Posts Tagged ‘role’

Reduce the State Budget: Hire Paralegals

Thursday, April 28th, 2011

Every state and local government is looking for ways to reduce costs while maintaining services. None needs to do so more than California. In today’s Capitol Weekly: The Newspaper of California Government and Politics,” Malcom Maclachlan asks “Should AG hire more paralegals?” and pretty much answer the question affirmatively in an article that makes a good case for the effectiveness and efficiency of professional paralegals.

Maclachlan notes,

But there appears to be one cost-cutting trend in the legal industry that the AG’s office has not kept up with: hiring more paralegals. These are lower-cost employees who can do much of the support work for attorneys, including some tasks that are often carried out by attorneys.

“There has been a push, and clients have forced the push, starting in the early or mid ’90s to lower the costs of their legal bills and use as many lower-level, inexpensive people as they can,” said Tom Chase, owner of Chase Legal Professionals Inc. in Folsom.

“Paralegals are definitely part of that process,” added Chase, who is not an attorney but has managed four different law firms. He also taught a course on law firm management at the University of the Pacific’s McGeorge Law School from 1989 to 2004.

Maclachlan also addresses explanations (excuses) given by AG spokespersons, e.g., “The spokesperson for the AG also said that the litigation-heavy nature of their work limits the numbers of paralegals they can use. Many law firms do most of their work outside of court—filing real estate or tax documents, or other work that does not involved the inside of a court room.   But Chase says the law firms that hire a lot of paralegals are often the same ones that do a lot of litigation. Paralegals often sit in on depositions and summarize them, or organize exhibits for trial.”

It is a good sign for the paralegal profession that reporters like Maclachlan recognize and report on the role paralegal can play in the delivery of legal services regardless of the sector in which that service is delivered – something that you, I, Dupont, and the ABA have known all along!

The Value in Critical and Analytical Thinking

Tuesday, April 5th, 2011

It’s been a while since I posted. I appreciate the emails asking whether I still exist! I do, but I’ve been quite busy. I’m teaching extra courses this semester, weekends have been taken up with projects such as teaching Constitutional Law to reserve and part-time police officers. In addition, I’m attempting to complete my Masters in Philosophy and had the opportunity to present a paper at a recent annual conference of the Mississippi Philisophical Association.

Normally when I find myself in such a situation, I fill in gaps by relying on posts that incorporate ideas or actual posts from other blogs or emails that I’ve received, but I even seriously behind in reading the many items backlogged in those two categories. However, I have spent some time reading over the last couple of days and will be working off these materials for posts until I can find time for truly original work.

I’m starting with a post from Judge Larry Primeaux’s blog on “THE VALUE OF THINKING LIKE A LAWYER.” That post itself features an article by Professor Harner of Univsersity of Maryland School of Law, which “begins by accepting some of the premises offered by Ribstein and Susskind: that forces are at work changing the legal profession; that the legal profession is becoming commoditized and generic; and that survival as a lawyer, and indeed, survival of the legal profession, will demand evolution in the way lawyers offer and market services.”  But I focused more on Judge Primeaux’s opening words,

In law school we were taught not so much the law as how to think like lawyers.  That is, we were taught to think analytically, to break complex issues into comprehensible components, and to bring creative solutions to bear using the framework of the law.

The judge’s comments and the post in general are, of course, directed to attorneys, but I belive the judge’s comments (at least) are applicable to paralegals, especially in the context of an ongoing discussion on the Paralegal Today listserv. One comment there states,

I agree finding a job as a paralegal is extremely competitive and the employers want to pay $10.00 an hour even with a bachelor. Its like they no longer value the cost and effort that you put into getting an education. When I graduated from undergrad four years ago I was told from my professor that becoming certified was not necessary, however, I noticed that more jobs are asking for five to ten years experience and requiring certification for anyone with less experience. I think that the schools should be honest and inform the students about how hard it is to get a job as a paralegal making a decent income with no experience.

To this another responded,

I agree with you that the schools and colleges should be notified of what is really going on out here after we spent all this money and time and can’t find a job because attorneys are taking them, and they only want to pay us $10.00.  The should be telling students that the demand for paralegals is diminishing because there are so many unemployed attorneys.

