of supreme importance. Much has been written examining the inefficiency of present methods of law practice as a means of conveying services to the consumer, and still more written decrying the shortage of basic legal services for the poor and for the middle class. In response to this criticism and as a way of meeting other needs, the profession is trying such new delivery systems as group legal services, prepaid legal insurance and specialized practice. Additionally, there has been a virtual explosion of interest in using legal paraprofessionals to assist the lawyer in supplying legal services.

The problem is that Professor Brinkman’s article, “Legal Paraprofessionalism and Its Implications: A Bibliography,” appears in 24 Vand. Law Review. Yes, volume #24 published in 1970-71. How can it be that forty years after a virtual explosiong of interest in using legal paraprofessionals to assist the lawyer in supplying legal services to the poor and middle class that Professor Hadfield can state:

“My research suggests that Americans have a much higher rate of simply giving up in the face of legal difficulties, with effectively nowhere to turn if they cannot afford a lawyer who comes at a minimum price of $150 an hour. This means giving up on seeing their children or saving their homes or credit ratings or jobs. Unlike people in Britain, those facing legal problems in the United States can’t turn to local volunteer organizations, their unions or consumer organizations. They can’t buy what they need from entrepreneurs or the full-service stores like Wal-Mart that now package low-cost eye exams, insurance, banking and more with their diapers and detergents”?

And after forty years,

The United States stands largely alone in advanced-market democracies in drastically restricting where and how people can get help with their legal problems. In all states, under rules created by bar associations and state supreme courts, only people with law degrees and who are admitted to the state bar can provide legal advice and services of any kind.

Paralegal v Lawyer

Wednesday, January 19th, 2011

No, this is not another post on the dangers of lawyers doing paralegal jobs when it is abundantly clear that paralegals are trained to do that job and are thus much better at it than lawyers. It is the actual citation name for a 1992 case out of Pennsylvania, Paralegal v Lawyer ,783 F.Supp. 230 (1992). The court notes the reason for using the generic terms rather than the names:

Because this case devolved from disciplinary proceedings, yet pending, and unresolved before the Disciplinary Board of the Supreme Court of Pennsylvania, and because such proceedings are generally to be adjudicated in private, Pennsylvania Rules of Disciplinary Enforcement, Rule 402 Confidentiality, see, e.g., In re Anonymous No. D.B. 88, 5 Pa.D. & C. 4th 593 (1989), the names have been changed to protect the presumptively innocent. Although the case number is public record, I would hope that the news or legal reporters would see fit to exercise similar restraint, at least until verdict. Of course, I in no way so order, being mindful of Amendment One.

The case is interesting not just because of the name, but because it deals with an issue which has been a frequent topic here recently – paralegals dealing with (alleged) unethical conduct on the part of the attorneys for whom they work. Here’s the basics, which may sound all too familiar, but are really from 18 years ago:

This is a diversity case, governed by Pennsylvania law and asserting wrongful discharge from employment. Defendant moves for summary judgment, essentially averring that the discharged plaintiff, a paralegal employed by the defendant, a lawyer, has no cause of action because of the virtually impervious employment-at-will doctrine in Pennsylvania, see Hall v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990), and because, asserts defendant, plaintiff did not perform her job to his expectations, to say the least.

Plaintiff counters that she was, in today’s parlance, a whistleblower, fired in retaliation for calling evidence of her employer’s alleged misdeed to the attention of her employer’s attorney in a matter brought against her employer-lawyer, then pending before the Disciplinary Board of the Supreme Court of Pennsylvania. She 231*231 argues that a retaliatory dismissal in the context of a profession such as the law, which is licensed and regulated by the state, falls within the public policy exception to the at-will doctrine. In fairness to the defendant lawyer, it must be said that he vigorously denies her charges, and claims that she is mentally unbalanced, vindictive, and perjurious. It is fair to say that he speaks ill of her and she of him.

In any event, more fully, plaintiff avers that the reason for her firing was that she had notified her employer’s lawyer in the disciplinary matter that her employer had submitted to the Disciplinary Board a back-dated letter to the complainant in the disciplinary proceeding, thus fabricating a false record. Plaintiff states that the defendant told her over the phone, while she was in the hospital, that he had authored and typed the letter himself. The apparent purpose of the letter, according to plaintiff, was to deceive the Disciplinary Board into thinking that he had earlier communicated with his client, thus thwarting a disciplinary complaint.

Upon receiving this letter, the lawyer’s lawyer immediately wrote defendant about it, and sent him a copy. The very next day, the defendant placed plaintiff on suspension, and shortly thereafter he terminated her. Plaintiff asserts that this falls within the clear public policy exception to the at-will doctrine. For purposes of this Rule 56 summary judgment motion, I agree.

