Archive for January, 2013

Can Poor Writing Be a Crime?

Monday, January 28th, 2013

I doubt it, but a post today at ABAJournal.com entitled “Lawyer-lawamker blames poor writing for bill that would criminalize abortions by rape victims” suggests that poor writing can create a crime where (if the drafter of the law is to be believed) there was no intent to do so:

A New Mexico lawmaker says the critics misinterpreted her proposed bill that appeared to criminalize abortions by victims of rape and incest.

The bill said procuring abortions in cases of rape and incest could constitute tampering with evidence, a crime meriting a sentence of up to three years in prison, the Washington Post, ABC News and the Carlsbad Current-Argus report. The exact wording: “Tampering with evidence shall include procuring or facilitating an abortion, or compelling or coercing another to obtain an abortion, of a fetus that is the result of criminal sexual penetration or incest with the intent to destroy evidence of the crime.”

News of the bill led to creation of a Facebook page calling for resignation of the bill’s sponsor, New Mexico state Rep. Cathrynn Brown. But Brown says poor writing is to blame for the furor. Brown says she wanted to make it a crime for a rapist or perpetrator of incest to force the victim to have an abortion.

Brown, a lawyer, said the bill “was never intended to punish or criminalize rape victims,” according to the Post account. She told the Current-Argus that she didn’t catch the drafting error when she reviewed the bill. “I missed this one,” she said.

It is difficult to overstate how important writing correctly is for legal professionals. (Check out the “Consequences of Sloppiness” category.) Even the presence or absence of a comma can make a difference in the meaning of a sentence. Compare these two sentences:

A woman had people over for dinner, but served her children first while the others looked on hungrily. She said, “Eat, my children.”

A woman had people over for dinner, but served her children first while the others looked on hungrily. She said, “Eat my children.”

Yet this point seems to be getting increasing difficult for paralegal educators to make with students. Students often seem to get indignant that we require them to write correctly. Many seem not to have been required to do so in high school – even in English class!

Of course we all make mistakes and can all stand improvement. I subscribe to “Grammar Girl’s Quick and Dirty Tips for Better Writing” podcast. The “lessons” are short, well-done and easy to fit in while waiting for a class to start or waiting on line at the ATM. http://grammar.quickanddirtytips.com/

Top Qualities of a Great Paralegal

Tuesday, January 22nd, 2013

A recent post on the NYCPA LinkedIn discussion board linked to an article entitled “Top 10 Qualities of a Great Paralegal.” The article lists and explains these ten items:

1. Analytical Skills
2. Communication Skills
3. Detail Oriented
4. Ethical Judgment
5. Great Writer
6. Interest in the Law
7. Interpersonal Qualities
8. Organizational Qualities
9. Research Skills
10. Tech Savvy

I agree that all of these are attributes that every good paralegal has, but I’d likely not classify all of them as “qualities,” but as “skills” as some of them are listed. And it is likely that my “top ten” list would be different. Certainly I would add to the list. In terms of skills I would at least add the basic skills of time, workload, calendar, client, and attorney relationship management to the list – the basic set of skills that form the basis for The Empowered Paralegal: Effective, Efficient, and Professional. For example, even the best writer and the best researcher are of little value to a law office if she cannot get the work done on time. In terms of attributes I consider qualities, those such as integrity, reliability, and the other components of professionalism come higher up the list than some of those in this list. Again, a great writer and researcher is a problem rather than an asset to a firm if he is unreliable or lacks integrity. In the end a law firm can teach improved writing and researching skills if necessary to a reliable paralegal with integrity but can do little to improve the reliability of a person with little integrity.

Suicide Watch

Friday, January 18th, 2013

There is a time and place for suicide, at least according to the laws in three states – Oregon, Washington, and Montana. But most often it is a drastically permanent solution to temporary problems. As legal professionals we frequently provide services to people experiencing those problems. This can be particularly true when providing services to the elder client. It can also be particularly troublesome as it can be hard to see the distinction between the permanency of aging and the diminished capacity that goes with it and the impermanent nature of some of the psychological effects of that diminished capacity. So here’s today’s comment drawn from The Empowered Paralegal: Working with the Elder Client:”

Suicide

Suicide is not itself a psychological disorder. However, it can be the result of the psychological disorders affecting the elderly. Every text I consulted on the psychology of aging emphasizes the risk of suicide among elderly clients. Hooyman and Kiyak note studies estimating that 17 to 25 percent of all completed suicides occur in persons aged 65 and older with the highest rate among older white males. The legal professional should learn the risk factors for suicide in older adults and take all indications of suicidal ideation seriously. The risk factors include

• a serious physical illness with severe pain
• the sudden death of a loved one
• a major loss of independence or feelings of financial inadequacy
• statements that indicate frustration with life and a desire to end it
• a sudden decision to give away one’s most important possessions
• a general loss of interest in one’s social and physical environment.

