Posts Tagged ‘checklists’

Trial by Checklist

Thursday, February 6th, 2014

I’m a big fan of checklists as you can see here, here, here, in other posts, and in all of my books (especially The Empowered Paralegal: Effective, Efficient, and Professional.) Fortunately for all of us checklist lovers, Judge Larry Primeaux is not only a fan of checklists, but he creates them and shares them with us. Today in his blog, The Chancery Court Better Practice Blog, he has collected all of his checklist posts and provided the links to them in one place, “Reprise: The Checklist Thing.”  Judge Primeaux presides in the 12 Chancery Court of Mississippi, but the checklist can easily be adjusted to just about any court so that they work for the jurisdiction in which you practice. Here’s his explanation of how they play a role in ensuring successful litigation:

Proving your case by proving certain factors is a fact of legal life in Mississippi.  I’ve referred to it as trial by checklist.  If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.

This fact of legal life is true in every jurisdiction, not just Mississippi, and provides the basis for the soon to be released The Empowered Paralegal Cause of Action Handbook, a work that explains the role of elements (those “certain factors” to which the Judge refers) in litigation from investigation through  closing arguments.

I hope one day to persuade Judge Primeaux to turn his invaluable posts into a book. In the meantime here are the checklists he has available:

ere is an updated list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

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.

File Checklists and Blog Lists

Friday, March 29th, 2013

No, I haven’t forgotten I have a blog! I am on a deadline to get The Empowered Paralegal Cause of Action Handbook to the publisher, so I’ve had to move posting down in my priority list. Fortunately there are still several paralegal blogs of interest out there in the blogosphere. As Barbara Liss  points out on the NPFA LinkedIn discussion board, “The ABA Maintains a Paralegal Blogs List! The ABA’s website has a great resource directory for paralegal blogs! Check it out: http://www.abajournal.com/blawgs/topic/paralegals/” and “Paralegals – ABA Journal abajournal.com The ABA Journal is read by half of the nation’s 1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue.”

This blog is not on any ABA blog lists of which I am aware. I like to think it is because I am an attorney writing for and about the paralegal profession not a paralegal, so it does not qualify for the paralegal blog list or the attorney blog list. I suppose it just be though that they don’t like the blog.

In another NFPA LinkedIn discussion, Jaylin asks, “Hi! I work in a small law firm with three attorneys, and I am the only paralegal. I want to create a checklist to keep track of the routine process that each file goes through. It is meant to be a reminder to me and the attorneys of what still needs to be done with that specific client. The checklist should include items such as retainer amount, received Attorney-Client Agreement, checked deadlines of Statutes of Limitation, tasks requested by the client, etc. Do any of you have such a checklist that you like that you can forward to me? I appreciate any ideas that you have. Thank you!” Marianna Fradman of the NYCPA responds with a reference to a piece by Oliver Gierke, a contributor to The Empowered Paralegal Professionalism Anthology, “I would recommend an article posted on IPE website by Oliver Gierke. Although written with a complex litigation case in mind, it spells the basic rules that can be applied to any case. I hope that you will find it helpful. Here is the link http://www.nbi-sems.com/Enbi/Email/cToolsOfTheTradeFebruary2013.htm?goback=%2Egde_1124767_member_210285841. I’m a big fan of checklists and organizational aides. A paralegal professional is well-organized and, like Jaylin, takes the initiative to assist in making the entire law office more effective and efficient.

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.

Professional Preparedness

Tuesday, January 18th, 2011

In a recent post I ran a humorous and fictional example of legal reasoning taken from Judge Larry Primeaux’s blog noting, “I recommend that every paralegal and lawyer put the Mississippi 12th Chancery District’s Judge’s blog on their RSS feed because of his great checklist and commentary on topics from probating lost wills to final decision making authority in joint custody situations (both of which appear in the last week.) While the focus is on Mississippi law, the concepts are applicable everywhere.” Today I’ll give an example. The judge today posts, “CORROBORATION PROBLEMS = DIVORCE PROBLEMS

While the corroboration problems of which he speaks relate to the need for a particular type of proof needed in divorce actions in Mississippi, he ends by noting, “The easiest thing in the world is to tell your client, “Be sure to bring a witness to court who can back up your testimony about how he mistreated you.” That’s a ticket to failure, though. You need to investigate and identify who are the witnesses and what is the competent evidence that will make your client’s claim. It is no less important than discovering the value of that securities account or uncovering that hidden bank account.” For me this illustrates two major problems that frequently lead to poor performance by the legal team and go well beyond application of particular laws of any state.

First, professionalism requires that every member of the legal team be prepared. For any matter that must be brought to court that preparation must be centered around the requirements of the statute or case law that establishes the cause of action or defense. I am presently working on The Empowered Paralegal Cause of Action Handbook, which focuses on the need to analyze a cause of action or defense into its basic elements and use those elements as the framework for preparing an investigation, a complaint, a defense, discovery, both direct and cross-examination – the entire process of obtaining a favorable result for a client. This form of preparation is introduced in The Empowered Paralegal: Effective, Efficient and Professional especially in the chapter on organizing a trial notebook and evidence tree around the pertinent elements. One point being made by the judge is that some legal teams are unsuccessful simply because they do not fully analyze and understand what is required of a particular cause of action or statute. (Hence his frequent and well-done litigation checklists.)

