Archive for October, 2013

Is the Paralegal Profession Going Backwards?

Wednesday, October 30th, 2013

In a recent post I spoke about a LinkedIn discussion on paralegal regulation. The discussion there took an interesting turn when Bonnie Taylor posted, “We have been fighting this battle on a national level since the early 1980’s and it is sad to see that it is still being fought across the country with little resolution or progress. I have been a Paralegal for 35 years and this is the first time that I have felt that the profession is going backwards instead of forward.” I’d like your impression on this question – is the profession going backwards or progressing. Here’s my take on it as I posted in that discussion board:

I disagree with the perception that the profession is moving backwards. Keep in mind that attorneys are regulated on a state-by-state basis, not a national basis, so it is extremely unlikely that paralegal are going to achieve some sort of nationwide status not even held by attorneys. How ever there has been progress in many states. As I noted above the State of Washington created a new practitioner called a Limited License Legal Technician which will allow some paralegals to engage in a limited practice of law without attorney supervision. Several other states, including California, New York, and Oregon, are considering similar programs. As I recently noted on my blog (www.theempowereparalegal.com), an ABA Task Force has endorsed LLLT programs, stating

“Broader Delivery of Law: – Related Services:
The delivery of law-related services today is primarily by lawyers. These services may not be cost-effective for many who are in need of them, and some communities and constituencies lack accessible legal services. State supreme courts, state
bar associations, and admitting authorities should devise new or improved frameworks for licensing providers of legal services. This should include licensing persons other than holders of a J.D. to deliver limited legal services, and authorizing bar admission
for people whose preparation may be other than the traditional four years of college plus three years of classroom based law school education. The current lack of access to legal advice of any kind that exists across the country requires such innovative steps.

In addition, several states have adopted or are considering adopting, registered paralegal programs such as Florida’s. All this indicates that the profession is progressing rather than regressing as a profession, moving closer to a professional identity similar to that held by nurse practitioners. Much of this progress can be attributed to hard work on the part of national organizations such as NFPA, NALA, and NALS, and their local affiliates. Those interested in the development of professional identity for the paralegal profession may be interested in the articles addressing this issue in “The Empowered Paralegal Professionalism Anthology.”

How does a paralegal decide if there is a civil case?

Thursday, October 24th, 2013

Browsing through the background data for this site I noted that someone came to the site two days ago using the query “How does a paralegal decide if there is a civil case?” as a search phrase. In light of the need for attorney supervision discussed here recently the technical answer for U.S. paralegals is that they don’t decide. However, if the intent of the question was “How does a paralegal assist an attorney in deciding if there is a civil case,” the answer is the topic of the about to be published The Empowered Paralegal Cause of Action Handbook ,” so the query is of particular interest to me and pretty well timed.

The long answer is, of course, too long to post here, since it is book length, i.e., the length of The Empowered Paralegal Cause of Action Handbook. A short answer of sorts is contained in this excerpt from the book:

Causes of Actions and their Elements

This requires a rudimentary understanding of legal underpinnings of the case itself: “causes of action” and “elements.” Each case involves one or more “causes of action.” For example, a case involving the sale of a defective product may have causes of action for breach of contract, breach of express warranty and breach of implied warranty. A case for defective construction of a home may have a cause of action for breach of contract, breach of statutory requirements, negligence and legal doctrines such as unjust enrichment.
Each of these causes of action has its own “elements,” that is, things that must be proved. The elements of a cause of action differ from the definition or description of that cause of action. For example, one might define the cause of action of negligence as, “the failure to exercise a reasonable amount of care in a situation that can cause harm to someone or something,” but this is not sufficiently helpful in determining exactly what must be proven in order to establish the cause of action. For that we look to the cause of action’s elements. An action for negligence is generally considered to require establishing four elements:

(a) The defendant owed a duty to the plaintiff,
(b) The defendant breached that duty,
(c) The plaintiff was harmed, and
(d) There is a causal relationship between the defendant’s breach and the plaintiff’s harm.