All sources report that the axiom that someone who talks about suicide will not attempt suicide is a myth. Therefore, all indication of potential suicide on the part of our clients should be taken seriously. Establish a procedure to be followed in your office for when you are concerned about a client. That procedure must include voicing that concern to the attorney immediately and should also include voicing the concern to the client. In certain cases, it should also include asking the client if they have a plan and what they have done to advance the plan. Seek professional help immediately.

StopSuicide.org gives the following advice to people seeking to help prevent suicide among friends:
If the person seems unwilling to accept treatment, call 1.800.273.TALK (8255) or a local emergency room for resources and advice.
If the person seems willing to accept treatment, do one of the following…
* Bring him or her to a local emergency room or community mental health center. Your friend will be more likely to seek help if you accompany him or her.
* Contact his or her primary care physician or mental health provider.

Generally we are not, and should not attempt to be, our clients’ friend. However, it may be appropriate to act in accordance with this advice except that we must confront the issue of breaching attorney/client confidentiality under these circumstances is not clear, at least according to some writers, so again it is important to discuss this matter with your attorney and have a clear policy and procedures in place before the need arises. (This ethical issue, along with others particularly pertinent to elderly clients, is discussed more extensively elsewhere in the book.)

NY State Paralegal Day?

Thursday, January 10th, 2013

Several states now have special days recognizing the contributions of paralegals to the legal system and the public. I do not have a complete list (if your state has one please let me know,) but have posted about Pennsylvania’s and Washington’s Paralegal Week, and Paralegal Day proclamations in Ohio and Mississippi. New York state has had paralegal days in the past, but apparently it’s a year-to-year sort of thing. If you are from New York you can now assist the Empire State Alliance of Paralegal Associations in establishing a 2013 paralegal recognition day, according to this announcement in the NYCPA’s Paralegal Buzz newsletter:

Do you want to showcase the support of your law firm, business or employer in a significant way to the New York State Legal Community? Then consider supporting the Empire State Alliance of Paralegal Associations by joining us to obtain a proclamation for Paralegal Day for paralegals in New York State.

For more details on how to be listed as a supporter please visit www.empirestateparalegals.org and click on “News and Events” to see how your firm or business can be featured on the proclamation that will be signed by Governor Cuomo.

If you have any questions please contact Cynthia Bynum @ 347-974-2874 or via email esapaprimary@nyc-pa.org.

I do hope you will join Cynthia, NYCPA, and ESAPA in this effort. While proclamations such as these may seem trite to some, they are one step in building “self-esteem” for the profession and greater awareness among the public of the essential role paralegals play in our legal system.

Answers to Questions on Books

Thursday, January 10th, 2013

1. Yes, there is a Kindle edition of The Empowered Paralegal: Effective, Efficient, and Professional. Not for the other two yet though.

2. I didn’t let those of you who had requested to be kept posted about the Kindle version know because I didn’t know until a reader pointed it out to me. This sort of thing is handled by the publisher, Carolina Academic Press, with whom I have been pleased to have worked since 2009.

3. I am not currently planning a new edition of TEP: Effective, Efficient, and Professional. Most of the materials covered in the book do not require frequent updating, although I do have some thoughts on the integration of discussion of new technologies, social networks, and the like into the discussion. If you are concerned about getting the present edition only to have it superseded in a few months, don’t be. If you think there should be a new edition, please let me know what you would want changed, expanded upon, added, etc.

4. I’m am presently working on Instructor Materials for TEP: Working with the Elder Client and a new book, The Empowered Paralegal Cause of Action Handbook. The latter was indeed delayed due to some health issues, but I seem to be back on track now.

5. I don’t know why only one reader has done a review on Amazon.com. I’m told that such reviews can be helpful on the Amazon end of things, so I encourage any of you who might be thinking about it to write a review of any of the books. However, my real interest is in your comments that might be helpful for improving future editions, future books, and/or future posts to this blog.

6. I have not looked into mugs and the like bearing the TEP logo. Thanks for the suggestion.

My thanks to all those who have emailed me!

Washington State Licensing Board Moving Forward – with Paralegal Help

Wednesday, January 9th, 2013

We’ve previously noted the new Washington Admission to Practice Rule 28 which creates a new legal service provider category named Limited License Legal Technician. The NFPA LinkenIn Group discussion board recently posted the following announcement:

Brenda Cothary, President of the Washington State Paralegal Association, has been appointed by the Washington State Supreme Court to serve on the Limited License Legal Technician Board.

