Essential Skills
for
Paralegals
Volume I
Foundational Skills
Daniel R. Barber
Published under limited usage authorization by
West Legal Studies
Publishing Company
Copyright © 2004
Essential Skills for Paralegals: Volume One
iC
Published under authority of
West Legal Studies
All Rights Reserved
Copyright © 2004
ii
Essential Skills for Paralegals: Volume One
Table of Contents
ESSENTIAL SKILLS FOR PARALEGAL
VOLUME ONE: FOUNDATIONAL SKILLS
Table of Contents .................................................................................. iii
Acknowledgments ................................................................................... vi
Dedication .............................................................................................vi
Paralegal Rules of Classroom Procedure .................................................... vi
ORIENTATION ...................................................................................... 1
Chapter 1: The Client ............................................................................ 5
§ 1.1 THE ESSENTIAL SKILLS .......................................................... 5
§ 1.2 YOUR VERY OWN CLIENT! ...................................................... 7
§ 1.3 MAINTAINING YOUR CLIENT’S FILE ........................................ 17
§ 1.4 KEEPING TRACK OF BILLABLE HOURS ..................................... 19
Chapter 2: Defining the Profession ...................................................... 23
§ 2.1 WHAT IS A PARALEGAL?........................................................23
§ 2.2 PROFESSION DISCUSSION POINTS .........................................28
§ 2.3 PARALEGAL REGULATION AND EDUCATION ............................. 29
§ 2.4 CAREER OPTIONS .................................................................31
Chapter 3: Entering the Field ............................................................... 42
§ 3.1 LOOKING FOR A JOB .............................................................42
§ 3.2 RESUME PREPARATION .........................................................46
§ 3.3 THE COVER LETTER .............................................................. 48
§ 3.4 THE JOB INTERVIEW ............................................................48
§ 3.5 FOLLOW-UP LETTER .............................................................49
PART ONE: INTRODUCTION TO THE LAW ........................................... 53
Chapter 4: Legal Terminology .............................................................. 55
§ 4.1 THE CASE OF THE NEARSIGHTED OWL .................................... 55
§ 4.2 TERMS FOR CIVIL LIABILITY .................................................. 56
§ 4.3 TERMS FOR CRIMINAL LIABILITY ........................................... 54
Chapter 5: Court Structure .................................................................. 89
§ 5.1 COURT STRUCTURE TERMINOLOGY ........................................89
§ 5.2 COURT TITLES FOR LOCAL JURISDICTIONS ............................. 91
Essential Skills for Paralegals: Volume One
iiiC
Chapter 6: Law Office Ethics................................................................ 93
§ 6.1 WHAT ARE ETHICS AND SANCTIONS? ..................................... 93
§ 6.2 HOW DO THE ABA RULES OF ETHICS APPLY? .......................... 93
§ 6.3 ABA RULES OF ETHICS ..........................................................93
§ 6.4 LEGAL ADVICE .....................................................................96
§ 6.5 REPRESENTATION .................................................................96
§ 6.6 THE LISTS ...........................................................................97
§ 6.7 Succeeding in Your First Year as a Paralegal ...........................97
§ 6.8 Keys to Paralegal Ethics........................................................99
§ 6.9 Critical Traits a Paralegal Should Possess ............................. 101
§ 6.10 Skills a Paralegal Should Possess ....................................... 103
§ 6.11 Getting Along With Your Attorney ...................................... 106
§ 6.12 Failing Your First Year as a Paralegal .................................. 108
§ 6.13 ETHICAL ISSUES FOR DISCUSSION ..................................... 110
PART TWO: THE TRANSFERABLE SKILLS OF LITIGATION .................. 113
Chapter 7: Evidence and Procedure ................................................... 117
§ 7.1 INTRODUCTION TO EVIDENCE ............................................. 117
§ 7.2 EVIDENCE EXERCISE ........................................................... 118
§ 7.3 EVIDENCE AND PROCEDURE ................................................ 119
§ 7.4 COURT RULES EXERCISE ..................................................... 120
§ 7.5 THE HEARSAY RULE ............................................................ 121
§ 7.6 EXCEPTIONS TO THE HEARSAY RULE .................................... 121
§ 7.7 APPLYING THE HEARSAY RULE ............................................. 123
§ 7.8 PRIVILEGES ....................................................................... 126
Chapter 8: Law Office Investigation .................................................. 129
§ 8.1 THE TERMINOLOGY OF INVESTIGATION ................................ 129
§ 8.2 THE PARALEGAL AS FACT FINDER ......................................... 132
§ 8.3 DUTIES OF INVESTIGATION ................................................. 132
§ 8.4 LIBRARY TOOLS FOR INVESTIGATION ................................... 138
§ 8.5 SKIP TRACING ................................................................... 139
§ 8.6 SOURCES FOR SKIP TRACING .............................................. 140
Chapter 9: Interviewing .................................................................... 141
§ 9.1 GENERAL CONSIDERATIONS ................................................ 141
§ 9.2 THE 3-STAGE INTERVIEW PROCESS ...................................... 146
§ 9.3 IDENTIFYING INTERVIEW STAGES ........................................ 148
§ 9.4 EXAMPLE OF AN INTERVIEW ................................................ 149
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Essential Skills for Paralegals: Volume One
Chapter 10: Citation Form ................................................................. 155
§ 10.1 STATE CASES: LONG FORM ................................................ 155
§ 10.2 STATE CASES: SHORT FORM ............................................... 157
§ 10.3 STATE CASES EXERCISE ..................................................... 159
§ 10.4 FEDERAL CASES................................................................ 161
§ 10.5 U.S. DISTRICT COURT CASES ............................................. 161
§ 10.6 U.S. CIRCUIT COURT CASES .............................................. 162
§ 10.7 U.S. SUPREME COURT CASES ............................................. 163
§ 10.8 OTHER FEDERAL CASE CITATIONS ...................................... 164
§ 10.9 FEDERAL CITATIONS EXERCISE .......................................... 165
§ 10.10 CITING STATE STATUTES .................................................. 166
§ 10.11 CITING FEDERAL STATUTES .............................................. 168
§ 10.12 CITATION RULES OF THUMB ............................................. 169
§ 10.13 CITATION EXAMPLES ....................................................... 169
Chapter 11: Trial Preparation ............................................................ 171
§ 11.1 LITIGATION ..................................................................... 171
§ 11.2 STAGES OF LITIGATION ...................................................... 172
§ 11.3 STAGES OF LITIGATION EXERCISE ....................................... 173
§ 11.4 TRIAL NOTEBOOK ............................................................. 174
§ 11.5 PREPARING EVIDENCE FOR TRIAL ...................................... 175
§ 11.6 ARBITRATION .................................................................. 176
§ 11.7 THE PARALEGAL AS ADVOCATE .......................................... 178
Appendix A: Paralegal Glossary ......................................................... 195
Essential Skills for Paralegals: Volume One
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Acknowledgments
This book would not have been possible without the
hard work of Alyssa Navallo. Her tireless efforts have
made this manual more functional. Her insight has
lifted the learning experience provided within these
pages to a very high level. Her partnership has made
the process of designing educational opportunities
even more rewarding. She is, quite simply, amazing.
Dedication
This manual is lovingly dedicated to my Mother, who
valued and appreciated education as much as anyone
I have known. Born in 1923, she finished high school
but was unable to attend college. She supported my
Father as he attended seminary, and with him raised
five children. Without complaint, she went back to
work at a time most were thinking of retirement to
help support all her children as they attended
universities, and saw four of them graduate.
During holiday gatherings, our family would play
games that required a knowledge of history, science,
current events, and other intellectual prowess. And
yet this woman who never attended a day of college
never lost a game to her “educated” children, or anyone
else, until late in her life. (Her lawyer son finally
beat her in her early seventies, and I am convinced
he counts this as a higher achievement than passing
the bar.) She taught me that education is more than
letters on the pages of books. Education is that which
is remembered after what was once studied has been
forgotten. She was the most educated person I have
ever known.
I hope she knew what an inspiration she was, and
still is, to her children.
D.R.B.
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Essential Skills for Paralegals: Volume One
P.R.C.P.
THE PARALEGAL RULES OF CLASSROOM PROCEDURE
(a)
(b)
(a)
(b)
Rule 1.
Scope of Rules
These rules exist for the purpose of establishing appropriate
paralegal skills and instilling proper professional behavior in
students entering the paralegal profession. When filing
documents in court, attending a court hearing or working for an
employer, certain standards will be expected of the paralegal,
including timeliness and quality work product.
To that end,
students will be expected to meet similar standards and
expectations during their educational experience. In addition,
these rules are established to make clear the requirements that
must be achieved in order for a student to obtain his or her
paralegal certificate.
These rules may be superceded, added to, or modified by the
school or instructor offering or teaching your paralegal program.
Rule 2.
Attendance
Students are required to attend each class in it’s entirety.
Unexcused absences may not exceed a maximum set by the
school offering this program.
Just as a judge will not tolerate an attorney being late to court,
tardiness in this class will be discouraged. Any student not
counted present at the beginning of class will be considered
absent for the entire class, unless:
(1) the student provides written excuse from
a licensed physician, or
(2) the student provides written excuse from
her or his employer, or
(3) arrangements have been made with the
school or instructor to accommodate such
considerations as work schedules, or
(4) the instructor in his discretion approves
the absence or tardiness, in the interest of
justice.
Essential Skills for Paralegals: Volume One
viiC
(c)
Instructors may or may not be present during assigned
law library research sessions. Students should not rely
on instructors or library staff during such sessions.
Rule 3
Written Assignments
(a) All assignments are to be turned in on their due date.
Each class day an assignment is late will cost the student the
equivalent of one full letter grade unless:
(1) a Motion for Enlargement of Time has been turned
in and granted
(2) the instructor has approved the delay
(b)
Each assignment must receive a passing grade for the
student to receive his or her certificate.
(c)
Each assignment shall be prepared in the following
manner:
(1) Assignments shall be typed or printed. No
handwritten assignments shall be accepted
(2) All assignments shall be prepared on 8 ½
by 11 inch white bond paper
(3) All assignments shall be double spaced
unless otherwise instructed
(4) Assignments shall be typed on only one side
of each sheet of paper
(5) Each written assignment shall be stapled
on top left hand corner
(6) The student’s name shall be typed or written
on top right hand corner of the front page
(7) No folders, file holders, or plastic bindings
shall be accepted
(d)
Violation of these rules shall result in the loss of up to
one letter grade for each violation, at the instructor’s discretion.
Rule 4.
Examinations
(a)
Unless the school or instructor states otherwise, students
are required to pass each examination.
(b) Make up examinations may be offered, at the discretion
of the instructor, in the interest of justice.
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Essential Skills for Paralegals: Volume One
VOLUME
I
Orientation
Orientation
EDUCATION IS . . .
Education is that which is remembered after those things
once studied have been forgotten. Let’s begin your
paralegal education!
Orientation Chapters:
1. The Client
2. The Profession
3. Entering the Field
The Rosetta Stone
For more than 5,000 years, the hieroglyphics of Egypt
were indecipherable. Some of the greatest minds of the
ages attempted to unlock the meaning of these strange
symbols, but to no avail. Many Egyptians thought that
the hieroglyphics were protected by magic, that they
would never be understood. By the mid-1800s, it was
basically assumed, even by scientists, that the meaning
of these ancient works would never be revealed.
Then a block of stone was found with remarkable etchings. It was only one of thousands of stones in a heap
that had once been a building, but this one was different. For not only did it contain hieroglyphics, it also
contained two other languages (Greek and Aramaic). For
every hieroglyphic, there was a corresponding word in
the other two languages. It was, in fact, the key that
unlocked the ancient language of the Egyptians. Without that key, the Rosetta Stone, the hieroglyphics could
not be understood. The law is like the hieroglyphics. It
seems indecipherable, overwhelming. But when shown
the keys, it becomes understandable.
We wish to congratulate you on your choice to enter the
paralegal field. There are few careers which offer the
challenge, flexibility, and rewards possible in the paralegal profession. The content of this manual is designed
to prepare students in the aspects of paralegalism most
in demand. Materials for this manual have been developed through use by thousands of students across the
Assignments
country.
Choose a Client
§ 1.2
In education, there is always an attempt to balance two
Due
Date:
/
/
basic goals: the attainment of knowledge and the
development of skills. This manual is designed with the
Other Assignment:
tenet that once certain skills are developed, the attain§ ___.___
ment of knowledge is virtually unlimited. Students Due Date:
/
/
Orientation
1C
will develop skills to research any court rule pertaining to
procedural questions, create any form based upon an adequate model, or find any legal decision once given a cite
or presented with an appropriate legal question. This manual
will help develop these and many other skills. These skills
then act as keys to the attainment of knowledge.
Of course, there will always be some memorization in any
educational experience. There are skills which, when mastered, can lessen the burden of memorization. When a
student studies legal terms or phrases, procedures or systems, she or he should try to understand the concept
involved instead of the word-for-word definition or
description. Memorizing the word-for-word definition of a
"prima facie case," for instance, will not be nearly as helpful as understanding its concept. Every textbook, instructor, or attorney will define the same term using different
words and examples. Yet, the concept will remain consistent. To this end, do not expect test questions to match,
word-for-word, the definitions in the workbook or textbook. You will do much better if you work to understand
concepts.
Terminology is spread throughout this manual, and is especially dominant in Section 2. This is because in order to
discuss the many aspects of law, students and teachers
have to speak the same language. No one likes "legalese."
The reality is that as a paralegal, you will have to converse
on a level close to that of attorneys. As a paralegal you
will be expected to recognize, utilize, and understand legal terms and concepts.
Many of the assignments in this manual, especially those
related to legal research, are designed for the student to
complete with minimal instructor assistance. This is intentional. As a paralegal, you will be expected to complete tasks with a minimum amount of oversight, including
those tasks you have not previously attempted. In other
words, attorney’s want paralegals who are “self starters.”
After working on a project, your instructor will review and
discuss what you have produced, just as an attorney would
review your work product. This manual will instill in you a
2
Essential Skills for Paralegals: Volume I
sense of self-confidence that comes only with learning
through doing. In many cases, if a student is shown something or told answers to certain questions, the student remembers the answer just long enough to pass a test. If the
student works through the process to figure it out for him or
herself, the student will own the answer for life.
Use the examples and forms provided in this manual. If
possible, utilize both the Web Site and the CD-ROM accompanying this manual. This course is not easy. However,
every effort has been made to make the learning experience
in this course as productive as possible, sometimes even
enjoyable. Students should not make the experience more
difficult by ignoring the examples provided. Those of you
who do not own a computer are not necessarily at a disadvantage. Every library offers computer terminals, many with
free access to the Internet, and most computers also have
CD-ROM capabilities.
As you enter this exciting and new profession, remember: Years from now, the time and energy you spend in this
course will seem a small price to have paid for a new career.
This is your career, so give it everything you've got!
PART ONE OBJECTIVES
‰ General Understanding of the Profession
Students should understand what a paralegal is, and
the general functions that may and may not be
performed by a paralegal.
‰ Client Assignments
Each student will be assigned a client. Unless
otherwise instructed, all assignments relating to this
manual shall be based upon that client.
‰ Job Hunting Skills and Resume Preparation
Students should attain a general understanding of
various job hunting techniques, and should grasp proper
resume and cover letter form.
