What should a paralegal do when an attorney deletes research given by paralegal prior to giving information to judge?

One visitor to this blog arrived through the Google search “what should a paralegal do when a attorney delete research given by paralegal prior to giving information to judge.” Several posts here have discussed ethical questions that arise for a paralegal when they discover that an attorney is engaged in unethical acts. However, it is unclear in this case that the attorney is engaged in any unethical conduct. While the attorney does have an obligation not to commit fraud or other dishonesty with regard to the court, it is not necessarily required that she provide the court with all of the information discovered during research of an issue. There are often strategic or tactical reasons for an attorney not to include research in a memorandum or brief filed with a court that do not violate any ethical obligation owed by the attorney to the court.

The main thing a paralegal should do in this circumstance is to make sure there is a record showing that he did his work, found the information and provided it to the attorney. The attorney is always the final arbiter of what is and is not included in documents filed with the court. They must sign those documents and in civil proceeding in federal court are subject  to sanctions under Federal Rule of Civil Procedure 11. Additional information would be necessary to assess whether in any particular case the paralegal should do more.

Often the paralegal is frustrated because, after hours of research and preparation, the attorney does not seem to be applying the resulting work to the project at hand. I discuss this in The Empowered Paralegal in the context of trial tactics:

One key to managing your relationship with your attorney is a mutual understanding of what each of you does as part of the legal team. Understanding your attorney’s use of trial tactics is also an essential tool to assisting in building a better trial with that attorney. Often the paralegal is frustrated because, after hours of research and preparation, the attorney does not seem to be applying the resulting work to the trial. However, trials are more than just the application of rules of procedure, rules of evidences, statutes and case law to a set of facts.

Just as important as knowing the rules and law is knowing how and when to employ them in the context of a particular trial. While knowledge of the rules of evidence will tell the attorney she can object to a question, she must use your preparation and her judgment to determine whether to object.  At each opportunity to object she must determine instantly

  • whether an objection is likely to succeed because an unsuccessful objection may create the wrong impression in the jury’s mind,
  • whether repeated objections, even if successful, will cause a jury to think her client has something to hide,
  • whether a successful objection will later prejudice her ability to use similar evidence favorable to her case,

and many other potential ramifications.

The trial attorney must make tactical use of all the weapons available. This can only be done if the case is thoroughly prepared; the facts, law and rules all known and the evidence all available. There are several excellent books devoted to effective trial tactics, a topic which cannot be covered comprehensively here. However, there are several general tactical considerations which will be helpful to you in understanding what your attorney is doing and how you can most effectively assist the attorney.

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