Washington recently passed a law where certain paralegals can provide services directly to the public. Brenda will be on the inaugural board which will establish the requirements and procedures for paralegals who wish to work in this capacity. Brenda is very excited to be appointed and NFPA is proud of the work that WSPA members put into this project.

I join in congratulating Brenda and extend that congratulations to all the WSPA members who worked on moving the profession forward. Not every paralegal will or can be appointed to boards of this nature, but each can contribute to their own professional growth and the growth of the profession by actively participating in professional associations, civic affairs, and pro bono projects.

New Year, Old Issues

Thursday, January 3rd, 2013

It’s always nice to start out the new year with new stuff, but, alas ( a very old word but it works here  – besides I also am old), the first item that has caught my attention this year is (1) left-over from a Paralegal Jobs & Continuing Education group LinkedIn Discussion Board, and (2) about an issue that seems to re-occur on a regular basis despite efforts from Marianna Fradman of the NYCPA, myself, and many others at clarification.

The discussion starts when a prospective paralegal student asks, “I am looking to go back to school to be a paralegal. Can anyone give me some inexpensive school names? … Also interested in schools that do payment plans. Thank you in advance.” The first response states, “Depending on where you live, it is best to check the American Bar Association, and the section that shows ABA Accredited, meaning that they approved that school and you will be hired once out of school. These days that’s important…” and another adds, “Accrediatation is everything. if if isn’t approved by the ABA its NOT worth the money.” These comments are incorrect on several levels.

First, the ABA does not provide accreditation of paralegal schools. Accreditation is provided by regional accreditation organizations. For example, the University of Mississippi and other SEC schools are accredited by the Commission on Colleges of the Southern Association of Colleges and Schools. The ABA approval is obtained by some paralegals on a voluntary basis. If a school claims to by accredited by ABA or that graduates are ABA certified, the school is, at best, misleading its students.

The ABA does not even provide certification. Here’s Marianna Fradman on that topic:

I’m on my soapbox today with a pet peeve. I noticed that some paralegals are putting “ABA Certified Paralegal” on their resumes, social media or announcing it to friends and employers. Here’s a suggestion: Stop now while you still can! Save yourself some embarrassment or even keep yourself from getting rejected from a job!

The ABA does not offer certification. Certification is a process of taking a very rigorous exam that is based upon work experience and knowledge. It is not your final exam in paralegal school. Generally, you need to meet certain educational and work experience requirements, submit an application for approval, pay a fee and take the exam in a secured environment.

For example, The Organization of Legal Professionals, OLP, offers a certification exam in eDiscovery.

Second, as I’ve stated here before, many ardent discussions occur on the internet as to whether ABA approval is beneficial to programs as a marketing device or to graduates as a tool for gaining employment. I suspect that the answer depends on more on geography than anything else.  This is not to say that there should not be some firm criteria for assessing a good paralegal program. Indeed, I argue in many posts here for the need for uniform educational standards.  However, it is not at all clear that the ABA should be the organization making these determinations, at least not in isolation. AAfPE does have representatives on ABA committees and does provide members for site review committees, but has little to no control over final decisions by ABA regarding its conception of the proper way to educate paralegals. Within AAfPE (American Association for Paralegal Education) there is some ongoing discussion about whether the ABA is the correct institution to be “approving” paralegal programs: does it make sense to have lawyers rather than educators determining what makes a good educational program, even if the topic being taught it law? (AAfPE has some good information on choosing a paralegal education program and a list of its members here.)

Third, the fact of the matter is that ABA can often be out of step with advances in education. For example, the Masters Degree program at George Washington University – one of our country’s most prestigious institutions (and I think at last count the most expensive to attend) cannot obtain ABA approval because it relies on online education. Yet, it would seem that if online education was in itself bad, GWU would know about it. Many other institutions meet all of the ABA requirements for approval but do not seek it because it is a tremendous drain on resources, both in terms of money and personnel. The costs of obtaining ABA approval are substantial and must be either passed on to students or deducted from other parts of the budget.

This is confusion is just one of the many problems arise from the current state of the paralegal profession’s development. As I previously noted here, and more extensively in The Empowered Paralegal: Effective, Efficient, and Professional, even attorneys can be confused leading to must frustration for both paralegals and attorneys on the legal team.

Those interested in paralegal professional identity, regulation, certification, and education should check out the fine articles included in The Empowered Paralegal Professionalism Anthology.