Orientation
3C
4
Essential Skills for Paralegals: Volume I
chapter 1
The Client
§
1.1 THE ESSENTIAL SKILLS
As a paralegal student, some of the assignments I had
to complete involved preparing legal documents that
would, theoretically, be filed in court. One of the
documents I had to prepare was a complaint. Not being
particularly experienced in computer skills at that point,
I spent twice as much time formatting the document as
I did writing the substance of the claims that formed the
complaint. Getting the caption to look just right, creating
a line to go up and down instead of across the page,
figuring out how to line up the names.
Less than a week after being hired as a paralegal by a
Denver law firm, I was asked to draft a complaint. After
again going through the struggle of formatting the
document, I didn’t have a lot of time to spend on the
substance. The result was a completely forgettable and
unimpressive document. One of the other paralegals at
the firm had a suggestion. She said next time I should
use a form. The firm had several books full of them. I
assumed this was just
Yet other gaps in my instruction became evident. I quickly
realized that lawyers do very little original work. But no
one told me this! Thinking back, it was a huge hole in my
paralegal education. Use a form! Find an example! Ask
for a template! It sounds obvious now, but it wasn’t
when I was beginning my legal career with no legal
background.
Skills and techniques that I could have been taught, that
would not only have made my life easier, but would have
produced a better product, had been overlooked in my
training. I graduated from a paralegal program knowing
Orientation
5C
how to use a few law library materials, but not knowing that
there is a system to research that applies to almost all law
library materials. I understood what an interview was, but
didn’t know how to conduct one. I could answer a question
on a test about discovery, but couldn’t create discovery. I
knew a paralegal had to keep track of hours spent on an
assignment, but had no idea why or how to do it. And so
forth.
Somehow, I had been given an education, but without the
necessary skills. And it is the skills that attorneys look for,
and pay for.
A paralegal education is not complete unless it provides
students with the actual skills needed to be a paralegal.
Skills that are transferable to any area of legal practice.
Civil litigation, criminal law, personal injury, contract law,
bankruptcy, or any other specialty. The techniques for
interviewing a client do not change according to the area of
practice. Legal research is legal research. These skills will
lay the foundation for your career. These are the skills
students will develop using this book. This book is designed
in a manner so that the learning experience mimics the onthe-job realities the student is seeking to achieve. To that
end, the next step is for each student to be assigned their
own client. Virtually all the assignments in this book will
then be based on that client’s facts.
6
Essential Skills for Paralegals: Volume I
§
1.2 YOUR VERY OWN CLIENT!
A book that attempts to train students to be paralegals
must present skills and tasks in which a paralegal would
actually engage. This book tries to do so in a manner as
close to a law firm experience as possible. To achieve
this, each student will be assigned his or her own client,
and virtually all assignments, including writing and research tasks, will be based on that client.
Law offices keep important documents in files. At the
start of their study, students should consider purchasing
a “Classification Folder” from an office supply store and
attempt to maintain the client file, and keep track of
hours spent working for the client. Just as would be
expected in a law firm.
Yet, if every student had the same client, there might
be a temptation to “share” documents and information.
Therefore, each student will be assigned a separate
client hypothetical. Using these scenarios, students
will create the following throughout the book:
1.
2.
3.
4.
5.
6.
7.
An interoffice memorandum
Client correspondence
Initial client interview questions
A summons and complaint
Discovery documents
A Trial Memorandum
Other possible documents at your instructor’s
discretion, such as an Answer or Counterclaim
These are not easy assignments. They are not “feel
good” research questions. They are designed to force
you to get into the materials, deep into the materials.
You will not find questions about whether a person
has the right to legal counsel, or what Miranda v. Arizona
deals with. Most of the following are real cases
involving real issues. At the end of your paralegal
education, it would be better to have struggled and
suffered just to find one or two cases than to find
material right away. Because when a student finds
something right away, they tend to stop. This book is
Legal Junk Food
When Thomas Schimmel of
Tawas City, Mich., went home
from work for lunch on the
afternoon of Nov. 1, 1978, he
was surprised to discover that
someone had entered his
home, eaten a bowl of cereal
and some chicken, and left. A
sheriffs deputy was called and
a report was filed, after which
Mr. Schimmel went back to
work. Returning home at 6:30
P.M., he immediately fell
asleep on the couch and didn’t
awaken until 11:45 P.M. He
then went to his bedroom,
where he discovered that the
thief had not only returned,
but was in fact asleep in Mr.
Schimmel’s bed. Schimmel
called the police, who woke
the burglar and charged him
with breaking and entering.
Orientation
7C
not attempting to teach you to pass tests, but instead is
trying to help you develop high-end paralegal skills. Expect
to be challenged.
Since in an actual law office environment a paralegal would
be able to contact the client, as well as witnesses, to find
out more about the matter being represented, students
are allowed to expand on the facts provided here to a
reasonable extent. Be creative, but not too creative!
8
1.
Your client, Wilma Setter, went to see her doctor this
past April 1st for a general checkup. She mentioned a
small lump in her breast to the doctor, but he said not to
worry unless it became larger. Two months later she went
to another physician who diagnosed the lump as cancerous
and recommended a modified mastectomy. Her doctor
claims that if it had been diagnosed at the time the client
first mentioned it to her doctor, the breast may not have
been lost. Your client wants to sue for “loss of chance”
and misdiagnosis.
2.
Our client, Hanna Graves, informed her husband John
two weeks ago that she wanted a divorce. Her husband
asked her to reconsider, so she said she would think about
it for two weeks. After the two weeks had expired,
(yesterday), our client told her husband that she had, in
fact, filed for divorce that day and that she was moving
out that very evening. Her husband became enraged,
assaulting our client and demanding sex. She refused and
begged him to stop. Despite her pleas, the husband forced
himself sexually upon our client. Your client wants to sue
her estranged husband for the emotional distress caused
by the attack.
3.
Your client, Clara Benton, owns a house on the side of
a hill. Last month, she noticed a smell she could best
describe as gasoline-like seemed to be present throughout
the house, but especially in the basement. Upon asking
around the neighborhood, she learned that the gas station
about one hundred yards up the hill from her had
experienced a ruptured pipe about five and a half years
ago. This is beyond the normal statutory time allowed to
file a court action. She is now concerned that, even if she
Essential Skills for Paralegals: Volume I
proves the ground contamination was a direct result of
the gasoline spill, she will not be able to sue. Your client
wants to sue for the damages caused by the negligence
of the ABC Gas Station in allowing the leak.
4.
Our client, Henry Green, was driving alone down Pearl
St. on the evening of the 10th of last month. The speed
limit at the vicinity of Pearl and Evans Streets is 45 m.p.h.
At that point of Pearl St. there is a slight curve to the
right as you go down a hill. Apparently as Henry negotiated
this curve, he hit a depression in the pavement (not quite
a hole) which is almost impossible to detect without close
examination. A witness at the scene, Melba Torrez, claims
when Henry hit the defect in the road, his car bounced
wildly and Henry lost control. Unfortunately, Henry hit a
tree 30 yards down the road before he could gain control
of his vehicle. Henry died an hour after arriving at the
hospital. Another woman, Kate Morris, came running out
after hearing the crash. She stated, over and over, “I told
them this would happen. I told ‘em so.” When asked what
she meant, she said she had been complaining about
that very depression in the pavement to the department
at city hall which deals with road repairs. Their response
according to Kate, was, “We’ll get to it when we get to it.”
We represent Henry’s estate. You are suing the state for
failure to make repairs to the road even though they had
notice of the defect.
5.
Our client, Mary Smythe, purchased a large screen TV
two weeks ago from Ace Television Sales. When it was
delivered two days later, a dispute arose with the delivery
man, Bryan Zorn, due to damage to the TV. After having
words with Mr. Zorn in the living room, our client left to
use the phone in her bedroom. Mr. Zorn followed and
sexually assaulted our client. The delivery man was
arrested two hours later and charged with rape, but you
are researching the civil implications. In addition, it turns
out Mr. Zorn had 2 previous convictions for sexual assault.
You are suing Ace Television, claiming they were negligent
in hiring Mr. Zorn.
6.
Our client, Betty Hilton, entered the Lions & Tigers &
Bears Pet Shop with her three-year-old daughter. While
Orientation
9C
there, our client purchased a large parrot. There was a
sign saying “Beware of Parrot” next to the bird, but the
store owner said that was only to keep people from
annoying the bird. Shortly after they arrived, the parrot
attacked the little girl, Rita, damaging her eye. It turned
out that the Parrot had a disease which caused it to
attack. Your attorney is suing the pet store under strict
liability and negligence.
10
7.
Our client, Mila Forrest, applied for a job at Himple’s
Department Store. She signed a consent form and release
permitting the store to question her doctor regarding her
physical ability to perform certain tasks. During a phone
conversation, the doctor, William Snuffles, mentioned that
our client could not have children. Our client was hired,
but soon after she began working, she was told that one
reason she was hired was that the store was happy she
wouldn’t be “burdened” with children. Despite the fact
that she was hired, our client is upset that this information
has become common knowledge at work. Our client is
suing the doctor, claiming unauthorized disclosure and
breach of doctor-patient privilege against her physician.
8.
Our client, Michelle Trump, is 35 years old. Last year,
Michelle and her husband, Peter, took a drastic step to
impregnate Michelle. After years of attempting to procreate
without success, Michelle and Peter approached a mutual
friend, Robert King, and explained to him that they could
not afford to go through the expensive process of artificial
insemination. They then asked if Robert would consent
to donating sperm. Robert agreed. After a rather awkward
process (which will not be discussed here), Michelle was
“injected” with Robert’s sperm, without having sexual
intercourse. Michelle and her husband Peter did not have
sexual relations that night, but did the following two
nights. Michelle soon announced that she was pregnant
and nine months later gave birth to a little girl, Hannah.
This should have been the end to a happy story. However,
when Hannah was born, Robert showed up at the hospital
telling everyone he was the father and passing out cigars.
Robert is threatening legal action to be named father of
the child with full parental rights. Your client is taking
Essential Skills for Paralegals: Volume I
the offensive, suing to have the paternal rights of Robert
declared nonenforceable.
9.
Our client is Ross Seller. About three years ago, her 17
year-old daughter, Rachel, came down with a very high
fever and infection while she was at a two month summer
camp. Ross was called and drove up the next day to pick
her daughter up. When Ross arrived, however, she was
told that Rachel had been taken back to the hospital the
previous evening. When Ross arrived at the hospital, a
45 minute drive, she was told that Rachel had gone into
a coma the previous evening and had died that morning.
The cause of death was an infection of an unknown origin.
It was hard, but Ross has picked up the pieces and moved
on with her life as a single adult. Last week, however,
Ross received a phone call from Phoebe Barnham, the
mother of one of the girls at the camp Rachel had attended.
Phoebe called to tell Ross that she and her daughter
Monica now twenty, had been talking about Rachel’s
unfortunate death three years earlier and Monica said,
“You know, one of the counselors said Rachel’s was the
second case of toxic shock syndrome that year.” Phoebe
called thinking that Ross would want to know. Ross
would like us to represent her. Before we begin
investigating the facts of Rachel’s death, we need to find
out whether the statute of limitations will prevent us
from winning anything for Ross, anyway. Your client is
suing for negligence. The research question will eventually
be: When does the clock start ticking as to liability for
injury from toxic shock syndrome?
10. Your client, Fred Northrop, is employed by the Acme
Insurance Company. He had worked there for about ten
years when he was transferred to the risk management
division. His supervisor, Helen Redmond, seemed to take
a special interest in Fred. She often asked Fred to lunch
and even invited him to attend several out-of-town
seminars with her. Fred always refused because he was
happily married to his wife, Wilma, and did not want
there to be any misunderstandings. Last July 5th, at
about 3:00 P.M., Helen called Fred into her office and
proceeded to “lay her cards on the table.” She told Fred
that he was a good worker and that there was currently
Orientation
11C
a position as Assistant Risk Control Manager for which he
was being considered. She also made it clear that he
would have a much better chance at the promotion if he
would accompany her to Las Vegas for the annual Risk
Manager’s Symposium. Helen said, “Since I’m the person
who will make the final recommendation, I think it would
be in your best interest to come to Vegas with me.” Fred
refused. He explained his marital situation and told Helen
that he was only interested in a business relationship.
Helen said that was fine with her, but from that point on
her attitude toward Fred changed. She criticized his work
in front of others, referred to him as a lazy worker, and,
for the first time since working for Acme, received a poor
performance review. It also turned out that someone who
had only been working at Acme for seven months and
who had no experience in risk management was hired for
the position. Your attorney wants to file suit in trial
court on grounds of sexual harassment and loss of
economic opportunity.
11. Your client, William Jackson, is being sued in civil
court for negligence. This past January 4th, William was
on his way to the shopping mall at about 4:00 P.M. At
the intersection of Trinity Ave. and Presley Blvd., William
witnessed a red Acura Legend, driven by George Hemple,
run a red light and crash into a blue Oldsmobile Cutlass
Supreme, driven by Paula Eureka. The Legend struck the
Oldsmobile on the rear end, passenger side. As William
got out of his car and ran towards the accident, he could
see the woman getting out of the blue Oldsmobile. He
also observed smoke coming from the rear of the
Oldsmobile and was afraid there would soon be an
explosion. As he got closer, he noticed the driver of the
Legend, George Hemple, still in the car, lying across the
front seat, moaning in agony. William made an
instantaneous decision to pull the injured man from the
car. His intent was to save the man from what William
thought would be an inevitable explosion. As it turned
out, there was no fire and the man William “saved” was
paralyzed from the waist down. Doctors have stated
that there is no way to determine what caused the
paralysis, the accident or being pulled from the car. In
12
Essential Skills for Paralegals: Volume I
spite of this, Mr. Hemple has sent harassing letters to
William, given newspaper interviews, and appeared on
the “Jerry Stinger” television show, claiming he was
paralyzed by William. William is suing Mr. Hemple for libel
and slander. The eventual research question will be whether
William can be held accountable for any injuries suffered
by Mr. Hemple.
12. Lilly Carr worked nights as a waitress. She usually got
off at about 11:00 P.M. This past December 1st Lilly got
off work a bit late, at about 11:30 P.M. As usual, she
caught the bus. It usually took her about half an hour to
get home since she lived at the last stop on the route. On
this particular evening the driver, Jake Ewing, struck up a
conversation with Lilly. At Lilly’s normal stop, however,
the bus kept going. Jake drove to a rural area where he
sexually assaulted Lilly. Jake was convicted of rape, and
now Lilly is suing the Haul ‘em Bus Company for negligently
hiring Jake. She claims that the bus company should have
had knowledge of the fact that Jake had a previous
conviction for sexual assault. You are suing the bus
company for negligence.
13. Gary Phelps has been charged with murder. Last
November 12th his girlfriend, Jennifer Harmon, was seven
months pregnant. Gary and Jennifer got into an argument
which ended in Jennifer falling down a flight of stairs after
a struggle. After an examination at St. Bernard’s Hospital,
it was determined that the fetus was no longer alive. Gary
is charged with murder. You work for Jennifer’s civil
attorney, who wants to file a separate lawsuit for the
emotional trauma caused by the assault and the loss of
the fetus. Eventually, you will need to research whether
the murder charge is valid.
