Archive for July, 2011

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.

New York Paralegal Licensure Bill Proposed

Monday, July 25th, 2011

A bill directing the NY Board of Regents to develop a paralegal licensure program has been sent to the New York legislature’s Committee of Higher Education. I’ve included the bill’s summary below. The full bill is available here.

BILL NUMBER:A8532

TITLE OF BILL:
An act
to amend the education law, in relation to requiring licensure for
the paralegal profession

PURPOSE OR GENERAL IDEA OF THE BILL:
Requiring licensure for the paralegal profession.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1: The education law is amended by adding a new article 167 to
read as follows; the board of regents upon the recommendation of the
commissioner shall establish a program to require the licensure of
paralegals practicing in this state. The program shall define the
scope of paralegal practice, establish license application fees and
license renewal fees and create an independent board to adopt rules
and regulations.

JUSTIFICATION:
Every year more and more attorneys are allowing their paralegals to
work extensively on important and complex cases: Cases that impact
the life of their clients and other people involved. Some of these
paralegals tend to commit errors that could lead to nightmares for
the clients. This legislation would require paralegal to have the
qualification necessary in order to provide improved and more
professional services to clients of attorneys.

H/T to Dr. Robert N. Diotalevi, Esq.,LL.M., Associate Professor, Florida Gulf Coast University on the AAfPE listserv

Professionalism Requires Precision in Writing

Friday, July 22nd, 2011

Three posts ago I focused on yet another case for the “Consequences of Sloppiness” category, a case in which yet another court admonishes a law firm for grammatical and other errors in documents submitted to the court. Certainly, an important function of a paralegal is to review all work (whether initiated by the paralegal or the attorney) for errors before it goes to a court, another attorney, a client, or any “outsider.” Frequently the attorney relies on the paralegal for that kind of attention to detail. (At one point there was a very helpful paralegal who would write to me pointing out errors my posts. While blog posts need not need the same degree of correctness as court briefs, I appreciated her oversight. Unfortunately, I have not heard from her for quite a while and I’m fairly certain it’s not because I have made no errors!)

However, there is more to good legal writing than good grammar. Legal writing requires precision and critical thinking that goes far beyond the normal standard. Today’s example comes from the blog of Judge Larry Primeaux in a post entitled, “A Costly Lesson in PSA Draftsmanship:”

What does this fairly commonplace paragraph from a PSA mean:

School and Extracurricular Expenses. Husband and Wife shall each be responsible for one-half (1/2) of all school and extra-curricular expenses incurred by the minor child including but not limited to the cost of books, activity fees, lab fees, school uniforms, tuition, and sports equipment.

Does that provision refer to private elementary and/or high school? Or does it refer to college? Is the language ambiguous?

In Mcleod v. McLeod, decided July 19, 2011, by the COA, those questions were presented squarely to the appellate court.

Judge Griffis wrote the opinion that held the language above to encompass all levels of education, and rejected both the arguments that the language was ambiguous and that private elementary and high school expenses are usually included in child support as the court had held in Southerland v. Southerland, 816 So.2d 1004 (Miss. 2002), and Moses v. Moses, 879 So.2d 1043 (Miss. App. 2004). The opinion distinguished the two cases from the facts in this case. The COA decision is worth a read, and I will not rehash it further here.

The point I want to make is how important it is to be aware of precision in your draftsmanship. It would have been a simple matter for the husband’s attorney to clarify the language to specify that it pertained to college, if that was, in fact, the agreement.

Some PSA’s lack clarity. The meaning is hidden behind a cloud of words. That was not the problem in this COA case, but it’s a common problem nonetheless. You can read some ideas for clearer draftsmanship here.

Mostly, though, it seems that we sometimes get in too much of a hurry. The client may be pressing or you put off tending to it until you had no more time to spare. Haste is the enemy of precision.

Make time to set aside what you have drafted for at least a few hours or a couple of days. Then pick it back up and look at it through fresh eyes. Put yourself in the role of a judge who is reviewing it. You know what you meant to say, but will that judge looking through different eyes see it the same way? Are there more precise words that could be used? Is what you have written susceptible to more than one interpretation? Is there something there that can come back and bite your client?

You want your PSA’s — and everything you draft, including pleadings, contracts, briefs — to say exactly what you mean to say and to promote the best interest of your client. Take your time on draftsmanship. Haste is the enemy of precision.

This type of precision is very difficult to teach and requires much practice to master. The language in any document that leaves a  law office is ultimately the attorney’s responsibility, but the professional paralegal will work hard to master legal writing skills and, as the judge says, apply them “to everything you draft, including pleadings, contracts, briefs.”

Paralegal Outsourcing – India is too far!

Wednesday, July 20th, 2011

Over a year ago I did a post entitled, Paralegal Outsourcing: Is India too far?” noting, “If an attorney in Boston can “supervise” a virtual paralegal located in San Francisco, could she not also do so with one located in India? Since licensing is not required in the United States, is the door open to this sort of outsourcing? Perhaps, it is happening already. If any of you know, I’d like to hear from you.”

The answer, it appears, is that it had been happening for several years, but many of the problems noted in the post do indeed arise and, as a result, at least one company is moving its outsourcing back home. According to Law.com, “About a decade after it helped pioneer the trend of outsourcing legal work to India, Schwegman Lundberg & Woessner, a patent prosecution boutique, is bringing the work back to U.S. soil.”