Second, simply telling a client to bring a witness for any purpose, is likely to lead to disaster. It assumes that a client understands the issues at stake, the nature of a witness testifying, etc. Assuming such understanding is often disastrous for the legal team. Assuring such understanding is, to a great degree, the role of the paralegal. Especially, when the attorney expects the client to perform functions that pertain to the success of the legal team, the client must actually be made part of that team. Paralegals are uniquely suited to obtaining the requisite cooperation from a client.

Professionals Think About How to Do What They Are Doing

Wednesday, September 2nd, 2009

Professionalism is knowing “how to do” as well as knowing “what to do.” Often, to the frustration of attorneys and paralegals alike, work assignments are incompletely or incorrectly done not because the paralegal lacked the ability or the motivation, but because they did not understand the assignment. In this regard, communication between the paralegal and attorney is essential. More on that in a later post.

Before an assignment is begun, before you can even determine what clarification you need from the attorney, you must organize and plan. The first step in that provess is to analyze the assignment – break it down into its elements in a way similar to breaking down a statute or cause of action into its elements.  If we want to analyze whether our client is guilty of “Assault While Hunting,” we establish the elements and make a checklist for comparison to the facts of our case: (1) while hunting, (2) while in pursuit of wild game or game birds, (3) with criminal negligence, (4) with a dangerous weapon, (4) causes, (5) bodily injury, (6) to another. If any one of these is missing, the crime is not completed, e.g., if while hunting in pursuit of wild game or game birds with criminal negligence I cause my partner bodily injury by letting a tree branch swing back into his face, I have not committed the crime because element (4) is not present.

The same analysis can help understanding and completing an assignment. Let me give you an example from one of my classes:

ANALYZING AN ASSIGNMENT

The first step in completing any assignment, exam question or discussion forum is to break it down into its elements, i.e., analyze it. Let’s take a look at the Unit One Discussion forum as an example:

Either post an original answer or a substantive response to someone else’s original answer to the following question. State how critical and analytical thinking apply to discerning an answer to the question. Simple responses such as “I agree” are not acceptable. Check back regularly and participate in the discussion.

Please keep in mind that while this is an informal setting, your answers are being reviewed by all students and assessed by the instructor. Follow the writing rules. Use complete sentences and paragraphs. Make your postings concise and well organized. Spelling, grammar and punctuation count!

This can be broken down into the following tasks:
• Either post an original answer or a substantive response
• State how critical and analytical thinking apply to discerning the answer to the question
• Check back regularly and participate in the discussion
• Follow the writing rules

o Use complete sentences and paragraphs
o Be concise and well organized
o Use correct spelling, grammar and punctuation.

Take moment now to go back and review your response to the discussion forum assignment using this list of the assignment elements as a checklist. Did you complete the assignment? Did you not only make a post but state how critical and analytical thinking apply to discerning the answer to the question? Did you check back regularly and participate in the discussion?

This same process can and should be used when a paralegal receives an assignment from their attorney. For example, assume you receive this assignment in an email from your attorney:

Our client is concerned about his son, Paul. Paul is 26 but has never held a job, tends to drink to excess, gamble and (our client thinks) use illegal drugs. Our client wants to be sure that Paul’s basic living expenses are covered if our client dies but does not want to simply give the money to Paul who will surely just spend it all on gambling, drugs or just have it taken away from him. He has heard of something called a “spendthrift trust” and would like to know if it is a good thing for him to do. We need to know whether “spendthrift trusts” are enfoced in Mississippi. If there are we need to explain to our client some general background on what they are and how they work. Check whether there are any statutes which may relate to them. If there are any limits on their enforceability in Mississippi courts and what those limits are.

This can be broken down into individual tasks:

A.) Research

  1. whether there is such a thing as “spendthrift trust,”
  2. some general background on what they are and how they work,
  3. whether they exist in Mississippi,
  4. whether there are any statutes which may relate to them, and
  5. whether there are any limits on their enforceability in Mississippi courts and what those limits are.
  6. B. Report results to attorney

    Questions for attorney:
    In what format do you want the report to you – memo, draft letter to the client?
    How much time do you want allocated to this project?
    What is the deadline for completion?
    If I start by determining whether such trusts are not enforcable in Mississippi, do you still want the others issue researched?

Organization and planning are foundational elements of The Empowered Paralegal. They are so important as tools for the professional paralegal that Vicki Voison, The Paralegal Mentor,

applies them to home meal planning in her post today, The Paralegal’s Guide to Easy Meal Planning & Preparation :

First, there are two time organization issues involved with meal preparation

Planning: When you walk in the door from a long day of entering billable hours you have to know what you’ll be fixing for dinner. If you don’t, you will definitely resort to fast food, take-out or cereal. To know what you’ll be fixing, you must have a plan.

Breaking the work into manageable chunks: The task of fixing dinner seems overwhelming: too many steps and too much to do. If you look at cooking as one giant step, it’s bound to seem overwhelming. If you break it down into smaller pieces, it becomes manageable.

Read the rest of her post for the similarities between how the process is applied to classroom assignment, work assignments and home meal planning.