14. Penny Katz is suing Home State University. Her son,
Jason, was a freshman at the school last fall. On September
11th of last year,, Jason went to a “rush” party at Mooga
Alpha Mooga fraternity house. Part of the evening included
hazing new recruits. The newcomers were told they would
have to drink a large quantity of alcohol. After finishing
his last beer, Jason stumbled outside and collapsed in the
Orientation
13C
bushes. He was found there the next morning and was taken
to the hospital in a coma. He never regained consciousness
and died two weeks later on September 25th. Your client
wants to sue the university for negligence in allowing the
practice of hazing.
15. Your client is Yvonne Jacobson. She is 19, two months
pregnant, and has decided to have an abortion. Before she
learned she was pregnant, Yvonne broke up with her boyfriend,
Keith Vickers. Keith does not want Yvonne to have an abortion
and has filed suit in the federal trial court to prevent her from
getting one. Yvonne has never lived with Keith, and the
pregnancy was not planned. Yvonne is filing a complaint in
the state civil court, arguing that Yvonne does not have to
have the consent of the father to obtain an abortion. She
claims this is a state matter, and the cause of action is violation
of her constitutional right to an abortion.
16. Your client, Clyde Wilson, had worked at Dice & Jacobs Law
Firm for 20 years as a file clerk. He was thought of in the
highest terms at the firm and always received sparkling reviews.
When Charles Jacobs called Clyde into his office on Clyde’s
20th anniversary last October 22nd, Clyde expected a raise.
Instead, he was told that the firm appreciated his work over
the years, but that he was being let go and someone younger
was going to be hired. Since being fired, Clyde has sought
employment elsewhere without success. It is important to
argue that Clyde could still perform the duties required of his
position. You will argue that Clyde’s civil rights have been
violated. Your attorney is filing a suit based upon violation of
those civil rights.
17. Your client, Marris Rain, is divorced from Niles Rain. During
the final stages of their marriage, the Rains sought marital
counseling from Daphney Sharpe. During one of the sessions,
Niles admitted to having being abusive to both her and the
children. They were awarded joint custody of the children.
Niles has continued the abuse since the divorce, and Marris
wants to sue for full custody. She now wants to bring the
admission by Niles made during counseling to the court’s
attention in considering support and child custody. Frasier
Sayer, Niles’s attorney is arguing that the testimony of both
Marris Rain and Daphney Sharpe are prohibited by the doctrine
14
Essential Skills for Paralegals: Volume I
of doctor-patient privilege. Eventually, you must argue
that, while the psychiatrist is prohibited from testifying
due to the privilege, the privilege does not prevent the
spouse, Marris, from testifying. But first, a complaint has
to be filed claiming emotional distress and assault.
18. Your clients are Kathy and William Bates. They are suing
the Regional School District for the death of their son, Timmy.
Timmy was in the tenth grade. For months, Timmy had
complained to his teacher, Martha Rice, about another
student, Don Gallon. Timmy complained that Don threatened
him on a regular basis and was generally a bully. The
teacher told Timmy not to be a baby and that he must learn
to stand up for himself. On November 16th of last year,
Timmy was confronted by Don on the school grounds. Timmy
tried to stand up to him. Don grabbed a lead pipe from his
backpack and hit Tim my over the head. Timmy died two
days later. The school district claims there was no negligence
and that the teacher could not have foreseen what eventually
occurred. You argue that since the teacher had notice of
the threats and took no action, the school district is liable.
Your complaint is based upon negligence and failure to
protect.
19. Your client, Wilma Maples, is a 65 year-old woman who
is in the hospital to have surgery. The surgery, a knee
replacement, goes well. During rehabilitation, she needs
assistance in many seemingly simple tasks, such as getting
out of bed. On the past February 11th, Wilma was going to
take a morning shower. She was helped to the shower by an
attendant. Wilma took off her glasses and got in the shower.
When Wilma was finished, she tried to get into the wheel
chair. Unfortunately, the attendant had forgotten to lock
the wheels on the wheelchair, a common practice under
such circumstances. Wilma fell to the hard floor. It turned
out that Wilma suffered fractured vertebrae. Your attorney
is suing for negligence. The hospital claims that there was
no negligence on its part, and that there was negligence on
Wilma’s part since she might have noticed the unlocked
wheels had she had her glasses on. They also claim that
the pain being suffered by Wilma is the result of other
deterioration of the spinal column, not the fractured
vertebrae, and that the fall simply triggered the pain.
Orientation
15C
20. Your client, Sue Hazely, took care of her father for the
last 2 years of his life. On this past April 3rd, her father,
James Roy, was admitted to the hospital for reactions to
chemotherapy treatment. James had a rather rare lung
disease, and had been given 5 to 10 years to live. During
his three week stay, several things went wrong, including
a cardiologist (Helen Hale) who failed to read the
patient’s chart before prescribing a course of action. Her
proposal assumed the disease was in the final stages
instead of the beginning stages of the disease, and
therefore did not aggressively treat the symptoms. In
addition, the father was allowed to fall three times during
his stay, each time being left alone in precarious positions.
The last fall occurred in the middle of the night. While
on “double oxygen,” he was taken to the bathroom and
left there. The attendant forgot about him, and he was
found 45 minutes later on the floor, barely alive. He was
placed on a respirator for a few hours, and eventually
regained consciousness. He was, however, severely
weakened by the fall, and died two days later. Your
complaint is against the hospital; Inhumana Hospital,
with the claims of negligence and intentional infliction of
emotional distress.
It is highly recommended that students purchase a
classification file to create and maintain a file for their
clients. Keep all materials, including notes, prepared
documents, copies of relevant cases and statutes in the
appropriate panels of the file. Consider purchasing the
following:
- a legal size classification file with two inserts
with 6 panels. They usually come in packets
of 5, so one packet will serve several students.
Classification files may be found at most office
supply stores.
- a 2-hole punch (a cheap one!)
- small labels for naming each panel
While every law firm has its own system of file maintenance,
there are some general guidelines to organizing a file in a
law office.
16
Essential Skills for Paralegals: Volume I
§
1.3 MAINTAINING YOUR CLIENT’S FILE
Most law firms use either standard legal files with panels
for the various documents, or expandable files in which
individual folders contain the various documents. Some
firms even use a combination of traditional legal files
and expandable files. The most common file is the
classification file or folder. Some have only one insert,
which results in 4 panels. The more common classification
file used by law firms has two inserts, resulting in 6
panels. Each panel has a two-pronged bracket at the
top. Thus, a two-hole punch is needed. While the form
and organizational order may vary, most organize the
material within the files into the same elements. Each
element is organized in its own panel of the file. The
following panels make up the client file:
1. Correspondence
Letters, copies of faxes, and copies of email should
be collected as a group under correspondence. Attempt
to organize it by date, the older correspondence on
the bottom. That way, as new material is added, it
can simply be placed on top. While most firms do not
use indexes for correspondence, it’s a very good idea
since it allows for instant access to materials and
acts as a document inventory.
2. Instruments
This panel is for contracts, wills, leases, titles,
and other such material. Never punch holes or staple
original documents. Consider using a hanging pocket
to hold the documents. Create a hanging envelope
with a 9 inch by 12 inch envelope. Leaving the top
flap open, create a two hole punch, then insert the
envelope in the Instruments panel of the file, and
you now have a “hanging pocket.”
3. Work Product
Hand written notes, typed notes, messages, internal
office memoranda, etc.
Orientation
17C
4. Exhibits
Materials which will be presented to the court. Again
never punch holes in exhibits. Use a hanging pocket, as
discussed in the Instruments panel above.
5. Pleadings
Collect all pleadings, motions, orders, proposed orders,
and anything else filed with the court in this panel of the
file. Be sure to keep up a comprehensive pleading index.
6. Discovery
Collect all discovery requests and responses in this
section. An index is critical. You may also want to include
a Sign-In and Sign-Out sheet for documents that are taken
out of the file. This can be helpful for both the Pleadings
and Discovery sections when multiple attorneys and
paralegals are working on a file.
Organizational Hints for Files
•
Use indexes as much as possible. When using indexes,
either write the document index number on the bottom
corner of each document, use numbered separators, or
attach numbered tags to the documents.
•
Keep the file up to date. When motions or other
materials relevant to the file are created or received,
file and index them immediately to avoid loss of the
documents.
•
If you write on any document, do so in pencil. Never
write on an exhibit or instrument.
•
Remember that the goal of the file is to know where
the material is at all times, and to make that material
easy to access.
Using the above guidelines, create a file for your client
18
Essential Skills for Paralegals: Volume I
§
1.4 KEEPING TRACK OF BILLABLE HOURS
One of the keys to being a successful paralegal lies in the
amount of monthly billable hours she or he is able to account
for. When the author of this manual was a paralegal, he had
a plaque on his desk. The side facing away had his name and
title. The side facing him stared at him every day and read:
“Is what you’re doing now billable?”
Why are billable hours important to the attorney?
For obvious reasons, the attorney wants the paralegal
to keep billable hours high. The more the paralegal
bills, the more the attorney makes for the firm. By the
way, after considering salary, office space, and benefits,
the average attorney may make a higher profit margin
off the paralegals billable hours than the attorney’s
billable hours.
Why are billable hours important to the paralegal?
Paralegals who are able to average a high amount of
billable hours wind up having control over their own
careers. The attorney makes significant profit on such
a paralegal, and is willing to pay to keep that person.
What is an average amount of billable hours?
It varies. Some paralegals don’t bill at all, such as
those who work for government agencies or courts. Some
have very high expected billable hours. The average is
between 120 to 140 billable hours per month, with 20
of those hours being administrative in nature, meaning
the client generally cannot be charged for them. Never
“pad” your billable hours. If you don’t have enough
work, go looking for it around the office. Do not stretch
your hours just to increase the amount on your time
sheet. To do so is unethical, and the attorney will be
able to tell what you are doing.
Using time sheets.
It is recommended that each student keep track of the
hours spent outside of class on assignments related to
their “clients.” For instance, in a later chapter, students
will prepare an interoffice memorandum. Every time
you work on the assignment, keep track of your time.
You may use your instructor’s name as the responsible
attorney, and a client number provided here.
Sample
Client Numbers:
Client Number 98-011.034
Client Number 01-134.113
Client Number 99-285.098
Client Number 02-179.312
Orientation
19C
Diagram 1 (a) Time Sheet
Date
Client Name
Client No.
Description of Matter
Hours
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
20
Essential Skills for Paralegals: Volume I
Date
Client Name
Client No.
Description of Matter
Hours
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
Orientation
21C
Date
Client Name
Client No.
Description of Matter
Hours
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
__/ /__
__________ __________ __________________________________ ___ . ____
22
Essential Skills for Paralegals: Volume I
chapter 2
defining the profession
§
2.1 WHAT IS A PARALEGAL?
paralegal n :
a person with specialized training who assists lawyers.
[synonym: legal assistant]
This is a common definition for the term “paralegal.” It is
provided by the American Heritage Dictionary. And it is
demonstrative of the problem that has always faced the
profession: no one seems to really know what a paralegal
is!
Look again at the definition: “a person with specialized
training who assists lawyers.”
But couldn’t the above definition apply just as well to a
legal secretary? A librarian? A file clerk? The janitor? Is
this really the best definition that can be found?
Well, let’s see how the American Bar Association defines
paralegal, using Miriam-Webster’s Dictionary of the Law.
paralegal [‘par-e-’le-gel]:
of, relating to, or being a paraprofessional who assists a lawyer.
At least we have eliminated the janitor from the definition.
But what is a “paraprofessional?” Does that mean that
paralegals are “kind of” professional? Back to the dictionary.
paraprofessional n.
A trained worker who is not a member of a given profession but assists
a professional.
Does this make things any clearer?
The author of this manual begs to differ with American
Heritage, Webster’s and even the American Bar Association,
but let’s get a couple of things straight:
•
•
•
Paralegals do more than assist lawyers
Paralegals are professionals
It’s time for a better definition
Orientation
23C
The handwriting on the wall may be a forgery.
-Ralph Hodgson, 1871-1962
Paralegals do more than assist lawyers
Currently, paralegals work in dozens of different
positions, including:
†
†
†
†
†
†
†
†
†
†
†
†
†
†
†
†
†
†
Legal Junk Food
Police officer George E. La Brash 56,
suffered a stroke on Sept. 23 1979,
while guarding the 3,300 yearold golden mask of King
Tutankhamun when it was on
display in San Francisco. La Brash
claimed that he was a victim of the
famous Curse of King Tut, which
had caused the sudden death of
numerous people involved in the
1923 discovery of Tut’s tomb. For
this reason he contended that the
stroke was job-related and that he
was entitled to $18,400 in disability
pay for the eight months of his
recuperation. On Feb. 9, 1982,
Superior Court Judge Richard P.
Figone denied La Brash’s claim.
24
Traditional law offices
Courts
Governor’s offices
Mayor’s offices
The White House
Corporate law offices
Real Estate offices
The FBI
Prosecutor’s Offices
Public Defender Offices
Investigative Positions
Government Agencies
Child Welfare Groups
Political Action Committees
Social Services
Hospital administrative offices
Free lance work for attorneys
Owners of their own small businesses,
representing their own interests
Paralegals work in diverse work environments. They
perform an incredible variety of tasks, most related to
working for attorneys, but many that are not. For
instance, when working in political offices, research,
media relations, and other tasks may be done for
non-attorney supervisors. When employed in a real
estate position, it is possible that no attorney is in a
supervisory capacity. Law enforcement paralegal
positions, such as with the FBI, are often without
direct attorney supervision.
Paralegals are Professionals
The debate as to whether paralegals are professional
or staff is still debated by some. These debates tend
to center around how a paralegal is compensated,
hourly or by an annual salary. The majority of
paralegals are not paid hourly, but are paid an annual
salary. A paralegal is commonly provided with
individual office space, unlike other staff.
Essential Skills for Paralegals: Volume I
The more relevant question in determining the
professional status of a paralegal is the role the
paralegal plays within the representative process.
Most paralegals engage in more than clerical work.
They perform tasks that require specific skills not
commonly found in staff members, such as legal
research, interviewing, and drafting legal documents.
Most paralegals are issued business cards, unlike staff,
and many have individual offices.
Also, most attorneys bill paralegals on an hourly basis
to the client, just as attorneys are billed. Many courts
have established that paralegals are different from
other office staff, declaring that, for instance, hours
spent on a case by a legal secretary are not billable
to the client, since the secretary is considered staff,
and therefore part of the overhead expenses the
attorney is responsible for. (Attorneys are traditionally
forbidden from billing for overhead costs other than
those costs incurred specifically due to an unusual
representation.)
These are only a few of the indicators of the status
paralegals enjoy today. While some attorneys still
treat paralegals as staff, a majority of attorneys
consider paralegals professionals. You are not entering
the paralegal paraprofession, but, indeed, the
paralegal profession.
It’s time for a better definition
The skills paralegals utilize are remarkably varied.
Some investigate. Some advocate. Many are experts
at creating legal documents. Some function primarily
as legal researchers. Some interview clients. Some
interview witnesses. Most use litigation skills. Many
utilize every one of these skills, in one form or another.