One of the primary, although not the initial, reasons for the outsourcing was cost savings, but some of those savings are phantom savings, especially when you factor in the cost of doing the kind of supervision discussed in the original post;

“There’s a very large volume of paralegal work required to support patent prosecution,” Lundberg said. “It was working well for us because we were getting substantially lower pricing.” Schwegman’s Indian outsourcing peaked at about 15 people doing document or paralegal work for the firm.

The arrangement worked well for several years, but the firm “finally figured out that our productivity in the U.S. was substantially higher,” Lundberg said. Meanwhile, costs in India had risen, and automation was more prevalent. “It started to look less and less attractive to be in India,” Lundberg said.

The firm originally saved about 50% in labor costs for the outsourced work, assuming that productivity was equal. But shipping work to India also involves many layers of management, supervision and training expenses, plus work culture differences that can affect cost, Lundberg said.

“A U.S. employee would feel a lot more freedom to take action in gray areas than an Indian employee,” Lundberg said. “They would ask permission for things a U.S. employee would do without blinking an eye.”

The extremely hierarchical nature of work in India is also a factor, he said. If a copier runs out of paper, for example, a paralegal in India would go and find an administrative person to load the paper instead of just doing it, Lundberg said.”You get a lot of that type of thing going on that ends up slowing things down if there’s any question about how things are going to work.”

The ability to take initiative, to exercise judgment, and work  independently, I have argued here and in The Empowered Paralegal: Effective, Efficient, and Professional is an essential element of professionalism.  This demonstrates that this kind of professionalism is an essential element of keeping United States paralegal work in the United States.

Paralegal Glory

Tuesday, July 19th, 2011

As previous posts here have indicated it seems that the military is often far ahead of civilian legal services in recognizing the value of paralegals and the need to view the attorney/paralegal relationship as a team. For example, The Las Cruces Sun-News is carrying a story from the White Sands Missile Range announcing an award received by the Range’s JAG office:

The Legal Assistance Office at White Sands Missile Range was recently awarded the Chief of Staff Award for Excellence by the Army’s Office of the Judge Advocate General for their excellence in legal assistance in the category of a medium office…

While any award to a legal services office must be a team effort, Lt. Col. James Dorn, Staff Judge Advocate clearly recognizes the role of the paralegals:

“All the glory belongs to George Clark and our paralegals because it really is a team effort,” said Dorn

“They were basically going that extra mile as far as service goes. We received the award for excellence, so that pretty much says it all.”

Here’s some more on how they managed to provide increased service with the same manpower:

Legal assistant Willie Smith said in order to accommodate the increase in appointments, the office increased the times they would accept appointments by four hours. Although he is honored by the award, Smith said his greatest reward is helping soldiers on a daily basis.

“I’ve been around for 11 years helping soldiers when they have problems, and helping them to solve the problems is my reward,” Smith said.

Clark said the feat of increasing the workload without adding an additional employee could not have been done without the flexibility of everyone in the office and the ability to take on different roles. According to Clark, the office consists of one attorney, one paralegal and two legal assistants.

How often does a law firm attempt the same thing only to find that the staff is not fully on-board? How many of those instances are the result of not recognizing the importance of paralegals both on a daily basis and particularly after the previous times they were called upon to “kick it up a notch?”

“[A]nyone can make such an occasional mistake, but…”

Monday, July 18th, 2011

As you may already know the 5th Circuit Court of Appeals has rejected a suit by a Texas cheerleader who did not make the varsity squad, stating ““Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.” While several sources have focused on the case it self, ABA Journal.com also notes that the court’s opinion comments harshly in a footnote on the grammar and spelling in the brief filed by the cheerleader’s law firm:

“Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word ‘principals’ should have been “principles.’ The word ‘vacatur’ is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (‘incompetence’) and a plural verb (‘are’).”

In particular, Smith criticized this sentence in the plaintiff’s opening brief: “Because a magistrate is not an Article III judge, his incompetence in applying general principals [sic] of law are [sic] extraordinary.”

These are the type of errors I see daily in student papers and all too often in documents prepared for submission to a court. As noted previously, writing right is important and there are consequences to sloppiness. (See the category of that name on this blog.)

There are, of course, also issues here regarding the decision of the lawyer to take this case not only to trial, but to appeal. While those decisions are ultimately the attorney’s, good lawyers will use paralegals as sounding boards during the decision process. Paralegals should speak up when given the opportunity (and often even when they are not), to provide some perspective in cases such as this. After all, it is likely the paralegal who will be expected to handle the client!

Increase in UPL Complaints in Ottawa after Paralegal Regulation

Friday, July 1st, 2011

It should, perhaps, come as no surprise that when a jurisdiction requires a license to perform a service there will initially be an increase in complaints of that service being performed without the required license. We’ve followed the regulation experiment in a Canadian province fairly closely to see how paralegal regulation might work here, recognizing that the role of a paralegal in Canada was different from that in the United States prior to the inception of regulation. Here’s a report on the increased UPL complaints from thestar.com:

The Law Society of Upper Canada is taking aim against people practising law without a proper licence after a jump in the number of complaints.

New complaints rose from 134 in 2007 to 445 in 2009, but dropped to 330 in 2010 and have further decreased this year, according to a report by Zeynep Onen, the society’s director of professional regulation.

In 2006, the law society reduced the number of legal services paralegals were allowed to do without a licence in an effort to tighten professional regulation.

“The increase in the complaints reflects that legal services are now regulated and those individuals who seek to avoid being regulated or who can’t meet the qualifications are now more easily exposed as breaking the law,” said Roy Thomas, the law society’s director of communications.

For more on this, click on thestar.com link above.