I agree that paralegals schools should be forthright with students regarding the prospects for obtaining employment (to the extent any of us can predict the prospects of obtaining employment in two or four years based on the market at the time of enrollment), but my thoughts today are on the comment that law firm employers do not value the education paralegals get (through formal education or experience) and that the devaluation is at least in part unemployed lawyers. While there are many indications that this is happening, I am writing once again to propose to those attorneys who read this blog that the use of unemployed attorneys as substitutes for paralegals is a mistake.

This issue has been addressed here before, but I’ll take another shot at it today using the concept of “thinking like a lawyer” as an example. Well educated paralegals are trained to do a number of things like an attorney (not identical to an attorney.) If we things of the capacities of paralegals and the capacities of attorneys based on education and experience as Venn diagrams we see that there are capacities (usually varying in degree), but there are many tasks for which paralegals are trained that attorneys are not. For example:

•PARALEGALS
•Client Communications, Docket Management, Calendar Management, File Management, Legal Research, Legal Reasoning, Critical and Analytical Thinking
•ATTORNEYS
•Client Representation in Court, Legal Tactics and Strategy, Legal Advice, Legal Research, Legal Reasoning, Critical and Analytical Thinking
Quarterbacks and guards are both atheletes and they are both football players. Many of their capacities overlap. It’s a mistake to hire a guard to play the position of  quarterback. It is a mistake to hire quarterback to play the position of guard. Likewise, it is a mistake to hire an unemployed attorney as a paralegal. In practical terms they cannot and will not “block” clients or provide the same protection from a malpractice blitz as paralegals.

As stated previously,

In general, lawyers are either over-qualified or under-qualified for many of the available non-lawyer positions. For example, one firm that advertised for an administrative assistant was inundated with lawyer résumés. But the firm declined to hire a lawyer because it felt the candidate would simply leave once a better job came along.

The point is not, however, that the lawyer is over-qualified. The lawyer is simply not qualified by training or experience to do what paralegals do. For example, the paralegals role in client management is quite different from that of an attorney.

Lynne Devenny of Practical Paralegalism  summed the training aspect up well :

While lawyers’ training is usually a three-year immersion in case study and analysis, many paralegals have undergone two to four years of specific paralegal training which is much more practice-oriented and very different from most law schools’ current curriculum.

Chere Estrin, Editor-in-Chief of Know: The Magazine for Paralegals handles the experience issue this way,

Besides differences in training – lawyers are trained in the practice of law while paralegals are trained in procedures and processing – few lawyers have the on-the-job experience to be a paralegal. In fact, while lawyers can delegate a paralegal assignment, very few can execute it. The awarding of a law degree does not guarantee knowledge of the finite and detailed responsibilities of paralegals.

And Melssa H. from Paralegalese, who I have previously quoted in an encouraging sequel on the topic “Does Your Attorney Understand What You Do?” makes an point that may be even more important:

Also, we need to stop tiering in the legal world. When we say that paralegals and attorneys are trained differently for different jobs, we are not saying that the attorney’s job requires a smarter or more capable person. We are saying the attorney’s job requires a person with a law degree and license to practice, while the paralegal’s job has other requirements (which I personally feel need to be more uniform as we move forward). If I were a lawyer, I would want the most capable, intelligent person I could find to assist me in my practice. After all, if the paralegal is doing work that, absent the paralegal, would be done by the attorney, I would hope the paralegal is at least as competent as the person who chose to go to law school would be. …  Rather than a viewing this as a problem, I like to compare it to the different jobs nurses and doctors do. The doctor may be fully capable of performing the duties of a nurse in a technical sense, but the nurse’s experience and training probably make him better at the job.

The attorney and paralegal are parts of the legal team. The attorney, like a quarterback, directs that team. Except in exceptional circumstances, the quarterback is not expected to play the role of the other team members – primarily because he is not trained or experienced enough to perform those roles. No one want the quarterback responsible for protecting against a 300 lb defensive lineman. The same applies to the protection a paralegal gives from many clients through skillful and professional client management.

UPDATE: After writing the above post I check through the “backstage” data for the blog over for yesterday and found a link for Superlegal Fun, a paralegal blog that contains a post from last Thursday that asks an newly minted attorney who could not find a job as an attorney, “Dear JD: What exactly did you learn in law school?:”
JD is an attorney (hence the nickname JD), but couldn’t find a lawyer job, so he took a job with our firm as a Paralegal.