Thus, we now have essentially created our own
definition for the word, paralegal:
Orientation
25C
paralegal n.
A person who assists an attorney in advocating on behalf of a client,
and who in the course of this advocacy may create legal documents,
investigate relevant facts, conduct legal research, interview clients and
witnesses, and perform other relevant tasks as necessary.
This is a much closer definition to what a paralegal
really is, but we now have another problem. The
definition above could just as easily pertain not to
the janitor, but to an attorney. So, we have made an
error just as crucial as the previously provided
definitions. But it is an error that is easily corrected.
In fact, despite all the training a lawyer receives,
there are only two functions that a lawyer may engage
in that a paralegal may not:
1. A paralegal may not give legal advice
2. A paralegal may not act as a legal
representative on behalf of another
Legal Junk Food
Beatrice Daigle, 73, of
Woonsocket, R.I., filed a
$250,000 suit when she
learned that she had been
praying at the wrong grave for
17 years. After her husband
died on Jan. 28, 1961, The
Church of the Precious Blood
in Woonsocket sold Mrs. Daigle
a plot at St. John the Baptist
Cemetery in Bellingham, Mass.
Mrs. Daigle visited the grave
frequently to pray for the
repose of her dead husband’s
soul. On Apr. 26, 1978,
workers opened the grave in
order to move Mr. Daigle’s body
to another plot and discovered
instead the body of a woman,
Jeanne Champagne. Three
more graves had to be dug up
before Mr. Daigle’s body was
located. Mrs. Daigle, who was
present at the exhumation,
suffered “severe emotional
trauma and distress” because
of the mistake. In November,
1979, the case was dismissed.
26
That’s it. Every other task or skill that an attorney
engages in may be legally performed by a paralegal
under the supervision of an attorney. After a slight
modification, we wind up with the following definition:
paralegal n.
A person who assists an attorney in advocating on behalf of a client,
and who in the course of this advocacy may create legal documents,
investigate relevant facts, conduct legal research, interview clients and
witnesses, and perform any other tasks as necessary that an attorney
may perform, except that a paralegal may not give legal advice or act
as a legal representative on behalf of another.
The fact that paralegals are able to perform such an
incredible variety of tasks, and are trained in such
advanced skills as legal research and writing, may be
a surprise to you. It is a surprise to many. It is not
a surprise to most lawyers.
Most lawyers understand that there are no “secret
keys” to the skills mentioned above. It is a matter of
training and hard work.
Essential Skills for Paralegals: Volume I
This is not to say that a paralegal can replace a lawyer.
The effective difference between a paralegal and an
attorney is an attorney’s ability to identify a legal
issue from a given set of facts. This is the most
important skill taught in law schools. It is an important
difference between the professions. Smart attorneys
recognize the abilities of good paralegals, and strive
to utilize them extensively.
Which brings us to a final, important realization:
•
•
•
Some paralegals are bad paralegals
The majority of paralegals are very average
A few paralegals are excellent
Where will you be grouped? Will you be satisfied to
be an average paralegal?
This manual will give you every opportunity to become
an excellent paralegal. It’s up to you. The more you
put into the program you are taking, the more you
will get out of it. The time and effort you put in to Legal Junk Food
your education is an investment in yourself.
When Julie Wullschleger
This is a relatively new profession. There is a hidden
advantage to the lack of a universally recognized
definition of the paralegal profession. It means that
the final definition has yet to be created. As a
paralegal, you will help create that definition. Like it
or not, you will help create that definition by your
conduct. By your ethics. By the quality of your work.
By your attitude.
And yes, by your professionalism.
was
chosen Miss Arlington of 1978,
she was told that her reign as
beauty queen would last for 12
months. It came as a rude
shock when she learned that
she would be dethroned 2
months early because the
1979 pageant had been
rescheduled in order to give the
new Miss Arlington time to
prepare for the all-important
Miss
Texas
pageant.
Wullschleger, who was also the
reigning Miss Miracle Whip,
claimed that her career as a
model was being harmed, so
she sued the city of Arlington
for $10,000 in actual losses
and $50,000 in punitive
damages. District Court Judge
H. M. Lattimore ruled against
Wullschleger, saying: “The
possible injuries to [Miss
Wullschleger]
do
not
overbalance the injury to [the
city] if the injunction is upheld.’
Orientation
27C
§
2.2 PROFESSION DISCUSSION POINTS
What are the differences between Legal Assistants, Paralegals,
and Legal Secretaries?
As a general rule, the title “Legal Assistant” and “Paralegal” refer
to the same profession. While some firms may define them
differently, for the most part a legal assistant may also be referred
to as a paralegal. A legal secretary, however, is quite different
from a paralegal. A legal secretary’s duties are fundamentally
clerical in nature, while a paralegal may be asked to perform tasks
that call for judgment and skills not present in a legal secretary.
It should be noted that legal secretaries perform critical tasks for
law firms. Some are compensated as well as paralegals. But
while there is some crossover, the tasks legal secretaries perform
are different than those performed by paralegals. A secretary may
create a dictated complaint, but the paralegal would create the
complaint for him or herself.
Some firms use a legal secretary to perform paralegal duties,
creating a hybrid: half paralegal and half legal secretary. A paralegal
caught in this predicament should insist on the title of “legal
assistant,” since that title will make it easier to obtain future
employment.
Why isn’t it a good idea for a paralegal to offer services directly
to the public?
The vast majority of paralegals work under the supervision of
attorneys. The attorney is responsible for the actions of the
paralegal. To offer services to the public directly puts the paralegal
in the position of making legal judgments, or even giving legal
advice. To do so would be to engage in the unauthorized practice
of law, which is punishable as a crime. Paralegals are not attorneys,
and the skills presented in this manual and reputable paralegal
programs are those skills related to working under the supervision
of an attorney.
Should a paralegal free-lance?
Yes, if the services provided are to lawyers and law firms. In fact,
free-lance paralegals can be very well compensated if their clients
are law firms. However, as mentioned above, a paralegal should
not offer services to the general public without attorney supervision.
28
Essential Skills for Paralegals: Volume I
§
2.3 PARALEGAL REGULATION
AND EDUCATION
Licensing
For many years, the members of the paralegal profession
have struggled with the issue of whether paralegals
should be regulated by the government. This would
involve some form of licensing. The National Association
of Legal Assistants (NALA) and the National Federation
of Paralegal Associations (NFPA), the two largest
national paralegal associations, have approached the
question from different positions, with NALA being most
fervently in favor of regulation. NALA has long offered
a national certification examination, and those who
pass the exam are able to use the initials “C.L.A.” after
their name. (It should be noted that the initials “C.L.A.”
have been patented, but the term “Certified Legal
Assistant” is not patented, since one may be certified
by other entities besides NALA.)
Both of the above groups are private organizations,
and have no power to require members of the profession
to submit to regulation. Some groups, including some
local paralegal associations, have attempted to convince
state legislatures to license paralegals. However, states
have been reluctant to require licensing.
There have been two main arguments against licensing.
First, the reason for licensing a profession is, quite
simply, protection of the public. Electricians, doctors,
and plumbers are licensed because an incompetent
individual can do damage to the client. But does the
public need protection from paralegals? Since paralegals
aren’t allowed to give legal advice, with or without
licensing, who is being protected? In fact, the vast
majority of paralegals work under the direction of an
attorney. The public is protected by the attorney’s
responsibility and liability to the client. This is called
the doctrine of respondeat superior. Second, licensing
should not be used as a means of “job protection,” an
attempt to make it more difficult to enter the field
simply to protect current members of the profession.
Orientation
29C
Paralegal Education
There are hundreds of paralegal programs across the United
States. They usually take one of the following forms:
-an undergraduate certificate program
This is a paralegal certificate, when the
graduate of the course has only a high
school diploma or GED
-a post baccalaureate certificate program
Also a paralegal certificate, but the
graduate owns a college degree
-a two-year associate’s degree program
A popular form of paralegal study
-a four-year bachelor’s degree program
A relatively new form of paralegal
education.
It should be noted that the American Bar Association does not
“accredit” any paralegal program. The ABA does, however, have
an approval process. The majority of paralegal programs have
chosen not to seek ABA approval. In fact, the approval process
has been somewhat controversial. Questions regarding the
ABA approval process have centered on whether attorneys
should be the controlling entity overseeing paralegal education.
Some feel that attorneys are the most logical oversight entity
for the paralegal profession, and that the ABA would be the
logical instrument for setting educational standards. There
are some, however, who feel that attorneys, and the ABA,
could face potential conflicts of interest. If the ABA controls
the education of paralegals, whose interest will they protect?
The interests of paralegals or attorneys? And should the
paralegal profession submit itself to control of the ABA?
Because of this inherent conflict, the cost of ABA approval,
and questions regarding the ABA’s educational goals for
paralegal programs, many schools have opted out of the
“approval” process.
Some schools, however, value ABA approval as a method of
indicating to potential employers that the program is a high
quality educational experience.
30
Essential Skills for Paralegals: Volume I
§
2.4 CAREER OPTIONS
The majority of paralegals are employed in private
law firms. Law firms vary greatly in size and
structure. Most firms practice multiple areas of law.
Some firms specialize in one or two areas of legal
practice. There are advantages and disadvantages
to working in firms, depending on the size.
Firms with 1 to 5 Attorneys
On average, a paralegal wording in this size firm
will most likely work for one to three attorneys.
Advantages: Many experienced paralegals at
small law firms are given considerable responsibility.
Some become office managers. Once an attorney
becomes dependant on a paralegal at a small firm,
the paralegal is able to command a higher salary
and more flexible hours and vacation time than
paralegals in larger firms.
Disadvantages: The small firm typically starts
paralegals out at a lower salary than larger firms.
Benefits are typically less than those at larger firms.
Many small firms pay hourly wages as opposed to
annual salaries. Some firms use employees as a
cross between a paralegal and legal secretary. This
may be acceptable for an entry level employee just
breaking into the field, but is not a position in which
a paralegal with any experience would want to be
employed.
Firms with 6 to 25 Attorneys
A paralegal working for this size firm will most likely
work for three to five attorneys.
Advantages: Paralegals at these firms tend to
receive higher starting salaries than those at smaller
firms, yet also still have the potential to become
indispensable to the law firm, thus being able to
command a higher salary. Firms of this size typically
have good benefit packages. The firm of this size is
Orientation
31C
likely to practice in multiple areas of law which
means the paralegal may be able to move from one
area of practice to another. It also means the
paralegal may get experience in multiple areas of
law, making the paralegal more marketable when
seeking future employment.
Disadvantages: Some firms of this size
will start a paralegal out at a low salary, or even
hourly, until a three or six month review, at which
point the salary may increase significantly. Some
firms will also have a waiting period before benefits
kick-in.
Firms with 26 or More Attorneys
A paralegal will most likely work for five to eight
attorneys in a large firm.
Advantages: Firms of this size usually
provide employees with excellent benefit packages,
including retirement plans. Starting salaries for
large firms tend to be higher than those offered by
smaller private law firms. Jobs are more secure for
the hard working paralegal at large firms, since the
firms tend to be well established and less likely to
split apart. As attorneys come and go from large
firms, they often pick favorite paralegals to move
with them, offering them significant financial
incentives.
Disadvantages: As a rule of thumb, the
larger the firm is, the less weight an individual
paralegal can carry. A great paralegal is more
indispensable to a five or ten attorney firm than a
firm with fifty or sixty lawyers. Larger firms are
more likely to have set salaries and benefits that
are nonnegotiable. Some firms, but not all,
discourage movement from one area of practice to
another within the same firm. Finally, a paralegal
working for a firm of more than fifty attorneys is
more likely to feel as though he or she is a cog in
a machine than a paralegal working at a smaller
firm.
32
Essential Skills for Paralegals: Volume I
Paralegal Positions
There are many tasks that a paralegal is likely to
perform no matter what area of law the supervising
attorney practices. This list is most likely relevant
to paralegals in any and all of the areas of law
discussed later.
Common Paralegal Duties
• Client correspondence
• File maintenance
• Client communication
• Document preparation
• Keeping track of hours working for the client
• Drafting memoranda
• Telephone communication
• Calendaring deadlines and due dates
Following are just some of the potential areas of
law in which paralegals are employed, with some of
the common tasks that might be performed in each
position.
•
Litigation
By far the largest area of practice for paralegal
employment. Tasks include drafting discovery
documents and pleadings, conducting law office
investigation, arranging for service of process,
setting trial dates, setting depositions, drafting
deposition questions for the attorney,
interviewing witnesses, conducting legal
research, drafting legal memoranda based on
research results, drafting motions and briefs,
interviewing witnesses, interviewing clients, filing
documents with the court, and various duties
related to court and administrative procedures.
•
Construction Defect
A fast growing area of paralegal employment.
Paralegals coordinate discovery documents, often
involving document banks, due to the large
amount of documentation involved. Document
banks (or depositories) are often companies that
hold all discovery in larger litigation cases in a
Orientation
33C
centralized location. Paralegals also arrange for
depositions and arrange for (and often attend)
destructive testing of buildings to determine the
techniques and materials used in construction.
34
•
Personal Injury
Similar to standard litigation positions. Will most
likely also include obtaining medical records from
doctors and hospitals, arranging for expert medical
testimony, and possibly performing some initial
accident scene photography. Any medical
experience in combination with a paralegal
certificate or degree will be a powerful
combination when seeking employment in this
area.
•
Bankruptcy
Paralegals commonly sit in on the initial client
meeting, after which the attorney may basically
turn the case over to the paralegal for preparation
of the bankruptcy documents, including schedules
of assets and debts. During that period, the
paralegal may meet with the client multiple times
to ensure the accuracy of the documents. When
finished, the attorney will review the documents
before they are filed with the court. After filing,
(depending on the Chapter the bankruptcy is filed
under) a meeting is set with the trustee during
which creditors are allowed to ask questions of
the debtor. Bankruptcy paralegals may also
conduct a significant amount of legal research,
not only in traditional law books, but the
Bankruptcy Rules and Code, as well.
•
Transactional or Contract
Some firms specialize in contracts and
transactions. Paralegals may be involved in
drafting contracts and other agreements. In some
cases, paralegals may be expected to track the
performances of one or more parties who have
entered into an agreement. For instance, one
paralegal monitors reports from various television
stations to determine whether advertisements
Essential Skills for Paralegals: Volume I
were run at the proper time and in the correct
amounts. If there are discrepancies, she contacts
the appropriate stations to arrange for
compensatory runs of the advertisements.
Another drafts contracts for a Romanian cable
company. The attorney she works for is in Europe
(but licensed in the United States). When a
cable company on the West coast agrees to offer
the channel, she sends the contract to the
attorney for review, then monitors the
performance and ad revenue.
•
Incorporation
Any area of law that is document-intensive is
perfect for paralegal employment. Incorporation
is just such a specialty. Once a paralegal is
familiar with the intricacies of preparing Articles
of Incorporation, preparing annual reports and
lists of officers, he or she becomes a valuable
resource for any attorney. A paralegal in such a
position must have excellent long-term
calendaring skills so that corporations do not
fall dormant inadvertently.
•
Immigration
Paralegals are especially valued in immigration
positions if they possess bilingual skills. Common
tasks include interviewing clients, legal research,
assisting clients with form completion, sometimes
even acting as translator between the client and
the attorney. Paralegals should be cautioned
not to engage free-lance form assistance. Some
of the judgment calls made in filling out
immigration forms call for legal judgments only
an attorney should make.