The plaintiff will win her case if she established each of these elements to the satisfaction of the factfinder. Doing so requires that the legal team understand facts, evidence, and proof.

Facts

Facts of a case are the bits and pieces that comprise what happened – the event which brought the parties to court; the particularities of the automobile accident, the assault, the boundary dispute, the contract dispute and so on. For example, it may be a fact of an automobile accident case that the defendant went through an intersection when the traffic light in his direction was red. However, this “fact” may be contested by the parties. One party will say the light was red and the other party will say it was green. Which version of the event is believed by the factfinder will depend on what evidence is presented and how it is presented.

Evidence

Evidence is something that tends to show, confirm or verify a fact. It can be testimony such as the driver testifying he looked at the light before he entered the intersection. Not all evidence is equally convincing. Testimony from an uninvolved third party such as a school crossing guard that the light was red or green may be more convincing than the testimony of the driver of either car involved in the accident. A picture taken by a camera set up to track drivers’ speed may be even more convincing.
From the lawyer’s perspective, evidence is more important than actual facts. Cases must be evaluated and presented based on the evidence available for presentation rather than on the facts the attorney believes are true. We are more concerned about what can be proven than what occurred. We can assure our clients that we believe the doctor told them they would never be the same, but must make them understand that what matters is what the doctor says in his reports and on the witness stand. If the doctor’s report state, “Patient is fully recovered,” the fact the doctor said something else to the client at some point is likely to be outweighed by the evidence in the form of the doctor’s report.

Proof

Proof is simply whatever evidence is sufficient to convince a jury to accept a fact as true. Thus, a driver’s testimony that the light was green when she went through the intersection is proof if it is credible enough for the jury to accept it as a true statement of the facts and is not proof if the jury does not accept it. Evidence becomes proof when it convinces a jury. Regardless of the intrinsic value of the evidence, it is not convincing unless the jury hears or sees it, understands it and is persuaded by it.

Thus, the goal of the plaintiff’s legal team is to locate and present to the factfinder admissible evidence of each fact necessary to establish each element of the cause of action sufficient to convince the factfinder that the fact is more likely than not to exist, i.e., the preponderance of the evidence. The goal of the defendant’s legal team is to locate and present to the factfinder admissible evidence regarding each alleged fact sufficient to establish that one or more causes of action has not been established by the plaintiff. This is illustrated in the following diagram, which I refer to as an “evidence tree.” Both of these goals begin with a thorough understanding of the elements of the cause of action. An analysis of the facts as well as the evidence available to confirm each of the facts of the
underlying event, when taken together, establish each of those elements.

In this sense, the legal team is not, as trials are popularly characterized, necessarily searching for “the truth.” Rather it is searching for the best evidence and the best way to present evidence in order to convince a jury that the evidence is sufficient to constitute proof of facts which establish the elements of the causes(s) of action or defense at issue in the legal action. Since the search for evidence begins when the case starts, this process must start when the case starts: during, or even before, the initial client interview.

So the legal team determines which possible causes of action might apply to a given set of facts. They then analyze the facts in terms of the elements to determine whether there are facts that support each element. If there are, then there is at least a theoretical civil case. Whether there is a case in a practical sense, i.e., whether the legal team will decide to proceed with the case, will depend on the further analysis of whether there is evidence available or that can be obtained sufficient to constitute proof of those facts.