Today, he asked what ABN and LR meant.

For those who don’t live in a law office, you may not know that those acronyms stand for “associated business name” and “local rule.”

That’s right. He didn’t know LR meant local rule. Oh the humanity, bring me some sticks to draw that man a picture on the wall of his cave!!

No one is expected to know everything about law or law offices freshly out of law school or paralegal school. However, if a law firm is going to spend money giving on-the-job training to someone for a paralegal position, it seems to make sense to start with someone who has the appropriate basic training and will not be constantly looking to move on to another role in the firm leaving the firm to spend the money giving a real paralegal the same on-the-job training!

Improving the Dog and Pony Show

Thursday, March 10th, 2011

In The Empowered Paralegal: Effective, Efficient, and Professional I state that when it comes to a trial “the best dog and pony show wins” meaning that often it is the best prepared case that wins, not necessarily the best case. The best prepared case is not simply the case with the most information, but the case in which that information is organized and set for presentation to the jury in a way the jury can understand it. Today’s post “Show Me the Money!” from Judge Primeaux on his blog illustrates this point as it applies to any factfinder, including those wearing a black robe:

As a judge I can tell you it’s hard to capture every detail in my trial notes. Sometimes the witness just speaks so fast  that I stay three sentences behind, trying to catch up, and just can’t get it all. Sometimes the significance isn’t clear until much later in the trial or even when the judge is writing the opinion, and then it’s too late.  Sometimes a verbose witness will bury the critical info under an avalanche of mostly meaningless words.

Next time you have an equitable distribution case, why don’t you sit down with your client during your trial preparation and work up a spreadsheet that shows how she wants the marital estate divided. 

The post includes other suggestions and the questions necessary to lay a foundation. I cannot emphasize enough the importance of the role of this kind of preparation is for a successful trial and the importance of the paralegal’s role is in preparing a well-done trial notebook. For more on this see Judge Primeaux’s blog and Chapter 7 of The Empowered Paralegal: Effective, Efficient, and Professional.

Paralegals as Answer to Access to Justice Issue in Ontario

Wednesday, March 9th, 2011

The Law Society of Upper Canada continues to consider changes in its experiment of paralegal licensure and regulation to assist in remediating access to justice issues. At the moment there is controversy brewing because the LSUC is beginning its discussion of expanding the scope of permitted paralegal activity based on “a decade-old report that backed paralegal calls to practise in that area as the basis for a promised review of the scope of their practice.”

Here’s some of the back-and-forth as reported by Law Times:

Marshall Yarmus, the paralegal whose motion at the annual general meeting last year sparked the commitment to a review, says Cory’s report is a “good starting point.”

“In terms of family law, we’re looking for things beyond what he suggested because paralegals used to be allowed to make appearances in the family court for certain matters,” he says.

“But at least it also addresses other issues like wills, real estate, and other areas of law where paralegals are not currently allowed to practise and [that] he recommended.”

Chris Surowiak, president of the Paralegal Society of Ontario, welcomes the law society’s action on the scope of paralegal practice.

“The public needs assistance within many aspects involving family law and the public can only benefit in using the professional services of a paralegal in this area,” he says. “Expanding our scope of practice can be a win-win for lawyers, paralegals, and ultimately the public.”

But Cynthia Mancia, co-chairwoman of the Family Lawyers Association, isn’t so sure.
“The biggest underlying theme of justice Cory’s [report] was access to justice, and I think it’s a mistake to equate expanding the use of paralegals as an answer to the existing well-documented access-to-justice [issues] that exist,” she says.

“There is a perception out there that paralegals can provide the same services that lawyers provide but more cheaply. The fear family lawyers have is that that perception isn’t grounded in reality.”

I’m somewhat biased on this as I’ve been arguing for quite some time that paralegals should have an expanded role in plugging the access-to-justice gap.  So it may be no surprise that I take issue with Mancia’s characterization.  It seems to me that it is quite correct to equate expanded paralegal actions with an answer to access to justice issues.  The issue is not whether paralegals can provide the same service as attorneys. They cannot. However, there is no reason paralegals can’t provide some services now provided by attorneys at a lower cost thereby expanding access to justice for those who cannot currently afford any representation.