The full case is here.

Professional Preparedness

Tuesday, January 18th, 2011

In a recent post I ran a humorous and fictional example of legal reasoning taken from Judge Larry Primeaux’s blog noting, “I recommend that every paralegal and lawyer put the Mississippi 12th Chancery District’s Judge’s blog on their RSS feed because of his great checklist and commentary on topics from probating lost wills to final decision making authority in joint custody situations (both of which appear in the last week.) While the focus is on Mississippi law, the concepts are applicable everywhere.” Today I’ll give an example. The judge today posts, “CORROBORATION PROBLEMS = DIVORCE PROBLEMS

While the corroboration problems of which he speaks relate to the need for a particular type of proof needed in divorce actions in Mississippi, he ends by noting, “The easiest thing in the world is to tell your client, “Be sure to bring a witness to court who can back up your testimony about how he mistreated you.” That’s a ticket to failure, though. You need to investigate and identify who are the witnesses and what is the competent evidence that will make your client’s claim. It is no less important than discovering the value of that securities account or uncovering that hidden bank account.” For me this illustrates two major problems that frequently lead to poor performance by the legal team and go well beyond application of particular laws of any state.

First, professionalism requires that every member of the legal team be prepared. For any matter that must be brought to court that preparation must be centered around the requirements of the statute or case law that establishes the cause of action or defense. I am presently working on The Empowered Paralegal Cause of Action Handbook, which focuses on the need to analyze a cause of action or defense into its basic elements and use those elements as the framework for preparing an investigation, a complaint, a defense, discovery, both direct and cross-examination – the entire process of obtaining a favorable result for a client. This form of preparation is introduced in The Empowered Paralegal: Effective, Efficient and Professional especially in the chapter on organizing a trial notebook and evidence tree around the pertinent elements. One point being made by the judge is that some legal teams are unsuccessful simply because they do not fully analyze and understand what is required of a particular cause of action or statute. (Hence his frequent and well-done litigation checklists.)

Second, simply telling a client to bring a witness for any purpose, is likely to lead to disaster. It assumes that a client understands the issues at stake, the nature of a witness testifying, etc. Assuming such understanding is often disastrous for the legal team. Assuring such understanding is, to a great degree, the role of the paralegal. Especially, when the attorney expects the client to perform functions that pertain to the success of the legal team, the client must actually be made part of that team. Paralegals are uniquely suited to obtaining the requisite cooperation from a client.

Profesionalism: Being Competent and Maintaining a Credible Front?”

Monday, January 17th, 2011

“The Cultural Study of Work,” an anthology compiled by Douglas A. Harper, Doug Harper, and Helene M. Lawson, (2003) contains an article by Kathryn J. Lively, entitled Occupational Claims to Professionalism: The Case of Professionals that is an interesting read. It’s available in it’s entirety online (go to Goggle Scholar and type in “paralegal professionalism”), but I cannot download or copy-and-paste from the article. Lively conducted an open-interview study of over 50 paralegals to gather an understanding of how individual paralegals understand “professional” and “professionalism,” stating:

Given paralegal’s position in the middle of the occupational continuum, as paraprofessionals they make ideal respondents for studying the appropriation of the symbols “professional” (and the corresponding symbol “unprofessional”) and “professionalism” by nonprofessional workers. Paraprofessionals are members of occupations organized around the work of a master profession. They lack the requisite job autonomy, and, in some cases, depth of experience or knowledge to be full-fledged professionals. [citation omitted] In this case, paralegals are members of an occupation that serves attorneys, but they lack the job autonomy, experience, and knowledge to practice law without attorney supervision.

While some may argue that this is just a matter of definition and anti-competitive rules established by the ABA, i.e., that paralegal have the requisite experience and knowledge to practice some law, just not law as an attorney does, and the lack of job autonomy emanates from the ABA’s refusal to yield any part of law practice to non-lawyers, we will leave that aside for the moment and focus on the results of Lively’s study.

Lively explains,

Because professionalism was an important part of paralegals’ work identity, whenever they used “professional” or “professionalism,” I asked them what these words meant to them personally.  Although no two paralegals completely agreed on what it meant to be professional, they identified two sets of norms they used for judging their and others’ behavior: being competent in one’s work and maintaining a credible front. [Citations omitted.]

She concludes, in part,

Note that, at least for these paralegals, being competent often meant withholding anger, exhibiting civility, and stifling pettiness, which is reminiscent of earlier discussions of display and feeling rules in the workplace. Indeed one of the most striking observations about the use of the term “competency” by paralegals is the degree to which it often contained an emotive element in addition to the basic skill, knowledge and ability required to perform the job….In fact, many paralegals believed that the manner in which they completed their work was almost as important as whether or not they completed the work. [Citations omitted.]