Supervision Abdication

Thursday, October 24th, 2013

As discussed in several posts here attorneys owe a duty to both the public and the paralegal to provide adequate supervision, a duty that may extend to supervising paralegal sexual relations under certain circumstances. Supervision can range from micro-management to total abdication of responsibility. While in some instances questions can arise as to whether an attorney has provided sufficient supervision especially in cases of embezzlement by paralegals and other situations, cases of total abdication are easier to spot but all the more difficult to understand seeing that they can lead to disbarment. Today’s example comes from ABA.Journal.com which reports that”A San Diego lawyer has agreed to be disbarred for allowing a nonlawyer to open and operate a law firm in his name that offered credit-repair services. Ernest George Georggin, 68, agreed to give up his law license and to pay $90,000 in restitution, plus interest, to 25 former clients of the law firm who filed complaints, according to a California State Bar press release, U-T San Diego and the Metropolitan News-Enterprise. According to a stipulation of facts (PDF), Georggin formed Georggin Law with nonlawyer Eric Phillips in 2010 and “completely abdicated” the firm to Phillips and other nonlawyers. Georggin collected a salary, but Phillips managed the firm.”

In this case there sounds like there was something particularly nefarious going on. But the point remains that if your attorney truly leaves you in charge of the office for an extended period of time or even for a short period of time if during that time you to ” decide[d] which new clients to accept, set legal fees and use[d] a stamp with Georggin’s signature to conduct legal business” it jeopardizes the attorney’s license, your job, and may actually subject you to charges of UPL.

Looking for something to read this weekend? Review a book.

Wednesday, October 23rd, 2013

I’m in the final editing and indexing phase of The Empowered Paralegal Cause of Action Handbook. It would be helpful to have some practicing paralegals review the book before publication. If you are interested, let me know and I’ll send it in .pdf format to the first few who respond.

Paralegal Regulation in the United States

Wednesday, October 23rd, 2013

A recent post on the Paralegal Jobs and Continuing Education LinkedIn discussion board calls our attention to a Paralegal Today article entitled “Paralegal Regulation in the United States.” It is a good compilation, but needs to be updated as it was first published in 2006. Gregory Lynn Crossett provides a good overview based on states that regulate paralegals by state statute, states that regulate through their supreme court, and states that regulate through state bar associations in The Empowered Paralegal Professionalism Anthology published by Carolina Academic Press in 2011. Even that article is now somewhat outdated given the speed with which this area is developing. For example, in the last few months the State of Washington created a new practitioner called a Limited License Legal Technician which will allow some paralegals to engage in a limited practice of law without attorney supervision.

How to Schedule a Deposition – Checklists

Friday, October 18th, 2013

As I’ve noted before, I’m a big fan of checklists and organizational aides. A paralegal professional is well-organized. Checklists can be invaluable assistance in file management, workload management, and docket management – all essential skills for the professional paralegal. I’m especially fond of those posted by Judge Primeaux on the Better Chancery Practice Blog. But today’s helpful aid comes through NFPA LinkedIn Discussion Board from Dawn Houghton. Dawn owns the Michigan reporting service “O’Brien and Bails” which provides a short booklet on how to schedule a deposition together with both a “quick checklist” and a more extensive (and more useful) deposition scheduling worksheet. I haven’t obtain permission to republish any of them here so, I’m just including the link to them.

One word of caution and a disclaimer on this: In order to get to the downloads you have to “sign up,” give your name and email address. This is a common marketing device used to gain a mailing list of potential customers. In most instances when I have signed up in order to see what resources are available, there has been no problem, but sometimes the service provider abuses the email address either by cluttering up my Inbox with way-too-frequent emails or by selling the email address. So the disclaimer is that, while I have every reason to believe that my email address will not be abused by O’Brien and Bails, I only signed up today so I don’t know that for a fact. That disclaimer itself should act as a caution to my readers. My word of caution to providers who abuse emails obtained in this way: My bet is that you lose more customers and goodwill through the abuse than you gain.

You May Not Be Lawyers, But You Are Professionals

Friday, October 11th, 2013

I don’t normally so blatantly based the title of my post on the title of another person’s article, but this time it seems appropriate.  Mianne on the NFPA LinkedIn discussion board posted a link to an article on law.com from the Legal Technology News page on law. com entitled, “We May Not Be Lawyers, But We Are Professionals” by Jeffrey Brandt.