 The position of attorneys who oppose this type of role for properly educated, licensed, and regulated paralegals are contending that somehow people lacking any legal training at all who cannot afford an attorney are better off confronting the legal system on their own. This position is counterintuitive and I strongly suspect they cannot provide any data to back up the claim.

For more on these issues check out  the “Canada” and “Access to Justice” categories.

Paralegals Outrank Lawyers and Judges

Thursday, January 6th, 2011

I little while back I did a post discussing (or avoiding discussing) the relative stress levels of being a paralegal compared to being a judge. Stress is just one of the factors used in a new job ranking reported on ABAJournal.com. According to the report, “A paralegal job outranks lawyer in a new rating of 200 jobs by a career website,” beating both lawyers (#82) and judges (#53). The list, provided by CareerCast.com, ranks based on five criteria: physical demands, work environment, income, outlook and stress.

 ABA Journal.com  also states: CareerCast.com lists an income figure for each job that is based on estimated midlevel income and income growth potential. For paralegal, the income score is $47,153. For lawyer, it is $113,211. The website also lists a hiring outlook that is based on expected employment growth, income growth potential and unemployment data. For paralegal, the hiring outlook is 23.53, while for lawyer it is 10.11.

Put on your “Junior Paralegal Hat?”

Monday, January 3rd, 2011

Last Thursday’s Biloxi-Gulfport Sun Herald includes “4 tips to make your divorce easier for your divorce attorney, yourself
By Nancy Perry of divorce360.com. The advice is all pretty good, but I was struck by tip four:

4. And lastly, put on your junior paralegal hat.

There are many things you can do rather than pay your attorney’s paralegal to do it. By helping with the workload, it will not only keep you involved in your case, but it will save you money. The best example is preparing discovery responses and marital asset inventories. You should gather the documents, copy and organize them and have them ready to go to the paralegal well before the due date. This will save the paralegal a lot of time rather than you handing over a pile of mixed up papers and expecting her to sort through them and make heads or tails of them. Also, spreadsheets are a great way to list and organize the marital assets.

Now those of you who have read either of The Empowered Paralegal books know that I am a big advocate of making the client an integral part of the legal team.  Also, I agree that the client, as part of the legal team, should do the things suggested in this “tip,” but not as a junior paralegal.  This is the role of a client who has been integrated into the legal team as a fully functioning and well managed member of that team in order to allow the paralegal to utilize his or her valuable time in the way that he or she can most effectively utilize that time in his or her role as a member of that legal team.  We need not, and ought not, to blur the distinction role of each member of the them. Rather, as discussed extensively in The Empowered Paralegal: Effective, Efficient and Professional, the paralegal ought to manage the client in a way that make the distinctive roles of each member clear, but integrates them into an effective team.  After all, it makes little sense to advise a client “You should gather the documents, copy and organize them and have them ready to go to the paralegal well before the due date.” If the client does not understand what discovery is, what documents are required, how the documents will be utilized, etc.  It is not uncommon for attorneys and paralegals to simply assume such understanding on the part of client. As discussed in TEP and previously here it is a mistake that hinders client management to make that assumption.

India aims to create an army of paralegal volunteers

Thursday, November 4th, 2010

As a discussion on the Paralegal Today listserv is currently discussing, the term “paralegal” can take on a variety of meanings. In many parts of the worl paralegals serve a function quite distinct from anything we consider covered by the term. I’ve previously posted on this phenomenon in countries such as Sierra Leone . Here’s an excerpt from recent story from The Telegraph in Calcutta, India:

To the downtrodden and the dispossessed in Andhra Pradesh, paralegal volunteers, sometimes referred to as barefoot lawyers, have proved to be a godsend. Now, four years after the Paralegal Volunteer Scheme was introduced in the state — it was started in Andhra Pradesh in October 2006 — the National Legal Services Authority (Nalsa), a body constituted under the Legal Services Authorities Act, 1987, to provide free legal services to the weaker sections of society, is trying to replicate the scheme across all districts and villages in the country.