For these paralegals, professionalism, or “being professional,” required not only that they do their jobs, but that they do them with good attitudes (or at very least the appearance of good attitudes.)

None of this is news to most of the readers of this blog in posts such as “Feedback, Attitude, and Control.” We’ve discuss the role of attitude in professionalism here before. To an extent I disagree with this statement of attitude being merely maintaining a credible front, as the statements of the paralegals seem to go well beyond that. However, the article itself is quite interesting and well worth reading.

Beyond the “Bad” Boss

Saturday, January 15th, 2011

Several discussions here, a section of The Empowered Paralegal: Effective, Efficient and Professional and an article I wrote for KNOW: The Magazine for Paralegals have dealt with handling difficult and unethical bosses. Here are the essentials of a story about a boss that goes beyond bad from The Salt Lake Tribune withe the headline “Attorney pleads not guilty to stalking his paralegal, shooting at her condo:”

A Salt Lake-area criminal defense attorney charged with stalking his female paralegal and firing shots at her Cottonwood Heights condominium last year waived his right on Thursday to a preliminary hearing…

On June 2, windows were shot out at a condo rented by the 29-year-old woman, who worked for Stone at the Midvale law firm Stone & Law. No one was home at the time.

Soon after, the woman was telling co-workers about the shooting when Stone, her boss, admitted to firing the shots, according to charging documents.

While reporting Stone’s comment to police, the woman also reported that Stone had been stalking her — both before and after the shooting — via phone calls and text messages, charges state.

The woman claimed that before the shooting, Stone had contacted her multiple times while intoxicated to express “romantic feeling for her” and make “sexual remarks to her,” charges state.[Emphasis added.]

While I focus a lot on managing the paralegal/attorney relationship even with difficult bosses, I do not advise attempting to manage a relationship with a boss like this. Do not wait for shots to be filed. You owe it to yourself and your self-respect, to terminate employment with such a boss without delay. Then report him/her for sexual harassment. It is advisable to consult with an attorney from another office regarding how to handle the termination and report, but not whether to terminate.

Pro Bono Benefits

Wednesday, January 12th, 2011

I’ve posted here previously on the benefits of doing pro bono paralegal work, i.e., volunteering. In a recent report regarding a Chicago area legal aid group, a paralegal volunteer sums it up quite well:

Wendy Dávila, a three-year CGLA volunteer, takes the time out of her busy schedule as a full-time paralegal to help CGLA as interpreter for Spanish speaking potential clients. She finds great satisfaction in helping the community.

“Giving back is one of the biggest satisfactions, at least to me,” Dávila said. “I do it because it comes from the heart and it makes me feel good. I don’t expect anything in return.” Dávila said working with CGLA has not only helped Chicagoans in need–it has helped her personally as well.

“…You develop new friendships, gain important skills and experiences that will help later in life. You also build confidence and self-esteem, make connections that can lead to a job or career and most important[ly], [are satisfied by] getting things done and helping others.”From family and housing law to criminal defense, CGLA wants all residents to know their options.

And it helps meet ethical requirements!

Legal Reasoning Run Amok

Saturday, January 8th, 2011

I recommend that every paralegal and lawyer put the Mississippi 12th Chancery District’s Judge’s blog on their RSS feed because of his great checklist and commentary on topics from probating lost wills to final decision making authority in joint custody situations (both of which appear in the last week.) While the focus is on Mississippi law, the concepts are applicable everywhere. But, realizing that many people (especially my students who are at least as good at ignoring my recommendations as clients are) simply ignore my recommendations, I frequently just steal the judge’s posts and re-post them here. This is one of those occasions. In this case, I’ve even stolen the title:

This is a faux Canadian appellate case that I remember studying in law school and ran across recently.  It was actually written by a law professor as a parody of legal reasoning, but, scarily, it could easily be mistaken for the real thing.

IN THE SUPREME COURT

REGINA

V.

OJIBWAY

Blue, J. August, 1965

This is an appeal by the Crown by way of a stated case from a decision of the magistrate acquitting the accused of a charge under the Small Birds Act, R.S.O., 1960, c. 724, s. 2. The facts are not in dispute. Fred Ojibway, an Indian, was riding his pony through Queen’s Park on January 2, 1965. Being impoverished, and having been forced to pledge his saddle, he substituted a downy pillow in lieu of the said saddle. On this particular day the accused’s misfortune was further heightened by the circumstance of his pony breaking its foreleg. In accord with Indian custom, the accused then shot the pony to relieve it of its awkwardness. The accused was then charged with having breached the Small Birds Act, s. 2 of which states: “2. Anyone maiming, injuring or killing small birds is guilty of an offense and subject to a fine not in excess of two hundred dollars.” The learned magistrate acquitted the accused holding, in fact, that he had killed his horse and not a small bird. With respect, I cannot agree.

