Archive for December, 2012

The “C” Mantra

Sunday, December 30th, 2012

The NFPA National Paralegal Reporter for December/January, among several articles worthy of reading announces the winners of the Thomson Reuters Scholarship Winners (Melissa Jurik and Anne Caitlin Griffin) and the Chancellor University Scholarship Winner (Shelly L. Bender.) Their winning essays are included.

Melissa’s “Our Mantra – Learn As Much As You Can” was particularly interesting to me as it relates to my recent post on professional self-assessment in which I made the point, “The professional paralegal strives to move beyond just “doing the job” – average or satisfactory work. So as we do our year end assessments, we should each ask ourselves, ‘Am I doing “A” work?'” While I was speaking of already practicing paralegals, Melissa applies the principle to paralegal students and newly minted graduates. She points out, “In that diverse group of students, there are a myriad of personalities and work ethics. Some have the mantra of ‘C’s get degrees’ and are doing just enough to get by, while a larger group of us are on a mission to learn as much as we can to make sure we are prepared to enter into the workforce.” She then argues in favor of completion of a voluntary exam such as The Paralegal CORE Competency Exam as a way of showing employers that the “individual has met the standards that are objectively established and verified by a third party.”

Those of you who read my previous post are aware that I agree with Melissa on the need for students to be doing “A” work if they expect an “A” grade. That can best be accomplished by adopting Melissa’s mantra: Endeavor to learn as much as you can rather than work for a passing grade. That same attitude applies to getting and keeping a job. It certainly applies to any paralegal who sees themselves making a career as a professional paralegal.

NYCPA Annual Membership Appreciation Dinner

Saturday, December 29th, 2012

Just back from a lovely Christmas trip, but although my body is in the seat, my mind continues to be elsewhere, so I’m filling the time by wandering aimlessly through emails, blogs posts, Paralegal Reporter the like rather than put any real effort into creativity of my own. First up is a notice from the New York City Paralegal Association, perhaps the best local paralegal association in the country* (I’m willing to entertain contrary opinions on this), of its 2013 Membership Appreciation Dinner. The event features  “<span “two distinguished guest-speakers, William J. Mulkeen, JD and Professor Thomas Goldman,” who will speak on “”Paralegalism: Is this as good as it gets?”

I like in particular the notice’s statement of whom the dinner is for:

This event is all about you, our members who joined and renewed their membership in 2012 and about you, who are considering joining the NYCPA in 2013. We are looking forward to welcoming you as a member of our Association and want you to know that your input can make a difference! Join the NYCPA and invite your colleagues and others from your network.

During the Award Ceremony, we will recognize members who contributed the most into NYCPA, our sponsors and supporters. We are also looking forward to award a scholarship to a winner of our scholarship contest. Will it be you?

The dinner is

The Grand Salon
3 West Club
3 West 51
st Street
New York, New York 10019
6:00-9:00 PM
For more information and to register click here.

*In the interest of full disclosure I am on the NYCPA Advisory Board, although they seem to be doing quite well without any advice from me.

New AAfPE President

Thursday, December 20th, 2012 now carries an announcement of Loretta Calvert’s presidency of the American Association for Paralegal Education. This is no surprise to active members of AAfPE, especially those attending the AAfPE National Conference when Loretta became President-Elect a year ago when I was elected as Secretary. But for the rest of you here’s a bit about her and AAfPE from the announcement:

Loretta Calvert is the new president of the American Association for Paralegal Education (AAfPE).

The national organization promotes quality paralegal education, develops educational standards and encourages professional growth.

Calvert is coordinator of paralegal studies at Volunteer State Community College.

Calvert graduated from New York University School of Law in 1998.

She has been an AAfPE board member, a reviewer for the Educator magazine and an active member of AAfPE’s Alternative Delivery Task Force.

I first met Loretta at AAfPE’s Southeast Regional Conference several years ago and have been impressed with her ability, energy, and dedication to improving paralegal education at Volunteer State Community College in her capacity as an instructor and coordinator of the paralegal program and nation wide through her work with AAfPE. I look forward to working with her on the Board Directors this year.



Another Voice on Access to Justice

Wednesday, December 19th, 2012

Just a few weeks ago the dean and president of Vermont Law School spoke out on the increasing role of nonlawyers in serving the legal needs of our community. This is, of course, a opportunity for paralegals as I noted in my post regarding his comments. However, my focus in this regard has been on the role paralegals can play in resolving the access to justice problem in the United States (see the “Access to Justice” category.) In 2010 I commented, “On accepting his appointment as Senior Counselor for Access to Justice in the Department of Justice where he will lead a newly launched initiative aimed at improving access to civil and criminal legal services, Laurence Tribe stated, ‘Access to justice for all is at the core of our nation’s values.’ The DOJ initiative recognizes a need to ‘enhance the delivery of legal services to the poor and middle class, and identify and promote alternatives to court-intensive and lawyer-intensive solutions.’ One alternative to lawyer-intensive solutions is the effective utilization of paralegals.”

Now Gillian Hadfield, the Richard L. and Antoinette Kirtland professor of law and economics at the University of Southern California, is making a similar point. While I’ve based many of my comments on the model presently being tested in Ontario, Canada (see “Canada” category,) Professor Kirtland focuses on the differences between the present American system and the system in place in Great Britain in a story on CNN.  First. some of her statements on the present status of access to justice in the U.S.:

In our country, lawyers and judges regulate their own markets. The upshot is that getting legal help is enormously expensive and out of reach for the vast majority of Americans. Anyone faced with a contract dispute, family crisis, foreclosure or eviction must pay a lawyer with a JD degree to provide service one-on-one in the same way lawyers have done business for hundreds of years.