•
Real Estate
Real Estate attorneys employ paralegals to
conduct title searches, file titles with courts,
and draft leases or other documents for the
attorney.
Orientation
35C
•
Probate and Estate
Probate and estate paralegals are in great demand.
After all, death and taxes are unavoidable! Paralegals
are used to conduct legal research, draft wills and trusts,
meet with clients, contact family members, conduct
skip traces (looking for missing relatives), monitor and
maintain trusts, and open probate in the appropriate
court.
•
Criminal
For many years attorneys were reluctant to use
paralegals in criminal representation. After all, instead
of just money, a client’s personal freedom is at risk in
a criminal case. But paralegals are now being used
extensively in such law firms. Duties unique to the
criminal law paralegal include communication with
detained clients, communicating with the prosecutor’s
office, obtaining police and other law enforcement
records. Being a strong legal researcher is a real
advantage.
•
Law Office Manager or Administrator
While not technically a paralegal position, a person
with a paralegal background can make an excellent law
office manager. Duties may include hiring and firing,
ordering supplies, acting as arbiter for personnel
conflicts, distributing work assignments, and conducting
annual reviews. In some smaller firms, the office
manager may be responsible for distributing paychecks
and maintaining the firm’s bank account, as well as
handling overflow work as needed.
Government Positions
•
36
Courts
Some paralegals are hired as law clerks for judges. In
this role the paralegal conducts legal research, drafts
orders, checks citations, and helps to set hearings and
trials.
Essential Skills for Paralegals: Volume I
•
Office of the Mayor or Governor
Sometimes a political position, meaning that
the position lasts only as long as the current
occupant is in office. Specialized duties include
tracking legislative activity, drafting proposed
legislation, coordinating travel and meeting
schedules, arranging for special recognition of
citizens, and even monitoring the press.
•
The Federal Bureau of Investigation
While the Federal Bureau of Investigation hires
paralegals to work at its headquarters in
Washington D.C., many field offices throughout
the United States employ paralegals as well.
The F.B.I. employs its own attorneys as legal
counsel, and thus paralegals are employed to
assist these attorneys. In addition, special
divisions within the Bureau may employ
paralegals. For instance, most Asset Forfeiture
Divisions throughout the county employ
paralegals to assist in title searches, property
seizure documentation, and preparation of court
documents.
•
Prosecutors
Both state and federal prosecutors utilize
paralegals. State prosecutors, such as District
Attorneys, hire paralegals to prepare
correspondence, draft pleadings and motions,
research legal matters, and to communicate
with other government agencies. Federal
positions include paralegals working for the
United States Attorney General in Washington
D.C. as well as all offices of the United States
Attorneys throughout the country.
•
Social Services
State Social Service departments employ legal
assistants. Special tasks include appearing at
administrative hearings, preparing documents
related to child welfare, conducting research
and monitoring children in foster care settings.
Orientation
37C
•
Government Agencies
Administrative agencies on both the federal and
state level use paralegals in administrative and
representative positions. Paralegals in such
positions conduct standard paralegal duties, and
in some cases they are used to represent the agency
and the agency’s position. In many administrative
settings, it is not required that an attorney be
present.
Large and Small Businesses
38
•
Corporations
The majority of large corporations have legal counsel
that employ paralegals. Corporate salaries are
usually higher than those in law firms or government
positions, and benefits are typically excellent. The
duties vary according to the kind of corporation.
•
Real Estate Offices
Real Estate offices sometimes employ paralegals
to conduct title searches, file titles with courts,
and to communicate with outside counsel, when
necessary.
•
Hospital administrative offices
Hospitals sometimes have their own legal
departments. In such cases, paralegals are utilized
for standard duties as well as tasks such as
sanitizing hospital records, responding to discovery
requests, and communicating with insurance
companies. In addition, some hospitals without
legal departments hire paralegals to perform the
above tasks within the hospital, but under the
supervision of outside counsel.
•
Insurance Companies
Document intensive companies, such as insurance
companies, are excellent sources of paralegal
employment. These companies use paralegals to
review policies, request documentation of damages,
and conduct many typical paralegal duties.
Essential Skills for Paralegals: Volume I
Non-traditional Employment
•
Political Action Committees and Campaigns
Most federal political campaigns, and many
state campaigns, hire paralegals to help
monitor the press and opposition campaigns,
conduct opposition research, and track
donations to ensure compliance with federal
election laws. State and federal political
parties also use paralegals at their
headquarters.
•
Investigative Positions
In many states, it is required that investigators
be licensed. Having a paralegal education can
be beneficial for such an individual. In addition,
some larger investigative agencies hire
paralegals. These paralegals may conduct
research, communicate with client attorneys,
assist in skip searches, monitor jury panels,
and interview some witnesses.
•
Owners of their own small businesses,
representing their own interests
Many individuals who own their own businesses
obtain a paralegal education to enable them
to conduct simple legal tasks without hiring
an attorney. For instance, some landlords want
the ability to draft a lease for their own
properties or evict someone without using a
lawyer. As long as the individual is creating
such documents for his or her own business,
such conduct is permissible.
•
Freelance Paralegals
When the legal community hears the words
“Freelance Paralegals,” the impression is of a
paralegal offering services directly to the public
without attorney supervision. Many “Paralegal
Service” businesses have popped up
throughout the country, some working as store
Orientation
39C
front operations, and some are working out of
the house and relying on newspaper or yellow
page advertising. Such paralegals specialize in
document preparation and assist the client in
filling out forms.
Conducting such services to the general public
without attorney supervision presents a serious
dilemma. To fill out forms, legal judgment is
usually required. Even determining what form is
necessary may involve legal judgment. Document
preparers often counter that they simply provide
the forms and fill in information provided by the
client. In reality, form preparers find it difficult
not to express opinions when asked questions
by clients. And as mentioned above, even filling
out forms can call for legal judgments. In other
words, such paralegals are most likely engaging
in the unauthorized practice of law.
However, there is a kind of freelance paralegal
that is perfectly ethical and within the law. These
freelance paralegals, usually experienced legal
assistants, work for lawyers and law firms instead
of the public at large. Since there is a supervising
attorney, no ethical standards are compromised.
In addition, paralegals working as freelancers
for law firms are compensated at a much higher
rate than those offering services to the public.
Paralegals working for several firms on a contract
basis are often referred to as Independent
Paralegals or Contract Paralegals.
40
Essential Skills for Paralegals: Volume I
•
Paralegal Firms
A small and relatively new phenomenon is the
paralegal firm. Typically, several paralegals open
a company, then hire an attorney to review work
created by paralegals. These businesses
commonly prepare wills, draft contracts and
leases, and appear at administrative hearings and
in small claims courts that allow paralegal
representation. It is critical that an attorney
review virtually all the work under such an
arrangement. There may be additional ethical
issues, however, such as the question of fees,
which are supposed to be set by the attorney.
Some attorneys feel the ABA is likely to ignore
such a challenge to fee setting. If it did choose
to challenge the setting of fees by paralegals in
a business owned by paralegals, the ABA would
have a lot more to lose than it would have to
gain. In other words, a loss in court could open
up the door to many more challenges to attorney
monopoly of the legal profession.
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Essential Skills for Paralegals: Volume I
chapter 3
Entering the Field
§
3.1 LOOKING FOR A JOB
When looking for employment as a paralegal, traditional
sources should not be overlooked. However, it is a
mistake to view these sources as the only places to
look for employment. Following are some traditional
sources for you to consider:
Traditional Sources
NEWSPAPERS
Obvious, but still required. The biggest limitation
is that the vast majority of paralegal positions
are never advertised.
COLLEGE PLACEMENT SERVICES
Use these if they are available to you. Check
bulletin boards at the placement center and any
law school library.
BAR ASSOCIATIONS
Contact local and state bar associations since
they usually provide some sort of job referral.
EMPLOYMENT AGENCIES
Concentrate your efforts on temporary services
so that your chances of finding a firm which might
hire you are increased.
Networking
Networking can be of great use to the serious job
hunter. It is highly recommended that you participate
in any groups and/or activities that may help you meet
paralegals and other law firm staff since a high
percentage of positions are filled by word of mouth.
Following are some suggestions for networking:
•
•
•
•
Other students in this course
Legal Secretary Associations
Paralegal Associations
Bar association sponsored activities
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43C
Telephone Book System
If correctly used, the phone book can be an excellent source
of job opportunities. Copy the attached worksheet, making
as many copies as may be required, and follow these
instructions:
•
Set a goal to make a specific amount of calls
per day (usually five to ten).
•
Use a worksheet to keep track of calls made.
•
Ask for the office manager or the person who
is responsible for hiring.
•
Starting alphabetically, work your way through
the yellow pages attorney listings.
•
Ask for an interview or, if denied an
interview, request the address and permission
to send your resume.
•
When you have gone through all the listings,
start again! Timing is everything. You never
know when you might hit a firm at the right
time.
•
The second time you call, ask specifically
for the individual in charge of hiring whose
name you obtained the first time you called.
Be positive and be patient!
You are striving towards a new career, and this investment
in time and effort will seem a small price to pay years from
now when you are an experienced paralegal.
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Essential Skills for Paralegals: Volume I
Diagram 3a: worksheet for job hunting
Orientation
45C
§
3.2 RESUME PREPARATION
Here are the rock-solid rules when it comes to preparing
resumes:
1.
2.
3.
Keep it simple and honest
Use only one page
Use action verbs
The goal of a resume is not to get the job, but to get an
interview. The rules have changed over the past several
years regarding resumes. Firms rely much less on the resume
itself, and much more on the interaction afforded by the
interview. Following are some guidelines to think about.
1.
Keep it simple and honest
The average attorney looks at a resume for only fifteen
seconds! That means you must make it easy for the
attorney to navigate through the document. If he or
she is interested in work experience, or education, or
your computer skills, he or she should be able to see
that information almost effortlessly.
Be completely honest about your history. Firms are
checking more than ever, partly because in the past
few years, many attorneys, university football
coaches, college presidents, and CEOs have been
caught lying about their past, sometimes about trivial
things that probably didn’t even matter. So checking
up has become more common.
2.
46
Keep it to one page
This may sound limited, but this is one of the most
important rules. A one-page resume used to be a
joke. Now it’s the standard. Some attorneys will
just toss resumes that are longer than one page.
That’s because the days are gone when a firm looked
at a resume, was blown away, and called the person
up to hire them without an interview.
Essential Skills for Paralegals: Volume I
Some hints at keeping it to a single page:
-only go back ten years worth of work history
-leave out the “Debate Club President” stuff
-leave out the references section.
-Use smaller margins than usual. This means
you will have more space to include info!
-If you feel it necessary, take an expanded
resume with you to the interview.
3.
Use action verbs
Use terms that emphasize performance, skills, and
efficiency. Some examples include:
accomplished
administered
completed
conceived
created
demonstrated
developed
established
expanded
generated
improved
interpreted
managed
motivated
participated
planned
provided
reorganized
revised
streamlined
supervised
synthesized
undertook
achieved
analyzed
computed
coordinated
delegated
designed
directed
evaluated
facilitated
implemented
influenced
maintained
mastered
organized
performed
proposed
recommended
reviewed
simplified
structured
supported
trained
utilized
(See Diagram 3c)
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§
3.3 THE COVER LETTER
§
3.4 THE JOB INTERVIEW
Your cover letter should be one or two short
paragraphs. Bonus hint: research the firm you are
applying at in Martindale-Hubbell Law Directory. Find
what areas of law they practice. Mention in your cover,
briefly, that you are looking for a position in a firm
involved in one of those areas of law. Or, if you hit the
jackpot and discover that you have the same Alma
Mater, casually slip it in. “Since I graduated from the
South Eastern North Dakota State College, I have been
working as ...” (See Exhibit 2b)
To state the obvious, dress appropriately. You will
want to look professional. Arrive ten minutes early.
Don’t chitchat with the receptionist unless not doing
so would appear snobbish. The attorney needs to
view you as a professional, not a staff member.
During the interview, relax. You must realize that
you’ve won just by getting the interview! And if the
firm interviews five people, four did not get the job,
but that’s OK. The other twenty-five people that
applied didn’t even get this far! So learn from the
experience. Try to determine what the attorney is
looking for so you can better position yourself in case
this job doesn’t work out.
Take writing samples with you to the interview. The
Trial Brief or Interoffice Memorandum you will create
for assignments in this book will make a great
impression, as long as you reprint the document after
correcting any mistakes. (Don’t provide the lawyer
with a graded paper. You may be proud of the “A” you
received, but it looks tacky!)
Another trend in interviewing is to ask the applicant
to perform some sort of task, such as drafting a legal
document right there and then, or researching an issue
in the law library. Looking up a court rule is also a
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Essential Skills for Paralegals: Volume I
common request, so make sure you’re familiar with the
process of researching within the rules of court. If you’ve
worked hard in this book, you’ll be prepared for anything
they can throw at you.
The most important thing about an interview is
understanding that once the interview stage is set, most
positions are not filled because of the skills or experience
of the applicant. They are filled because the applicant
made an impression on the interviewer. The impression
may have been about confidence or competence. It may
have been about professionalism. It may have been simply
about liking the applicant. Again, the resume, and the
skills and experience listed on the resume, did not get
the four or five finalists the job. It only got them the
interview. Remember, the attorney is going to have to
spend more waking hours with the paralegal than with
his or her spouse and children! So be pleasant. Smile!
Don’t be afraid to laugh (especially if the lawyer makes a
joke)! Whether it’s obvious or not, the interview winds
up being about personal interaction more than anything
else.
§
3.5 FOLLOW-UP LETTER
Thank the firm for the interview. Even if you don’t get the
job, send a very short note, saying how much you learned
from the interview experience. Doing so will keep you in
the firm’s mind. The best time frame to send the letter is
about a week after the interview. (See Exhibit 2d)
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49C
Diagram 3b: Cover Letter
Pamela Legalskills
777 E. 1st St., Apt. 111
Career City, CO 56119
(702) 555-1234
January 4, 2004
Human Resources
Pete’s Law Firm
555 Fremont St.
Career City, CO 56197
Dear Sir or Madam:
I am very pleased to hear of the paralegal position available within your
company. I have enclosed my resume for your review. It outlines how my
experience would prove beneficial to your company.
I am accustomed to a fast-paced environment where deadlines are a priority
and handling multiple jobs simultaneously is a requirement. I enjoy a
challenge and work hard to attain my goals. Constant communication with
all levels of employees has strengthened my interpersonal skills.
Please do not hesitate to contact me at anytime if you are interested in
interviewing me. My phone number is (555) 555-1234.
Sincerely,
Pamela Legalskills
50
Essential Skills for Paralegals: Volume I
Diagram 3c: Example of a Resume
Pamela Legalskills
777 E. 1st St., Apt. 111
Careerville, CO 56119
Home (555) 555-1746
Work (555) 555-0719
______________________________________________________________________
OBJECTIVE
A paralegal position, with the opportunity for professional growth based upon performance that
will utilize my abilities developed through my education and experience.