In light of the definition section my course is quite clear. Section 1 defines “bird” as “a two legged animal covered with feathers.” There can be no doubt that this case is covered by this section.

Counsel for the accused made several ingenious arguments to which, in fairness, I must address myself. He submitted that the evidence of the expert clearly concluded that the animal in question was a pony and not a bird, but this is not the issue. We are not interested in whether the animal in question is a bird or not in fact, but whether it is one in law. Statutory interpretation has forced many a horse to eat birdseed for the rest of its life.

Counsel also contended that the neighing noise emitted by the animal could not possibly be produced by a bird. With respect, the sounds emitted by an animal are irrelevant to its nature, for a bird is no less a bird because it is silent.

Counsel for the accused also argued that since there was evidence to show accused had ridden the animal, this pointed to the fact that it could not be a bird but was actually a pony. Obviously, this avoids the issue. The issue is not whether the animal was ridden or not, but whether it was shot or not, for to ride a pony or a bird is of no offence at all. I believe counsel now sees his mistake.

Counsel contends that the iron shoes found on the animal decisively disqualify it from being a bird. I must inform counsel, however, that how an animal dresses is of no consequence to this court.

Counsel relied on the decision in Re Chicadee, where he contends that in similar circumstances the accused was aquitted. However, this is a horse of a different colour. A close reading of that case indicates that the animal in question there was not a small bird, but, in fact, a midget of a much larger species. Therefore, that case is inapplicable to our facts.

Counsel finally submits that the word “small” in the title Small Birds Act refers not to “Birds” but to “Act”, making it The Small Act relating to Birds. With respect, counsel did not do his homework very well, for the Large Birds Act, R.S.O. 1960, c. 725 is just as small. If pressed, I need only refer to the Small Loans Act, R.S.O. 1960, c. 727 which is twice as large as the Large Birds Act.

It remains then to state my reason for judgment which, simply, is as follows: Different things may take on the same meaning for different purposes. For the purpose of the Small Birds Act, all two-legged, feather-covered animals are birds. This, of course, does not imply that only two-legged animals qualify, for the legislative intent is to make two legs merely the minimum requirement. The statute therefore contemplated multi-legged animals with feathers as well. Counsel submits that having regard to the purpose of the statute only small animals “naturally covered” with feathers could have been contemplated. However, had this been the intention of the legislature, I am certain that the phrase “naturally covered” would have been expressly inserted just as “Long” was inserted in the Longshoreman’s Act.

Therefore, a horse with feathers on its back must be deemed for the purposes of this Act to be a bird, and a fortiori, a pony with feathers on its back is a small bird.

Counsel posed the following rhetorical question: If the pillow had been removed prior to the shooting, would the animal still be a bird? To this let me answer rhetorically: Is a bird any less of a bird without its feathers?

Appeal allowed.

Workspace Strategies

Friday, January 7th, 2011

Workspace, workload, docket, and time managements are key elements of professionalism for paralegals, forming the basis for a significant portion of The Empowered Paralegal: Effective, Efficient and Professional.” Early in this blog I did a post based on the book entitled “One File at a Time,” that included some advice on how to begin workspace management. It was and continues to be one of the most popular posts on this blog.

Shortly thereafter Vicki Voison, The Paralegal Mentor asked in her newsletter “Is ‘One File at a Time’ Realistic?” Vicki recognized that for a working paralegal One File at a Time is a, perhaps unreachable, ideal but advocates taking steps that will bring that ideal closer to reality. At the time she offered ten tips, all of which were excellent.

Now Vicki is going a step further by way of recognizing January is Get Organized Month. Instead of a guest on the Mastermind Call scheduled for next Tuesday, January 11th at 8pm Eastern time, she’ll be presenting her own Kick Start Strategies to Organize Your Work Space….and it’s f’ree. The tagline is “Spend 60 minutes with me and you’ll love spending time in your office!” Here’s more:

In this webinar you’ll learn how to organize your desk, as well as every drawer, filing cabinet, shelf, book case and closet in your office. Even how to organize your FLOOR…yes, I know all about your floor! In Kick Start Strategies to Organize Your Workspace, you’ll learn:

processes for deciding what to keep and what to toss/shred
how to tackle those piles of paper that take on a life of their own in your office
keys to prioritizing your work and planning your day
steps to creating an organized and peaceful workspace that will result in higher productivity

These strategies will transfer to anything in your life that needs organizing, both at home and at your office. Again, there is no charge for this webinar…be sure to join me on Tuesday… just follow this link for more information and to register.

This is bound to be an hour well spent and I hope you’ll join Vicki for this call.