Increasingly, the only “persons” with access to legal help are “artificial persons” — corporations, organizations and governments. No wonder that in a 2010 New York study, it was shown 95% of people in housing court are unrepresented. The same is true in consumer credit and child support cases; 44% of people in foreclosures are representing themselves—against a well-represented bank, no small number of whom engaged in robo-signing and sued people based on faulty information.

These numbers are just the tip of the iceberg. For every person who is unrepresented in court there are probably tens of thousands who didn’t have any legal advice when they did the things that landed them in hot water in the first place. Who can afford $200 to $300 an hour to get advice on local small business regulations, the fine print in a mortgage document, or how not to make mistakes that will cost you in court when fighting over kids and money with your soon-to-be ex-spouse?

Professor Kirtland then reinforces my point:

That’s why the only way to increase access to justice is to expand the group of people and organizations that can provide legal help beyond JD-trained and licensed lawyers.

Authorized nonlawyers and organizations could help ease our overburdened courts in many ways. Each year, 2.3 million New Yorkers, for example, represent themselves in state courts. These litigants do not want to be in court or to manage their problems alone, but have no other practical choice. They frequently labor under huge misunderstandings about legal procedures, requirements and forms. Oodles of judges and lawyers have complained about the delays and complications these misunderstandings create.

Imagine how much more efficient the court would be if the unrepresented could obtain low-cost legal assistance from people expert enough to help them navigate the process. Especially if those people were using the systems and protocols developed by a large-scale company, maybe even online.

She then uses the Great Britain system to illustrate her point:

The use of non-JD legal assistants and nonlawyer dominated businesses is not a venture into uncharted waters. The United Kingdom has a long history of allowing a wide variety of differently trained individuals and organizations provide legal assistance, and studies show that the practice works very well. In many cases, people are better served by a nonlawyer organization that specializes in a particular type of legal help—navigating housing or bankruptcy matters, for example—than they are by a solo practitioner with a general practice.

Furthermore, when people have access to lower-cost alternatives to full-fledged attorneys, they use these resources. In practical terms, that means that only 5% to 10% ignore their legal issues in the United Kingdom. Compare that to New York, where significant majorities of low-income households with legal problems—65% with housing problems, 59% with financial issues, 50% with health insurance problems—do nothing in response to their problems. But as often is the case, untreated problems lead to worse problems—and bigger headaches for our courts.

The entire article is well worth the read. Her solution is to change the way we regulate the provision of legal services, a proposal that we as a country should seriously consider. Indeed, it is past time for mere consideration. It is time to begin acting on this type of proposal and legal professionals of all stripes should be at the forefront of that process.


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

Monday, December 17th, 2012

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

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

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

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

This provides a good basis for a checklist:

1.  client

a. eighteen (18) years of age or older

b. of sound and disposing mind (document file)

2. Subscribing witness

a. two or more

b. credibile (document file)

c. in presence of testator or testatrix

d. requested by testator to attest the will

e. see the testator sign the will

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

g. satisfy themselves that the testator is

i.  of sound and disposing mind and

ii. capable of making a will

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

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

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

Year End Professionalism Assessment II

Saturday, December 15th, 2012

Last year I keyed off a post by Judge Primeaux on his blog to write a serve as a post on Year End Professionalism Assessments. In yesterday’s post he encourages attorneys to use “the Christmas lull, that blessedly quiet period in the few days before and after Christmas.” This year I’m striking first spurred in part by an email exchange I had with a student regarding the student’s grades in general and a specific assignment in particular. As you are likely aware The Empowered Paralegal: Effective, Efficient, and Professional focuses on the many elements of professionalism that go beyond dress and manners and there is a whole category here on professionalism. Yet, professionalism continues to have an aspect of “Je ne sais quoi: (something that cannot be adequately described or expressed) other than by giving examples and long explanations. One such aspect is the desire to do the best possible job in the time available given the circumstances rather than just what is needed to complete a task.

Certainly the topic comes up when office year-end bonuses comes up. Paralegals wonder why they do not get a bonus when others do or get less of a bonus than others. After all, they think, “I’ve put in regular hours and done everything I’ve been asked to do.” They fail to understand that they receive their salary for putting in regular hours and doing everything they are asked to do. Bonuses are for… well, they’re for bonus work. Let’s take a look at the example derived from my email exchange with my student.

Here’s the assignment (slightly modified for this example):

Each of you should use your blogs at least four times a week to post regarding paralegal studies and the paralegal profession in general, or your paralegal studies activities in particular. For example, you could discuss your efforts to find an internship, apps and programs you are using, what works and what does not, or concerns about joining the workforce.  Only blogs with ten or more posts will be graded.

Grading will be based on both quantity and quality, i.e., not just the number of posts but on how much thought has gone into the post and how well it is presented, i.e., organization, writing, clarity, conciseness, etc.

Here was the student’s concern:

Dr. Mongue, about the seminar class, I do not know why i received a 75 on my blogs. I did 10 and all of them pertained to information about me and paralegals.

And here the response (again modified a bit for the example:

You did the absolute minimum amount of work you could do and did six posts in one day at the very end of the semester. This, by definition is – at best – “C” work:

“A” indicates outstanding achievement; “B,” superior; “C,” average or satisfactory; “D,” the lowest passing grade; and “F,” failure.”

The work  submitted, on the whole, is average, satisfactory – you just barely met the minimum requirements. It is hardly superior or outstanding. M (25), N (18),  O (18) and P  (19) quality posts did outstanding or superior work. A student cannot reasonably expect the same grade as those students who worked consistently, week after week, when the student rushes to cram in the minimum work in the last week.”

The professional paralegal strives to move beyond just “doing the job” – average or satisfactory work. So as we do our year end assessments, we should each ask ourselves, “Am I doing “A” work?” If you are, start documenting that fact and preparing for your year-end review.