_______________________________________________________________________
WORK EXPERIENCE
Jan. 1990 to
Jan. 1993
AAA Insurance Company, Denver, Colorado
Manager of Wrongly Denied Claims
In charge of ensuring that no claim that could possibly be denied somehow got approved. Enforced
company policies which have never been seen in writing, communicated verbal instructions to
investigators and claims adjusters.
Jan. 1993 to
Jan. 1997
Just Say No Insurance to Underwriters, Las Vegas, NV
Assistant to Personal Manager
Hired individuals on the basis of their ability to say certain things with a straight face. Terminated
the employment of individuals who knowingly approved a claim. Created and coordinated an
innovative program designed to make company employees feel involved with company policy
while in fact they had no input whatsoever
Jan. 1997 to
Present
Nevada Insurance Commission, Las Vegas, NV
Consumer Relations
Responsible to make sure that no consumer unduly annoyed or pressured any law abiding
insurance company. Coordinated job placement for government employees desiring employment
in the private sector.
EDUCATION AND TRAINING
Jan. 1998
University of Psychic California
Los Angeles, CA
Politically Correct Science
In addition to general studies, specific courses included sensitivity training, eco-terrorist weekend
retreats, and medical training in treating a bleeding heart.
Dec. 2003
University of Online Paralegal Studies
Internet, USA
Certificate in Paralegal Studies
Studied all aspects of paralegalism, including ethical considerations, legal research, legal writing,
citation form, interviewing, law office investigation, pleading preparation, coordination of discovery,
basics of arbitration, form preparation, and other skills relevant to the paralegal field.
REFERENCES & WRITING SAMPLES
Available upon request.
Orientation
51C
Diagram 3d: Example of a Follow-up Letter
Pamela Legalskills
777 E. 1st St., Apt. 111
Career City, CO 56119
(702) 555-1234
January 20, 2004
Pete Duncan
Duncan Law Firm
555 Fremont St.
Career City, CO 56197
Dear Mr. Duncan:
I would like to extend my sincere thanks for your kind help
and encouragement in my job search and the interview
that we had. If I can be of any assistance to you in the
future, please do not hesitate to contact me.
I can honestly say I benefited greatly from our meeting.
Whether you choose to hire me for your position or not, I
appreciate your consideration.
Again many thanks and best wishes.
Sincerely,
Pamela Legalskills
52
Essential Skills for Paralegals: Volume I
VOLUME
I
part 1
Introduction to the Law
Part 1 Chapters
LAYING A FOUNDATION
The paralegal profession is relatively new. There are
still many issues about the profession that are unresolved. Should paralegals be licensed? Should paralegals be certified? Should lawyers control paralegal education? Should paralegals free lance? Are paralegals
staff or professionals?
Chapter 4. Terminology
Chapter 5. Court Structure
Chapter 6. Legal Ethics
In fact, some paralegals even disagree on what to call
themselves: Paralegal or Legal Assistant?
As we will see, the fact that the paralegal is still being
defined can be an advantage to the student who is just
entering the field. But the key to having a strong start
to your career as a paralegal is laying a foundation in
marketable skills. And there is no better place to start
than with legal terminology.
The legal terminology in this Part of the Manual is broken into civil and criminal sections. The terms are defined while the student reads a story, based on a real
case. This not only makes the study of terminology
more interesting, the technique puts the terms into the
context of a legal problem. Thus, students are more
likely to understand not only the definition, but the function related to the legal term.
After studying terminology, students will become familiar with both state and federal court structure. The sooner
the student learns court titles for their own jurisdiction,
the better off the student will be. Understanding court
structure will help the student later in the manual. Such
diverse areas of study as authority, research, and citation form all depend on a working knowledge of court
structure.
Finally, it is important to set and maintain high ethical
standards. Students will be made familiar with the ABA
Rules of Ethics, and will discuss various ethical situations relevant to the profession.
Assignments
Read Civil Terms
§ 4.2
Due Date:
/
/
Read Criminal Terms
§ 4.3
Due Date:
/
/
Other Assignment:
§ ___.___
Due Date:
/
/
Part One: Introduction to the Law
53C
PART 1 OBJECTIVES
‰ General Understanding of the Legal Field
Paralegals should understand the special
nature of representation and what tasks a
paralegal may, and may not, perform.
‰ Legal Terminology
Paralegals are expected to have a thorough
understanding of legal terminology.
Legal Junk Food
When Thomas Schimmel of
Tawas City, Mich., went home
from work for lunch on the
afternoon of Nov. 1, 1978, he
was surprised to discover that
someone had entered his
home, eaten a bowl of cereal
and some chicken, and left. A
sheriffs deputy was called and
a report was filed, after which
Mr. Schimmel went back to
work. Returning home at 6:30
P.M., he immediately fell
asleep on the couch and didn’t
awaken until 11:45 P.M. He
then went to his bedroom,
where he discovered that the
thief had not only returned,
but was in fact asleep in Mr.
Schimmel’s bed. Schimmel
called the police, who woke
the burglar and charged him
with breaking and entering.
54
‰ State Court Structure
A paralegal should have a thorough
understanding of local and state trial and
appellate court jurisdictions, including court
names and how to file documents.
‰ Federal Court Structure
A paralegal should be able to distinguish the
basic differences between state and federal
jurisdiction, as well as the federal trial and
appellate jurisdictions in which she or he works.
‰ Government Structure
Each branch of government uses various forms
of law. It is therefore important for a good
paralegal to understand the structure of
government and the laws that apply to each
branch.
‰ Ethics
Students will have a thorough familiarity with
the ABA Rules of Conduct, and will be able to
identify and deal with ethically challenging
situations.
Essential Skills for Paralegals: Volume I
chapter 4
Legal Terminology
Possessing a knowledge of basic legal terminology will lay
the foundation for a student’s paralegal education. Following
is a set of facts that is loosely based on an actual case. As
the facts are presented, the civil and criminal process will
be presented.
§
4.1 THE CASE OF THE NEARSIGHTED OWL
Possessing a knowledge of basic legal terminology will lay the
foundation for a student’s paralegal education. Following is a set
of facts that is loosely based on an actual case. As the facts are
presented, the civil and criminal process will be presented.
The Case of the Near-Sighted Owl
James Leroy is an eighteen-year-old boy. He owns an old model,
modified car that would be referred to by some as a “low-rider.”
In his effort to be ultimately cool, James had the interior carpeted
in shag green rug. Even the ceiling and dashboard of the car were
upholstered. There was a large, rubber snake placed on the
dashboard. The combined effect was of a snake slithering through
grass. In addition, hanging from the rearview mirror on an elastic
string was a rubber bat. With the elastic gently stretching up and
down, the impression was of a flying bat. Despite the strange
outfitting of the car, everything mechanically was perfectly legal.
On August 1st of last year, James was driving in a mountainous
area of Colorado, coming down a winding road from the Royal
Gorge, the world’s highest suspension bridge. At 8:15 p.m., around
dusk, James approached a broad, sweeping curve in the twolane road. A witness later stated that James appeared to be
traveling below the 35-MPH speed limit. As he entered the curve,
suddenly an owl swooped down from a nearby tree, took apparent
aim at the vehicle, and crashed into the windshield. The glass
shattered, according to James, obstructing his view. In addition,
James jerked the steering wheel to the left, heading into the
oncoming traffic lane. Unfortunately, at the same time, a sixtyfive-year-old woman named Louise Taggart was driving up the
road in the opposite direction as James. A witness stated that
Louise appeared to freeze, because if she had simply pulled five
feet to the right, the accident would have been avoided. Sadly,
the cars hit head-on, and Louise was killed instantly. There are
two possible legal actions that can commence out of the above
fact situation. Following is a breakdown of the process for both
civil and criminal Court actions.
Part One: Introduction to the Law
55C
Tastes cannot be controuled by law.
-Thomas Jefferson, “Notes on Coinage,” 1784
§
4.2 CIVIL LIABILITY
Louise’s estate has decided to sue James in civil
Court. The estate will try to convince the court that
James is liable for Louise’s death and should pay
damages.
The attorneys had considered
recommending that the windshield manufacturer be
sued as well under the doctrine of joint and several
liability, but decided against it.
Estate
All the property left by someone who has died.
Civil Law
A violation of civil law does not directly harm the
community. The person harmed sues the violator.
Court
May refer to the tribunal or forum where the trial
occurs, as well as to the judge him or herself.
Liable
Legally responsible.
Legal Junk Food
On Sept. 7, 1971, Hugh
McNatt, of Miami, donated
$800 to the Allapattah
Baptist Church
after
hearing Pastor Donald
Manuel
promise
that
“blessings, benefits, and
rewards” would come to
anyone who tithed 10% of
his or her wealth to the
church. Three years passed
without any blessings,
benefits, or rewards, so
McNatt, an unemployed
electrical worker, sued the
church. Before the case
could come to trial, a Texas
businessman named Alton
S. Newell read about
McNatt’s predicament and
sent him a check for $800,
whereupon McNatt agreed to
drop the suit.
56
Damages
An amount of money to pay a person for injury or
economic loss.
Doctrine
A legal concept generally accepted by most courts
which, although it is often not law, offers guidance
to the court. Legislatures will frequently codify, a
popular doctrine. Codify means for the legislature
to make into law.
Joint and Several Liability
When multiple Defendants may be found liable as
a group (jointly) or separately (several).
James retained an attorney, who would appear in
Court as the attorney of record in the case. The
venue had not yet been determined, but since Louise
Essential Skills for Paralegals: Volume I
The century is advanced, but every individual begins afresh.
-Johann Wolfgang von Goethe, 1749-1834
was from a different state, the attorney was
concerned that the case would be moved into federal
Court due to diversity of citizenship, but it turned
out that both parties wanted the case in state Court.
Retainer
An amount of money paid to an attorney to secure
his or her services. Also refers to the contract
between the attorney and the client. When an
attorney has been “retained,” it means he or she is
now working in a representative capacity on behalf
of the client.
Appearance
When an attorney acts on behalf of a client in
court. It may be through a personal appearance in
front of the judge, or by filing a document with the
court on behalf of the client, such as a Complaint
or Motion.
Attorney of Record
Once an attorney has entered an appearance,
she or he is the attorney of record in the case.
Venue
The place of trial.
Diversity of Citizenship
When a federal court hears a case based upon the
fact that the parties are from different states, and
that the amount of money exceeds a minimum set
by federal statute, which is currently $75,000.
The Plaintiff’s attorney wanted to make sure the
statute of limitations did not run out on the case, so
the summons and complaint were prepared by the
paralegal. The attorney checked that the Complaint
had clearly set forth the cause of action in the case,
and that based upon the information and belief of
the Plaintiff, the Defendant was at fault. In addition,
the ad damnum clause stated the specific damages
being requested. There were no other parties, such
as co-defendants in the case since the allegations
Part One: Introduction to the Law
57C
The Constitution does not explicitly mention any right of privacy. In a line of decisions,
however ... the Court has recognized that a right of personal privacy, or a guarantee of certain
areas or zones of privacy, does exist under the Constitution.
-Harry A. Blackmun, Roe v. Wade, 410 U.S. 113,152 (1973
were only against James. The attorneys for the estate
also demanded a jury trial. It was at this time that
the Summons and Complaint were filed with the Court.
Plaintiff
Party who initiates the action by filing a complaint.
The party claiming injury or harm.
Statute of Limitations
Most legal matters have a time limit for filing suit.
If not filed in time, the plaintiff cannot sue. The
clock generally starts to tick at the time that the
damages occurred.
Summons
Document that informs the Defendant that she or
he is being sued, and that she or he has a specific
amount of time in which to respond.
Complaint
The pleading that initiates litigation. Filed by the
Plaintiff, the complaint contains the general
allegations against the Defendant. Served with
the summons.
Parties
Individuals or groups involved in a legal action.
Cause of Action
A legally valid reason to sue. One of the required
elements of a complaint.
Information and Belief
A common legal phrase that qualifies a statement
as being a fact only to the best knowledge of the
person making the statement. Equivalent to saying,
“I’m not sure, but I think this happened...”
Defendant
The party responding to a complaint.
58
Essential Skills for Paralegals: Volume I
The good society must have its hiding places—its protected crannies for the soul. Under the pitiless
eye of safety the soul will wither. If I choose to get in my car and drive somewhere, it seems to me that
where I am coming from, and where I am going, are nobody’s business; I know of no law that requires
me to have either a purpose or a destination. If I choose to take an evening walk to see if Andromeda has
come up on schedule, I think I am entitled to look for the distant light of Almach and Mirach without
finding myself staring into the blinding beam of a police flashlight.
-Charles A. Reich, 75 Yale Law Journal 1161,1172 (1966)
Ad Damnum Clause
Element of a complaint that asks for damages.
Also called “Wherefore Clause” or “Prayer for Relief.”
Co-defendant
Multiple Defendants in a legal action.
Pleading
A document filed with the court asking the court to
take some specific legal action. A motion asks the
court to rule on a procedural matter. A pleading
states a party’s position in a legal action.
Allegation
A fact claimed by one party.
Jury trial
A jury is a group of citizens from the community
that will determine the outcome of a case. In
most cases, each party has the right to demand a
jury trial, but if both parties agree, the judge may
act in place of the jury. This is most common in
very technical cases, such as a complex contract
case.
Filed
When a document is presented to the clerk of the
court. The document, and copies, are date stamped
at the time of filing.
The paralegal arranged for Service of Process, and
for that process to be personally served. The process
server signed an affidavit, swearing that the
documents had been served. The affiant’s signature
was attested to by a notary public.
Service or served
The presenting of legal papers upon a person.
Service of process
Process is the summons and complaint. Service of
process is the delivery of the Summons and
Complaint upon the Defendant in a court action.
Part One: Introduction to the Law
59C
Service is usually served in person. However, service
may, in some circumstances, be made by mail, by
publishing a notice in a newspaper, or by serving a
company. This is done by serving the registered
agent.
Personal service
Service of legal papers upon an individual as
opposed to a business or registered agent.
Process Server
A person who serves legal documents. Must be at
least 18 years of age and not a party to the action.
Affidavit
A written statement of fact sworn to under oath.
Affiant
One who signs an affidavit.
Attest
To swear.
Notary public
A person authorized to administer the oath, and to
verify that an individual signs a legal document.
Legal Junk Food
Twenty-five year old Marshall
Cummings, Jr., of Tulsa, Okla.,
was charged with attempted
robbery in connection with a
purse snatching at a shopping
center on Oct. 14, 1976.
During the trial the following
January, Cummings chose to
act as his own attorney. While
cross-examining the victim,
Cummings asked, “Did you get
a good look at my face when I
took your purse?” Cummings
later decided to turn over his
defense to a public defender,
but it was too late. He was
convicted and sentenced to 10
years in prison.
60
The Plaintiff chose to file the case in the Court where
the accident occurred, however, there were at least
three Courts that could have had jurisdiction. For
instance, the Court in the county and state where
Louise lived could have heard the case through in
personam jurisdiction, as could the Court where the
Defendant lived. The Court in the county where the
accident occurred was able to hear the matter through
in rem jurisdiction. In addition, the Plaintiff became
aware that the Defendant, James, had inherited a
cabin and 30 acres in the mountains of Colorado.