I’m going to sign-on to most of what Jeffry says and suggest you read the entire post. Here are two parts that I found particularly well stated,

But last time I looked, in addition to the lawyers, law firms required technologists, Help Desk staff, library specialists and researchers, litigation support teams, marketing personnel, financial experts, paralegals, secretaries, human resource staff, and other administrative experts in order to run. Merriam-Webster defines “nonprofessional as “being such only for recreation” or “lacking or showing a lack of expert skill.” It offers up synonyms of amateur and unskilled. It goes on to define professional as “relating to a job that requires special education, training, or skill.”

and

So here’s a cheer for all the dedicated professionals that work with lawyers day in and day out to ensure their needs are met and that their clients have the best experience possible. We may not be lawyers, but we are professionals.

Of course since paralegals are professionals, the must act as professionals, which is the point of this blog and The Empowered Paralegal series of books.

PKI’s New Paralegal Trial Specialist Certificate Program Covers The Entire Pre-Trial and Trial Cycle

Tuesday, October 8th, 2013

A post on PRWeb.com announces a new certificate program through the Paralegal Knowledge Institute:

Through the Paralegal Trial Specialist Certificate Program, Paralegal Knowledge Institute (PKI) offers paralegals the unique opportunity to advance their careers by obtaining a certificate in trial specialization. The online, interactive 10-week program with live instructors is scheduled to begin October 17, 2013 and end December 19, 2013.

For more information click here.

 

Full disclosure: I have been a member of the faculty for other PKI webinars.

Monday, October 7th, 2013

While paralegals and lawyers in the Ontario, Canada, Law Society sometimes clash and some misgivings about the involvement of the Law Society in the regulation of paralegals, a recent assessment by the Ontario Attorney General concludes that overall the new system is working well. Now the Attorney General has introduced a bill to increase the number of paralegals on the governing body. MarketWired.com reports:

Today, [October 1, 2013] Attorney General John Gerretsen introduced amendments to the Law Society Act that, if passed, will enhance access to justice and the effectiveness of Law Society governance by increasing the number of elected paralegal directors on the Law Society board.

“We are grateful to the Attorney General for his commitment to furthering the development of the paralegal profession,” says Law Society Treasurer Thomas Conway. “This is important for both the protection of the public and access to justice.”

Currently, five paralegals are elected by licensed paralegals, as members of the Paralegal Standing Committee. Two of the five are elected as benchers (directors), who fully participate in and vote at Convocation, the meeting of the Law Society’s board. The amendments to the Law Society Act will see all five paralegals elected as benchers.

The article also notes that The Law Society  regulates over 5,000 paralegals practicing principally in Small Claims Court, traffic and other provincial offenses, landlord-tenant and various other tribunals, and minor matters under the Criminal Code.

ABA Task Force Calls for LLLTs

Friday, October 4th, 2013

Although the ABAJournal.com article center’s on one attorney’s concerns that LLLTs would mean “solos take a hit,” the article is the first I’ve seen even mentioning the ABA Task Force on the Future of Legal Education’s draft report (PDF) call on courts, state bars and bar-admitting authorities to come up with frameworks for licensing of limited legal service providers. Here’s the Task Force’s “Key Conclusion”  on LLLTs:

Broader Delivery of Law
Related Services:
The delivery of law-related services today is primarily by lawyers. These services may not be cost-effective for many who are in need of them, and some communities and constituencies lack accessible legal services. State supreme courts, state
bar associations, and admitting authorities should devise  new or improved frameworks for licensing providers of legal services. This should include licensing persons other than holders of a J.D. to deliver limited legal services, and authorizing bar admission
for people whose preparation may be other than the traditional four years of college plus three years of classroom based law school education. The current lack of access to legal advice of any kind that exists across the country requires such innovative steps.
Of course, it’s still a draft report subject to revision and just a task force report subject to rejection by the full ABA. But it is a first step.