The Empowered Paralegal

Today’s post by Judge Primeaux on his Chancery Court blog notes the importance of preparing witnesses. He notes, “There are two kinds of witnesses: the kinds who help your case; and the kinds who hurt it. You want every witness called by you to be in the former category.” He correctly points out that the attorney him or herself should be directly involved in witness preparation, but I believe that the paralegal can provide essential groundwork for the preparation process – groundwork that supports both the witness and the attorney. Indeed, Chapter 7 of The Empowered Paralegal: Effective, Efficient, and Professional is devoted to trial preparation. There I suggest that witness preparation should go beyond simply focusing on what the witness will say,

Frequently trial preparations focus on what the witnesses or parties are going to say. The well-prepared legal team will also consider everything they can about the witnesses themselves. Include a short biography of the witness or party and notes about impressions obtained by the attorney, you or investigators during interviews or depositions, in the witness section of the trial notebook. Again, much additional information can be obtained during the trial through observation. This is another opportunity for you to be the attorney’s second set of eyes and ears.

When discussing witness preparation, especially the client as a witness, I note that at the very least preparation must go beyond what the witness says to how they say it and how they are perceived by the jury.  Judge Primeaux’s post covers this territory very well and I recommend reading it in full.  In fact, I recommend clicking through the links he provides to additional pointers for more effective trial presentations.

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ABAJournal.com reports on another case in which a paralegal was called upon to testify as to events occurring “on the job:”

Unhappy about the result of a motion filed by his matrimonial lawyer in a child custody dispute, a New Jersey accountant allegedly took extreme action.

Nicholas Lucarella, now 57, is accused of hiring another state resident to kill his attorney, Peter Paras….

Testifying earlier today in state court in Freehold about the day of the June 2002 attack, retired paralegal Leslie Margolies said she became concerned after receiving a strange phone call from a purported would-be client and told Paras not to come to work on the day of the attack. She also told other staff to keep the doors of the law office locked.

“I was very concerned,” she testified.

I’ve previously posted on paralegals needing to be aware of their potential as witnesses to what has occurred and, on occasion, what has not occurred while at work. Since I still teach a class tonight before packing, I’ll just refer those interested to that post.

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Paralegals called as witnesses in court proceedings seem to be cropping up in the news this week.  In one case a witness has denied meeting with a police detective. That witness will be testifying at a search warrant hearing as will “a paralegal who brought her to speak to police and another lawyer that was involved in the case.” In another the paralegal has been called as a defense witness in a murder trial to testify regarding an incident involving the murder victim. The report states:

[She] said on the stand that while she was analyzing jewelry at the couples’ Mocksville home as part of a court-ordered appraisal of the Turners’ belongings, Jennifer Turner shoved her after becoming upset that jewelry purchased before the couples’ marriage was also to be appraised.”Mrs. Turner was standing about 6 or 8 feet away and said, ‘I want you to leave now.’ And Mrs. Turner charged at me. She put her hands on my shoulders and shoved me back and said, ‘Get out!’ I was stunned,” McMullan said, adding that she was especially frightened since she was 18 weeks pregnant at the time.

Video of her testimony is available through the link.

While paralegals can go through their entire career without becoming a witness in a legal proceeding, it is not unusual and every paralegal should be aware that each event of their day could lead to their being called to testify. This means keeping good, comprehensive records of those events in each client file.

One difficulty is that on occasion what must be recorded is what didn’t happen, as in the story Silver Blaze in which Sherlock Holmes informs Inspector Gregory:

Gregory: “Is there any other point to which you would wish to draw my attention?”
Holmes: “To the curious incident of the dog in the night-time.”
Gregory: “The dog did nothing in the night-time.”
Holmes: “That was the curious incident.”

Paralegals are not expected to record directly what did not happen. However, if one can show that records are regularly and comprehensively kept, the absence of a record becomes significant. For example, if a law office keeps a telephone log of every call that comes into the office, the absence of a call is evidence that none came in. This can be important when a client has filed a complaint or is claiming that you did not return a call. If you keep good records of your conversations with clients the fact that you did not record a statement can be evidence that you did not give the client the legal advice she now claims you gave.

There are some times though when you should actually be recording the absence of problems through records of what was present. For example in a will contest claiming either incompetency or undue influence, you may be called regarding the testator’s demeanor, state of mind, clarity and so on. Further, you may be called upon to testify many years after you actual interactions with the client. Thus, the file should, at least, reflect the absence of abnormalities. Better yet, it will reflect that you asked questions or engaged in discussions specifically intended to elicit signs of incompetency or undue influence.

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Paralegal Gateway’s Weblog has an interesting post on potential ethical issues arising from the use of Facebook by members of the legal profession. Entitled “Lawyer Cannot Ask Paralegal to ‘Facebook Friend’ A Witness,” the post includes, “The Philadelphia Bar Association Professional Guidance Committee hustled out its Opinion 2009-02 which held that a lawyer could not ask a “third person” (presumably a paralegal or office employee) to Facebook-friend a deposition witness so the lawyer could surreptitiously access the witness’ Facebook page….The Philly Bar concluded that this was improperly deceptive under their Rule 8.4…”

You might think that the paralegal/attorney relationship, being somewhat personal in natural would not entail much by way of formal ethical discussion.  However, that relationship can be the source of some of the most difficult ethical decisions a paralegal has to make: What do I do if I know my attorney is violating the Rules of Ethical Conduct and/or a law? And, even worse, what do I do if my attorney asks me to do something ethical?

Fortunately, you can find some guidance in the ethical codes of various paralegal associations. In an earlier post I discussed the importance of you, as a professional, belonging to one or more of these associations and participating in their listservs, reading their journals and the like. The ethical codes of these organizations are not laws, but they do provide a good framework to use in facing these difficult issues.

Some common sense must be invoked in interpreting the language of the code. The attorney asking you to tell a client he is in court when he is really in his office is dishonest, but is not likely to rise to the level requiring (or even suggesting) reporting.

As stated above, these codes do not have the force of law. In particular situation you may want to seek legal advice yourself. Some states do have particular laws making failure to report certain actions such as judicial bribery, a crime.  However, for the most part, it is really of a matter of ethics rather than legal consequence for the paralegal (unlike an attorney who can lose his license.)  In most cases it is going to be a matter of balancing your personal interest (you will likely lose your job if for no other reason than the attorney may lose his license), against your personal integrity, protecting the public and maintaining the integrity of the legal profession.  In the end, I would hope that personal integrity wins out over personal interests, but you must be the judge in each situation.

If you do decide to report, I do suggest obtaining legal advice first from an attorney outside of the one in which you work. Remember that attorney has a firm obligation to keep what you tell her confidential. That attorney can advise you regarding protections to which you may be entitled, the proper authority to which you should report and the correct procedures for reporting.  Generally, you will receive immunity from being sued by your employer for slander and libel, and may be entitled to certain protections against on-the-job retaliation under “Whistleblower” laws. She will help you analyze the situation to determine whether you have the necessary facts, have properly interpreted the facts and validate your decision regarding the proper balancing of interest and integrity.

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