The attorneys were concerned that James would try
to transfer the title, or sell the property, before the
trial would take place. So they decided to file a lis
pendens in the county where the property was
located. This way, if the trial was successful, the
Essential Skills for Paralegals: Volume I
Plaintiff could petition that Court to take possession
of the property, and that Court would have the power
to do so under quasi in rem jurisdiction. The Plaintiff
could not file a lien at this point, since in order to file
a lien, a judgment is ordinarily required.
Jurisdiction
The power of the court to hear and decide a case.
In Personam Jurisdiction
Jurisdiction over a person.
In Rem Jurisdiction
Jurisdiction over the controversy, often property.
Quasi in Rem Jurisdiction
Jurisdiction over property, even though the property
is not the controversy.
Lis Pendens
Attachment to the title of a piece of property
notifying any potential purchasers that the property
is the subject of litigation.
Lien
Attachment to the title of a piece of property
preventing it’s sale until a previous financial
obligation has been paid.
The Rules of Court stated that James had 20 days to
answer the Complaint. But one problem with the
allegations in the Complaint was that they did not
explain the entire situation. Within the Answer, the
attorneys for James listed “Act of Nature” as an
affirmative defense, since he had no control over
the actions of the owl. In addition, the Defense
attorneys prepared a Counterclaim, alleging that not
only had the Plaintiff contributed to her own damages,
but she had actually damaged James by not moving
out of harm’s way. Also, the Defense decided to file
a Cross-claim in the form of a Third Party Complaint
alleging that the windshield manufacturer was partly
liable for the defective windshield.
Legal Junk Food
Clive Bunyan ran into a
store in Cayiton, near
Scarborough, England, and
forced the shop assistant to
give him £157 from the till.
Then he made his getaway
on his motorbike. To hide
his identity, Bunyan had
worn his full-face crash
helmet as a mask. It was a
smooth and successful
heist, except for one detail.
He had forgotten that
across his helmet, in inch1 high letters, were the
words, “Clive BunyanDriver.”
Bunyan was
arrested and ordered to pay
for his crime by doing 200
hours of community service.
Part One: Introduction to the Law
61C
The best of prophet of the future is the past.
George Noel Gordon, Lord Byron, 1788-1824
Defendant
A party responding to a complaint. The party who
is alleged to have harmed or injured the plaintiff.
Rules of Court
Laws that govern procedural mechanics of trials.
Answer
The pleading filed by the Defendant that responds
to the allegations contained in the complaint.
Affirmative Defense
An admission that a specific act did occur, but argues
that the fault lies somewhere else.
Counterclaim
A claim by the Defendant against the Plaintiff.
Sometimes the only determining factor as to
whether a claim is an affirmative defense or a
counterclaim is whether the Defendant is alleging
damages. If that is the case, it becomes a
counterclaim. A counterclaim is, in essence, the
Defendant’s complaint against the Plaintiff.
Cross-claim
A claim by one Defendant against a Co-Defendant.
The most common form of cross-claim is the third
party complaint.
Reply
Plaintiff’s response to Defendant’s counterclaim.
The Defendant’s attorneys made sure to file the
Answer within the 20 day period to avoid a default
judgment. They considered filing a Motion to
Dismiss, but decided such a motion would have more
effect if utilized once all the facts were established.
Default Judgment
A judgment entered by the court in favor of the
Plaintiff, based upon the fact that the Defendant
failed to respond in a timely fashion.
62
Essential Skills for Paralegals: Volume I
If the defendants were at fault in leaving an uncovered hole in the sidewalk of a public
street, the intoxication of the plaintiff cannot excuse such gross negligence. A drunken
man is as much entitled to a safe street, as a sober one, and much more in need of it.
-Solomon Heydenfeldt, Robinson v. Pioche, Bayerque & Co., 5 Cal. 460, 461 (1855)
Motion
A request that the court take a specific procedural
step, similar to pleadings. Pleadings are generally
those documents that state specific legal positions
as to the legal matter before the court, while motions
are procedural in nature, such as a Motion to Extend
Time To Respond.
During the pre-trial stage of litigation, the parties
exchanged discovery requests. Each discovery request
had a Certificate of Mailing attached to record the date
the documents were sent. The Defense contested two
of the Interrogatories. A hearing was set to settle the
matter. All discovery had to be completed 45 days prior
to trial in the jurisdiction where this case was being
heard. After hearing arguments from both sides, the
Court issued an order stating that the questions did not
have to be answered because the questions involved
privileged information.
Litigation
A law suit. The process of asking a court of law to
decide the outcome of a dispute.
Contest
To challenge.
Discovery
The methods whereby one party obtains relevant
information on a case from the other party. The Legal Junk Food
method which attempts to even the playing field
COURT
between parties by exposing all relevant facts upon THE
Were you ever in the service?
which the court will ultimately base its decision. JUROR
Discovery is between the parties and does not directly Yes, the Navy.
involve the court, although the Certificate of Mailing THE COURT
for each document is often filed. Methods of discovery How long?
JUROR
include:
29 days.
Interrogatories
Written questions to the opposing party that must
be answered under oath.
THE COURT
Without going into detail, why
were you discharged?
JUROR
They found out I was allergic
to wool and salt water.
Part One: Introduction to the Law
63C
Example: Describe the events leading to the
accident.
Request for Admissions
Written statements that the opposing party must
admit or deny under oath. Failure to respond within
a specified period of time (in most cases it is 30
days) means that the statements will be deemed
admitted.
Example: Admit or deny you had been drinking
alcohol shortly before the accident.
Request for Production
This is a request that documents be provided for
the purpose of inspection. Also referred as Request
for Production of Documents.
Example: Please produce any and all receipts for
Acme Dry Cleaning between July 1 and July 14,
1991.
Legal Junk Food
In 1978 convicted murderer
Ralph E. Dodson claimed that
his
sentence
of
life
imprisonment in an all male
prison was cruel and unusual
punishment because it
imposed upon him a lifetime
of celibacy. He requested
transfer to a women’s prison
instead.
The
Indiana
Supreme Court rejected
Dodson’s appeal on the
grounds that he had forfeited
his right “to pursue his
amorous pleasures as if he
were a free man” when he
was convicted of first-degree
murder. Three years later,
Dodson was charged with
murdering a fellow prisoner.
64
Request for Mental or Physical Examination
Request that the other party (usually the Plaintiff)
be subjected to a mental or physical examination.
This is the one form of discovery that may require
court approval so it cannot be used to intimidate.
Depositions
Oral questions which must be answered under oath.
Depositions take place out of court, and most often
in an attorney’s office with a court reporter
transcribing the testimony. A court reporter is a
person trained to use a transcribing machine to
take testimony in court or at depositions. Attorneys
from both sides must be present and both will have
the opportunity to ask questions. Depositions can
take place for the purpose of questioning the
opposing party or for the purpose of questioning
witnesses. Video taped and audio taped depositions
are sometimes taken.
Essential Skills for Paralegals: Volume I
Certificate of Mailing
When a document is filed with the court, or when
discovery is sent to a party, a Certificate of Mailing is
usually attached. It attests to the fact that a true
and correct copy of that document was sent to all
parties involved in the litigation. The certificate should
be signed by the person who places it in the mail,
unless the state requires an attorney signature. This
is often replaced with a Receipt of Copy (ROC).
Order
An official command of the court, usually demanding
that one or both of the parties perform an act.
Hearing
A proceeding in Court, where the Judge and both parties
are present.
Privilege
The right to refuse to testify, or to prevent someone
else from testifying.
About a month before trial, the Plaintiff requested an ex
parte hearing. The Plaintiff’s attorney claimed to have
information that James was going to leave the country.
However, the information was so sketchy that the Judge
held it’s credibility was in doubt. In addition, the Third
Party Defendant filed a Motion to Dismiss the Third
Party Complaint brought against the windshield
manufacturer, with a trial brief in support of the motion.
The Plaintiff also filed a Motion for Summary Judgment
with a brief in support of the Motion. The Judge ruled
that the case against the third party should be dismissed,
but denied the Summary Judgment motion.
Ex Parte Hearing
A hearing where only one party is present, such as a
hearing on a motion for a restraining order. Ex Parte
hearings are not typical.
Part One: Introduction to the Law
65C
Nearly all men can stand adversity, but if you want to test a man’s
character, give him power.
-Abraham Lincoln, 1809-1865
Third Party Defendant
The party against whom the third party complaint
was filed. The Defendant in the original complaint
becomes the “Third Party Plaintiff.”
Motion to Dismiss
Asking the court to end a case without going to
trial.
Dismissal with prejudice
When a case is dismissed, and may not be
brought again since the Court has made up its
mind about the case.
Legal Junk Food
The case of Gloria Sykes
caused a sensation in San
Francisco throughout the
month of April, 1970. A
devout Lutheran and college
graduate
from Dearborn
Heights, Mich., the 23-yearold Sykes had been in San
Francisco only two weeks
when, in September, 1969,
she was involved in a cable
car accident. The Hyde Street
cable car lost its grip and
plunged backward, throwing
Sykes against a pole. She
suffered two black eyes and
several bruises, but worst of
all, claimed her lawyer, she
was transformed into a
nymphomaniac.
Although
she had sex back in Michigan,
she became insatiable after
the accident and once
engaged
in
sexual
intercourse 50 times in five
days. This inconvenience
caused her to sue the
Municipal
Railway
for
$500,000 for physical and
emotional injuries. The jury
of eight women and four men
was basically sympathetic
and awarded Sykes a
judgment for $50,000.
66
Dismissal without prejudice
When a case is dismissed, and can be filed again
since the Court has not made up it’s mind about
the matter.
Trial Brief
Also called a Trial Memorandum or Points and
Authorities. This document is filed with the court
and argues a legal issue, relying on law to support
the party’s position. Often filed in support of a
motion, it attempts to convince the reader and
only argues points favorable to the client.
Motion for Summary Judgment
A pre-trial motion asking that the court determine
the outcome of the case based upon the pleadings
and motions rather than going to trial with a jury.
The argument is that there are no material facts in
dispute, only law, and since the jury is the trier of
fact, there is no need for a jury or trial. A Motion for
Summary Judgment may also refer to a motion to
limit the issues that will be dealt with at trial. A
Partial Summary Judgment determines the outcome
of some, but not all, of the issues before the court.
Had this case been heard in federal court, a Magistrate
would most likely have heard any discovery disputes.
In this case, however, the matter remained in the
state courts. During the Pre-trial Conference, the
Essential Skills for Paralegals: Volume I
Throughout history the world has been laid waste to ensure the triumph
of conceptions that are now as dead as the men that died for them.
-Henry deMontheriant, !896-1972
parties were able to stipulate to several matters,
but were unable to reach a settlement agreement.
The matter would have to be determined by the jury,
considering all the evidence that was deemed
admissible, to answer the issues before it.
Magistrate
A judicial officer that may preside over hearings.
The magistrate does not have all the powers that
a Judge possesses, and ordinarily deals with
procedural matters.
Pre-trial Conference
A meeting between the court and the parties for
procedural matters and used to promote
settlement.
Settlement
An agreement to end the litigation for an agreed
upon amount of money, or some other
consideration.
Stipulation
Agreed to. A fact that will not be disputed at trial.
At Issue or In Issue
A legal question to be answered by the court.
Evidence
That which tends to establish or disprove a fact.
Direct Evidence
Evidence (from personal observation) that tends
to establish a fact without the need of an
inference. Example: A witness who sees a gun
fired can give direct testimony as to a shooting.
Circumstantial Evidence
Evidence of one fact which requires an inference
to establish another fact. Example: A witness
who hears a shot, turns around and sees a man
holding a gun can give circumstantial evidence
as to a shooting.
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67C
The primary duty of a lawyer engaged in prosecution is not to convict, but to
see that justice is done.
-Canons of Professional Ethics Canon 5 (1908)
Oral Evidence
Evidence given verbally. Also called testimonial
evidence.
Physical Evidence
Evidence which can be touched. Also called
tangible or demonstrative evidence.
Admissible
Means that the evidence will be allowed to be
considered by the jury. Does not mean believable.
The jury will be allowed to believe or not believe
the evidence.
After checking the court’s docket, the matter was
set for trial. The jury was eventually chosen from
the jury panel. The attorneys for both sides are
allowed to ask written questions of prospective jurors,
as well as to conduct voir dire. The attorney for the
Plaintiff used one challenge for cause because a
panel member was a police officer, and used three
peremptory challenges. The Bailiff swore in the
jurors. Two alternate jurors were also sworn in.
Set for Trial
To set a date for trial that the attorneys, parties,
and court agree upon.
Docket
The court’s official calendar for trials and hearings
occurring in that courtroom.
Bailiff
Court employee who keeps order in the Courtroom.
Jury
A group of citizens who will be called upon to hear
the evidence and render a verdict.
Jury Panel
The group from which the jury will be selected.
Voir Dire (for the jury)
To question potential prospective jurors.
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Essential Skills for Paralegals: Volume I
A river is more than an amenity, it is a treasure. It offers a necessity of life that
must be rationed among those who have power over it.
-Oliver Wendell Holmes, Jr., New Jersey v. New York, 283 U.S. 336 (1931)
Alternate Juror
A person who sits to hear the entire case with the
jury, but who will not deliberate or vote on a verdict
unless one of the jurors is dismissed. In civil cases
in many jurisdictions, there are no alternates.
Instead, the parties and judge agree on a number
of original jurors, and how many may be dismissed.
Challenge for Cause
A manner in which to dismiss a juror for good cause
shown. Challenges for cause are unlimited.
Peremptory Challenge
A manner in which to dismiss a juror for which no
reason has to be given. These challenges are limited
in number, commonly three or six.
Each attorney made an opening statement, during
which they are not allowed to argue. Instead, they
are expected to set forth the facts they intend to
prove during the trial. The Defense attorney, in his
opening statement, reminded the jury that the burden
of proof was on the Plaintiff, and that the Plaintiff
was required to prove their case by a preponderance
of the evidence. Prior to calling his first witness, the
Plaintiff’s attorney asked that the Rule on Witnesses
be applied. The three people scheduled to testify
were then led out of the courtroom. The Plaintiff made
sure that all witnesses he would call had been
subpoenaed.
Opening Statement
Opening presentations by the attorneys that will
lay the facts they intend to prove during the trial.
Burden of Proof
The degree to which something must be proved at
trial. The party making an allegation or claim
generally bears the burden of proof.
Legal Junk Food
When Thomas Schimmel of
Tawas City, Mich., went home
from work for lunch on the
afternoon of Nov. 1, 1978, he
was surprised to discover that
someone had entered his
home, eaten a bowl of cereal and
some chicken, and left. A
sheriffs deputy was called and
a report was filed, after which
Mr. Schimmel went back to
work. Returning home at 6:30
P.M., he immediately fell asleep
on the couch and didn’t awaken
until 11:45 P.M. He then went
to his bedroom, where he
discovered that the thief had
not only returned, but was
asleep in Mr. Schimmel’s bed.
Schimmel called the police, who
woke the burglar and charged
him with breaking and entering.
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69C
We are rapidly entering the age of no privacy, where everyone is open to
surveillance at all times; where there are no secrets from government.
William 0. Douglas, Osborn v. U.S. 385 U.S. 323, 341(1966) (dissenting)
Preponderance of the Evidence
The burden of proof in civil cases means that it is
more likely than not that a fact is as a party alleges
it to be. The burden of proof in criminal matters is
beyond a reasonable doubt, a higher standard.