Nalsa recently announced plans to provide training to around one lakh paralegal volunteers who will help poor peasants exercise their fundamental rights and make them aware of different government schemes and their benefits.

“Our aim is to create an army of paralegal volunteers who would act as agents of legal awareness and provide legal aid to all sections of people. They are expected to act as intermediaries between the common people and the legal services institutions and help remove barriers to accessing justice,” says Nalsa member secretary U. Sarathchandran.

Click here for the rest of the story.

While I do not see paralegals here in exactly this role, I do consider the profession to be a key to solving the access to justice problem in the United States as discussed in this post.

It is interesting that paralegals in India are being used in this capacity and in a more traditional role, while being a potential outsourcing threat to paralegals in the United States.

Court Finds Added Value of Paralegal Work

Tuesday, June 29th, 2010

From time to time the paralegal profession receives a boost from the recognition it receives from a court and I’m always pleased to post about those boosts. Today’s example is the matter of STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. EDGE FAMILY CHIROPRACTIC, P.A. et. als., Case No. 1D10-0565 from the First District Court of Appeal in Florida as reported by leagle.com. The primary issue in this case was whether it is proper for a court to apply a “multiplier” to paralegal fees as well as attorney fees when awarding fees to a party.

As the court notes, “the purpose of the multiplier is to enhance the fee calculated under the lodestar methodology to take into account the fact that an attorney working on a contingent fee contract is generally not compensated for any of the services provided to a client when the client does not prevail. See Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla. 1985) (“Because the attorney working under a contingent fee contract receives no compensation when his client does not prevail, he must charge a client more than the attorney who is guaranteed remuneration for his services.”), reaffirmed in pertinent part by, Standard Guarantee Ins. Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla. 1990). Because the potentially uncompensated legal services provided to the client include not only the attorney’s work, but also the paralegal’s work, it is appropriate to apply the multiplier to the paralegal fees included in the award. Stated another way, because the paralegal’s work is part of the legal services provided to the client, there is no principled reason to treat paralegal fees any different from attorney’s fees in regards to the application of the multiplier.”

The court relied a great deal on section 57.104, Florida Statutes, which provides:

In any action in which attorney’s fees are to be determined or awarded by the court, the court shall consider, among other things, time and labor of any legal assistants who contributed nonclerical, meaningful legal support to the matter involved and who are working under the supervision of an attorney.

It also relied on U. S. Supreme Court decisions:

In Missouri v. Jenkins, 491 U.S. 274 (1989), for example, the Court held that the term “reasonable attorney’s fee” in 42 U.S.C. § 1988 encompasses not only the work of the attorney, but also that of paralegals whose labor contributes to the attorney’s ultimate work product. Id. at 285 (“We thus take as our starting point the self-evident proposition that the `reasonable attorney’s fee’ provided for by statute should compensate the work of paralegals, as well as that of attorneys.”). The Court also observed that the use of lower cost paralegals rather than attorneys encourages cost-effective delivery of legal services and reduces the cost of litigation because, if paralegal fees were not recoverable as part of the attorney’s fee award “it would not be surprising to see a greater amount of such work performed by attorneys themselves, thus increasing the overall cost of litigation.” Id. at 288 n.10.

The Court recently reaffirmed Jenkins in Richlin Security Service Co. v. Chertoff, 128 S. Ct. 2007 (2008), where it held the term “attorney’s fees” in another federal statute included fees for paralegal services as well as compensation for the attorney’s own labor. As in Jenkins, the Court declared that it was “self-evident” that the statute embraced not only attorney’s fees, but also paralegal fees. Id. at 2014-15.

Thus, it appears that both the Florida Legislature and this Florida court have a firm grasp on the role and value of paralegals to the lawyers they assist and the legal system as a whole. This recognition can only help resolve some of the confusion in this regard still held by much of the public and many members of the bar.

Attorneys and Paralegals: What, Why, Who, and How

Thursday, June 24th, 2010

Almost time to return to Oxford, teaching, and regular blog posts. In the meantime, I’m enjoying the peace and quiet of a small cottage on a small lake in Maine, having sent The Empowered Paralegal: Working with the Elder Clientoff to the publisher. (Expected publication date is September 28, 2010.)

