Posts Tagged ‘evidence’

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.

Impressing the Judge

Thursday, May 17th, 2012

Chancery Court Judge Larry Primeaux has a top ten list of tips for attorneys wanting to  impress a judge while in court. The paralegal can play an important role in most of them. Let’s take today’s post as an example:

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #8

Know the law and have it handy.

Know the law that applies in your case. It’s never a bad idea to check on what the appellate courts have said most recently about whatever it is you are getting ready for trial. Even if you are an experienced, battle-scarred litigator, you can get blindsided by a rank, newly-minted lawyer if you don’t keep up. Complacency is stupidity in the guise of arrogance; it is intentional ignorance that often proves embarrasing, or worse.

Read the COA decisions every Tuesday afternoon and Supreme Court decisions every Thursday afternoon. When you run across something pertinent to a pending case, print out the decision, highlight the language you need, and stick the decision in your file. That way you’ll have it handy when you need it at trial. If you are too lazy to make time to read the decisions, subscribe to either the Ole Miss or MC law school briefing service and receive summaries via email after each handdown.

….

If you know that your case will involve an issue that is out of the ordinary, have your authorities copied and ready to give the judge. Don’t just read off a few case cites; have copies of the decisions to hand the judge. Some judges require you to give a copy to opposing counsel. When you have authorities at hand, it not only aids the judge in making the right decision, it also communicates to the judge in not-so-subtle fashion that you know you are on sound ground and have confidence that the law supports your position. Contrast that with the lawyer who, when asked what authority supports his position, replies “Well, I know there’s a case out there on point, judge, and if you give me about 10 days, I might be able to find it.”

Have your trial factors printed out and handy, with case cites. Use them as checklists to question your witnesses.

Implementing this tip will be no problem for the attorney with a good paralegal. In The Empowered Paralegal: Effective, Efficient, and Professional I include an entire chapter on preparing a trial notebook organized around the elements of a cause of action. Each element is supported by the evidence available to prove the facts that meet the requirements of the element. For item of evidence and each witness’s testimony the possible objections are anticipated and the relevant law cited with copies of the pertinent cases included. All element is cross-referenced to the exhibits and testimony; each exhibit cross-referenced to the elements it supports and the witness who will provide the foundation its admission into evidence. With the proper assistance from a professional paralegal, any attorney ought to be able to impress the judge and the jury with their professionalism. Even more important, that attorney is much more likely to win the case!

The really fortunate attorney will be able to bring the paralegal to court. As noted previously the good legal team can work as smoothly as a dance team both in the office and in the courtroom. If you both understand the case and have a well-organized notebook, objections to evidence (for example) are anticipated. The opposing attorney objects. Your attorney quickly explains the basis for admission of the evidence. The court asks for supporting law.  The attorney (trying not to smile to broadly) reaching out her hand and you place into it three copies of the case the judge needs to see – one for the judge, one for opposing counsel, and one for your attorney. Smooth as wet butter!

Another Problem with Social Networks – Not Using Them Enough!

Wednesday, August 17th, 2011

Through posts from Patti’s Paralegal Page and Lawyerist.comI read “Ethical Bounds of Using Evidence From Social Networks” at Law.com. While much of the article covers well-tred ground (especially by Lynne DeVenny of Practical Paralegalism. But this article by H. Christopher Boehning and Daniel J. Toal includes analysis of  a recent article published in the Delaware Law Review, in which attorney Margaret DiBianca ” identified a number of these novel ethical issues.” In essence the article points out that given the prevalence of social networking, it may be a violation of an attorney’s ethical obligations of competent representation, diligent representation, and preservation of evidence not to become of aware of evidence available on social network sites for all parties to litigation. For example, they point out, ”

Preservation of evidence. Under Rule 3.4 (a) (1) of New York’s Code of Professional Conduct, a lawyer may “not suppress any evidence that the lawyer or the client has an obligation to reveal or produce.” The duty to preserve relevant evidence — including “computerized information” — attaches upon the reasonable foreseeability of litigation.

Upon learning that a client’s social networking site contains information that is potentially harmful to a claim or defense, a lawyer may be tempted to advise the client to remove the harmful content.[FOOTNOTE 12] To do so, however, would risk running afoul of Rule 3.4 (a), and incurring sanctions for spoliation of evidence.[FOOTNOTE 13]

A lawyer cannot, however, attempt to preserve that which he does not know exists. This is yet another reason why lawyers should familiarize themselves with clients’ online activities — to ensure compliance with the rules of discovery.

Since checking the internet for possible evidence is typically a paralegal’s job, take a moment to click through and read the entire article. Then make an addition to your case startup checklist!