In the meantime, I do get some short opportunities (such as half-time in the World Cup games) to scan the internet. Recently I was particularly drawn to a question posted on the Paralegal Today listserv: “Should I become a paralegal or an attorney?” Actually it was a response rather than the question itself that interested me as it provided a good statement of the different roles played by paralegals and lawyers as members of the legal team, a topic of frequent discussion on this blog. Paralegals are not just lawyers who did not go to law school and lawyers are not just paralegals who did go to law school. Each fills a unique role on the legal team. Most lawyers cannot do well what paralegals do well. The reverse is also true. With permission of the author of that response, I am providing it here in full:

Tamika: I think it depends on what you want to do in your career and where
your strengths lie.

From my observations, attorneys spend more time with the “why” and the
“what” while paralegals spend more time with the “who” and the “how.” For
example: I work in transaction law (estate planning, business planning,
etc.). A client meets with my attorney and they discuss “what” the client
wants or needs, and “why” they want/need it that way. Big picture stuff.

After the meeting, I’m involved in more of the detailed daily contact with
the client, their family members, the other parties, other counsel, other
members of our staff — the “whos.” And I’m involved in the “how” — how
does this need to transaction need to close, how do I get the clients
wants/needs in writing, how do I best help communicate the goals and end
results to the clients, how do I keep my attorney in the loop, how do I need
to communicate with others in the office to get the job done properly for
the client, how do I best organize the documents for the meeting? Almost
all the details fall within that.

Sometimes, I really wish I’d gone to law school. Sometimes . . .not. Like
several others have said here: I don’t want the headaches of a law
practice. I’m glad I can go on vacation and not have my cell phone ring.
Plus, my strengths lie in handling the details. I can see the big picture,
I can even help paint the big picture; but I truly enjoy the communication &
organization aspects of my job.

So, take some time to think. What do YOU want out of your career? What are
you best at? When you picture yourself working, what does that picture look
like? If you still can’t see it: ask to shadow someone from each
profession. I’d suggest shadowing them for several days; because no two
days are ever the same. Plus, go sit in court and watch what happens. See
what appeals to you. That will give you your answer, I think, quicker than
us telling you whether we like our careers. :-)

Whatever you decide, best of luck to you! And congratulations on finishing
your BA!

Tina Brower Medlock, ACP
Certified Paralegal
Advanced Certification — Probate and Estate Planning
Hyden, Miron & Foster, PLLC

Significant Signing Opinion from NC State Bar

Sunday, June 13th, 2010

Thanks to Kimberly Johnson from Carolina Paralegal News who sent me links to the North Carolina Lawyers Weekly and the South Carolina Lawyers Weekly. Opening the link to the NCLW, revealed an interesting story about an ethics opinion ruling that an attorney may let a paralegal sign the lawyer’s name to a pleading if “exigent circumstances” exist. According to the story:

Although the phrase “exigent circumstances” isn’t defined by the opinion, letting a paralegal sign an attorney’s name could not be done “as a routine matter,” cautioned Alice Neece Mine, the Bar’s assistant executive director.

“It has to be some extraordinary situation, like you’re out of town or deathly ill or can’t get out of court because you’re trying a case, and it has to be signed that day,” said Mine.

Under these circumstances signing the pleadings may appear to be a mere ministerial act.  So we am I posting about it? I think it is important that the topic was brought up and an opinion published at all.  It indicates a recognition of the role of the paralegal in the law office. Much of the discussion I see in state bar opinion seem to “talk around” or simply ignore the existence of paralegals as a member of the legal team. Here the panel seems to have at least attempted a realistic evaluation stating:

Rule 5.3, dealing with an attorney’s responsibilities for non-lawyer assistants, and Rule 5.5, regarding the unauthorized practice of law, were also relevant, the opinion states.

“Before permitting a paralegal or other non-lawyer staff member to sign the lawyer’s name to any court document, the lawyer must carefully review pertinent case law, local rules, or rules of civil procedure to determine whether such delegation is permissible and therefore compatible with the lawyer’s professional obligations,” the opinion states.

“In addition, the lawyer must exercise the appropriate level of supervision to avoid aiding in the unauthorized practice of law.”

As regular readers are aware I’ve often commented on the attorney’s obligation to  the paralegal to provide “the appropriate level of supervision.”