Rule on Witnesses
A rule that states that a witness in a case may not
be in the courtroom during the testimony of other
witnesses. Mostly used in criminal cases, but may
be used in civil cases, at the judge’s discretion.
Subpoena
The document issued under authority of the court
to compel the appearance of a witness.
Subpoena Duces Tecum
A document issued under authority of the Court to
compel the appearance of a witness, and for the
witness to provide specific documents.
Early on during the trial, the Plaintiff called Louise’s
widowed husband to the stand, but the Defense
objected. At a bench conference, the Defense told
the Judge that the only purpose of the witness would
be to elicit sympathy and anger, and that the
prejudicial effect would outweigh the probative
value of the testimony. Even if the Defense was sure
the objection would be overruled, the attorney needed
to preserve his right to appeal the issue later. By
making the objections, she or he preserved the
record to later appeal.
Objection
A formal challenge, regarding evidence or a
question that has been asked by the other side.
Bench Conference
A discussion between the Judge and attorneys, in
most instances, at the Judge’s bench, so the jury
cannot hear what is being said.
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Essential Skills for Paralegals: Volume I
A court is an assembly of noble and distinguished beggars.
Charles Maurice, Prince de Falleyrand-Perigord, 1754—1838
Prejudicial
The tendency to cause bias, even where no bias
existed previously.
Probative Value
The value of pursuing an investigative or probing
line of questioning.
Preserving the Record
An attorney making statements or repeating a
previously overruled motion for the purpose of
protecting any right to appeal at a later point.
Preserving the Right of Appeal
If a matter is not objected to at trial, it may not
be appealed at a later point. Attorneys are careful
to object to any matter that may be a point of
appeal should the client lose.
When the Plaintiff called Louise’s four-year-old
granddaughter to the stand, the Defendant objected
again. This time the court sustained the objection.
The court ruled that the little girl was not competent
to testify. As the other witnesses testified, each
attorney conducted their examinations on each
witness. When the Plaintiff’s attorney calls a witness,
he conducts direct examination. The Defendant’s
attorney then cross-examined the witness. If the
Plaintiff’s attorney wanted to clear up testimony on
cross, he would conduct re-direct examination. This
went on for all the witnesses called by the Plaintiff.
The goal was to establish that the proximate cause
of the death of Louise was the negligence of the
Defendant.
Sustain
To affirm an objection.
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71C
Power does not corrupt men; fools, however, if they get into a position of
power, corrupt power.
-George Bernard Shaw
Competency
Legal capacity to testify. The elements of competency
are:
• Understands the obligation to tell the truth
• Is knowledgeable as to the topic of his or her
testimony
• Has the ability to communicate
Examination
Questions directed at a witness who is under oath in
court or at a deposition.
Direct Examination
Questioning the witness first. The party that calls
the witness to the stand conducts the direct
examination.
Cross Examination
After direct examination, the other party may cross
examine the witness, but must limit herself or
himself to the topics brought up under the direct
questioning (within the “scope”).
Re-direct Examination
The party conducting direct examination conducts
the re-direct examination to clarify matters
brought up during cross. The party conducting redirect cannot introduce a new line of questioning,
but must limit him or herself to matters discussed
during cross. (While some courts allow re-cross
examination, it is not typical.)
Re-cross Examination
The party conducting cross-examination conducts
the re-cross examination, but is limited to matters
brought up during re-direct.
Proximate Cause
The event or point at which a series of incidents
begin that ultimately result in an event with damages
occurring.
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Essential Skills for Paralegals: Volume I
FORMA PAUPERIS (Latin). In the character of a poor person—a method by which a
litigant without money for lawyers is considerately permitted to lose his case.
Ambrose Bierce, The Devil’s Dictionary 196
Negligence
Establishment of a duty, followed by a breach of
that duty which resulted in damages. In order to
be actionable, the negligence must have been the
proximate cause of the damages. Negligence
generally means an act is accidental, not
intentional.
At one point during the trial, a witness was called by
the Plaintiff who testified that James had a drinking
problem. The judge excused the jury and heard
arguments. The Defense argued that no grounds
existed for such a line of questioning since a breath
test at the scene of the accident indicated no alcohol
in the Defendant’s system, and that his drinking habits
were not relevant to the matter before the court.
The court agreed, and prohibited the testimony. When
the jury returned, the judge instructed the jury to
disregard the testimony regarding James’ drinking
habits, and had the statement stricken from the
record.
Excuse the Jury
Instructs the jury to leave the courtroom.
Grounds
A reason or reasons.
Relevant
Tending to prove or disprove a fact in issue.
Strike From The Record
To have certain testimony removed from the record
of the trial. Usually accompanied by an admonition
to the jury that they are not to consider the
testimony they just heard when deliberating.
At one point, the Plaintiff’s attorney introduced into
evidence the rubber bat that was hanging from the
rear view mirror, having it labeled by the court clerk
as an exhibit. The Plaintiff presented evidence that
Part One: Introduction to the Law
73C
Unanimity is almost always an indication of servitude.
-Charles de Remmat, 1797-1875
established that every state has laws against hanging
anything from the rear view mirror, because it
constitutes an obstruction of view. Despite these laws,
the Defendant attached the bat with the elastic string,
and this act led to the accident since the bat, looking
very real, attracted the apparently hungry owl. Thus,
the Defendant should be found liable.
Clerk of Court
The person or persons responsible for the Court
files and exhibits.
Exhibit
A physical item presented to support an argument.
Introduction of Evidence
Attorneys must “move” for a piece of evidence to
be admitted into evidence. If granted, the evidence
will be assigned a number or letter and labeled.
After the Plaintiff’s attorney called his last witness,
the Plaintiff rested. After the jury had been excused,
the Defense moved for a directed verdict, arguing
that the Plaintiff had not established a prima facie
case during it’s presentation. The Judge adjourned
for the day, taking the motion under advisement.
Resting a Case
When a party is finished presenting evidence, that
party rests.
Move
To present a verbal motion to the Court.
Adjourn
To halt the trial temporarily, but not to end the
trial.
Prima Facie Case
A case that is sufficient on its face. It means that
if all facts alleged by the Plaintiff are eventually
proven true at trial, the Plaintiff deserves to be
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Essential Skills for Paralegals: Volume I
The crux of that doctrine is that a search is a search by a federal official if he had a
hand in it; it is not a search by a federal official if evidence secured by state
authorities is turned over to the federal authorities on a silver platter.
-Felix Frankfurter, Lustig v. United Stales, 338 U.S. 74, 78-79 (1949)
awarded damages. A prima facie case must exist
at all stages of the proceedings, from the filing of
the complaint all the way through the trial. If, at
any point during litigation, a party can establish
that a prima facie case does not exist, the case
should be dismissed.
Motion for Directed Verdict
When the court is asked to decide the outcome of
the case during the trial, due to the fact that the
Plaintiff has failed to establish a prima facie case.
Take Under Advisement
When the court delays a ruling on a motion so that
the motion may be considered.
The next morning, the Judge ruled against the Motion
for Directed Verdict, and the Defense began presenting
it’s case. One of the witnesses called by the Defense
was an expert on animal diet from the Cheyenne
Mountain Zoo in Colorado Springs. The Defense wanted
this witness qualified as an expert witness by the
Court. In response, the Plaintiff’s attorney conducted
a brief voir dire of the witness. Afterwards, the
Plaintiff stipulated to the witness’s qualifications.
The witness testified that owls don’t eat bats. They
do, however, eat snakes.
Qualify
To establish a witness’s expertise in a specific area.
Voir Dire (of witnesses)
To question a potential witness to determine the
fitness of his or her testimony.
Expert Witness
A person who has been qualified by the Court to
have experience and knowledge in a specific area,
and will be allowed to express opinions as to that
specific area of knowledge.
Part One: Introduction to the Law
75C
After the Defense rested, both parties made closing
arguments. During his closing argument, the Defense
attorney pointed out that even though James had
indeed had the bat hanging from his rear view mirror
in violation of the law, the owl was not interested in
the bat. If anything, the owl was going after the
snake on the dashboard. And there is no law prohibiting
that. The jury was provided with jury instructions
prior to their deliberations.
Closing Argument
Addressing the jury or the court, at the end of the
trial, attempting to persuade before deliberations.
Deliberations
When a jury discusses the case in private following
the trial, the goal of which is to render a verdict.
Jury Instructions
Guidelines given to the jury as to the law to be
applied and the facts to be considered in their
deliberations. May be called a charge to the jury.
After several hours of deliberation, the jury returned
it’s verdict. The Foreperson read the result to the
courtroom. The jury found the Defendant not liable,
and the estate of Louise Taggart liable for damages
resulting from the counterclaim in the amount of five
thousand dollars. The Plaintiff’s attorneys had
discussed the possibility of a not liable verdict. They
immediately filed a Motion for Judgment NOV. On
the other hand, the Defense argued that the jury had
awarded their client damages in an insufficient
amount and therefore moved for an additur. After
hearing arguments on both sides, the Judge entered
the jury’s verdict into judgment. Within ten days,
the Plaintiff filed a Motion for a New Trial, which
was denied.
Verdict
The final conclusion of the jury.
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Essential Skills for Paralegals: Volume I
A man may have as bad a heart as he chooses, if his conduct is within the rules.
-Oliver Wendell Holmes, Jr., The Common Law 110(1881)
Foreperson (Foreman)
The person elected by the jury to lead the
deliberations and speak for the jury.
Motion for Judgment NOV (Not withstanding
the verdict)
A motion asking the court to disregard the jury’s
verdict, replacing it with a verdict of it’s own.
Judgment
The final conclusion of the court. In civil cases,
the Judge usually enters the jury’s verdict into
judgment. However, the Judge does have the power
to alter or overturn the jury’s verdict. In criminal
cases, the Judge cannot overturn a jury’s finding
of “not guilty,” but if the Court wants, it may
overturn a “guilty” verdict, in the interest of justice.
Additur
When the Judge in a case adds to the amount a
jury has awarded. Typically, the Judge will give
the party who must pay the award the choice of
increasing the award, or the judge will grant the
other side a new trial.
Remittitur
The process whereby a judge subtracts from the
amount of damages a jury has awarded. In effect,
the judge gives the party awarded damages the
choice of accepting a lesser amount or the judge
will grant the other side a new trial.
Motion for New Trial
A request that the judge order a new trial based
upon procedural errors that occurred during the
trial. A party must generally file this motion in
order to appeal in order to exhaust all available
remedies.
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77C
Ethical considerations can no more be excluded from the administration of
justice, which is the end and purpose of all civil laws, than one can exclude the
vital air from his room and live.
-John F. Dillon, The Laws and Jurisprudence of England and America (1895)
The Plaintiff decided to appeal the verdict. The Notice
of Appeal had to be filed within 30 days to avoid
waiving the right to appeal, and the court granted a
stay of the judgment, but required a bond on appeal
by the Plaintiff. Could the Plaintiff have filed a suit in
one of the other jurisdictions? No. The doctrine of
res judicata acts as a bar to retrying the case once
a verdict has been rendered.
To Bar
To prevent or stop.
Appeal
To ask the next highest court to determine whether
the trial court erred.
Stay
To delay the implementation of a court’s order.
Waive
To give up a right. A waiver may be voluntary, or
may be the result of an action, or inaction, of the
person.
Appeal as a Matter of Right
When the appellate court has no choice but to
hear the appeal. Occurs during the first appeal,
and the second appeal in death penalty cases.
Notice of Appeal
Written notification in motion form that a party
intends to appeal. Most court rules require that
the motion be filed with the trial court, the
appellate court, and any opposing parties against.
Each party has the automatic right to one appeal
to the next highest court of the trial court’s decision.
Bond on Appeal
A sum of money that is held by the court to ensure
that the funds from the award are available after
the appellate process.
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Essential Skills for Paralegals: Volume I
Every beginning is a consequence—every beginning ends something.
-Paul Valery, 1871-1945
Res Judicata
Doctrine by which a case that has been decided on
its merits may not be re-litigated.
On appeal, the Appellant is generally responsible for
the transmission of the record to the appellate court,
which should include the transcript of the proceedings.
The Appellant filed an Appellate Brief, which argued
points of error that occurred at the trial, and the
Respondent filed a Response Brief.
Appellant or Petitioner
The party initiating an appeal.
Appellee or Respondent
The party responding to an appeal.
Record
The official collection of all pleadings, exhibits,
motions, orders, and transcript of the trial.
Transcript
The word for word typed record of what occurred at
trial.
Appellate Brief
A written argument by a party covering the issues,
called “Points of Error,” on appeal.
Points of Error
The questions that are the basis for the appeal. Also
called “Issues on Appeal.”
Response Brief
A written answer to the Appellate Brief.
The Plaintiff requested permission to present oral
arguments to the appellate court, but the motion was
denied. The appellate court assigned the appeal to a
panel of Judges, as opposed to hearing the case en
banc. The panel then wrote its opinion of the matter.
Part One: Introduction to the Law
79C
The knock at the door, whether by day or by night, as a prelude to a search, without authority
of law but solely on the authority of the police, did not need the commentary of recent history
to be condemned as inconsistent with the conception of human rights enshrined in the history
and the basic constitutional documents of English-speaking peoples.
Felix Frankfurter, Wolfy. Colorado, 338 U.S. 25,28 (1949)
Oral Argument
A verbal presentation to an appellate court. The
party must request an oral argument, which is not
always granted.
En Banc
When the entire appellate level court sits to hear
and decide a case. Tends to indicate a level of
importance in the case.
Panel of justices
When a portion of the appellate level court hears a
case. Usually, a panel is made up of three judges.
Opinion
Written decision of the court.
Legal Junk Food
COUNSEL
Can you participate in an
endeavor in which the
ultimate result might be death
by lethal injection?
JUROR
They do that up in Huntsville,
don’t they? Yeah, I guess I
could do it if it was on a
weekend.
COUNSEL
And [next juror] you, sir?
JUROR
Yes, I think it’s too quick.
COUNSEL
And you, sir?
JUROR
It should be left up to the
victim’s families rather than
the courts.
COUNSEL
You know that my client is
charged with robbing a SevenEleven, tying up two
employees and shooting them
both in the head as he fled.
Now if the state offers you
evidence to prove these facts,
would youJUROR
He’s gone!
80
Majority Opinion
The strongest form of opinion. When more than
fifty-percent of the court agrees on a decision. A
majority opinion is law until it is superseded or
overturned.
Affirm When the appellate court agrees
with the decision of the trial court. Generally,
an appellate court may choose to uphold, or
affirm, the trial court’s decision if the
appellate court agrees with the trial court’s
reasoning.
Reverse When the appellate court
disagrees with the decision of the trial court.
Modify When the appellate court alters the
decision of the trial court.
Remand When the appellate court sends
the case back to the trial court for further
deliberation.
Essential Skills for Paralegals: Volume I
Concurring Opinion
Opinion of one or more judges that agrees with
the results of the majority, but arrives at that
result for differing reasons.
Dissenting Opinion
Opinion which disagrees with the majority.
The appellate court upheld the trial court’s decision.
The Appellant petitioned the court for a rehearing,
but this petition was denied. The attorney for the
Appellant informed the client that the estate could
ask the next highest court for permission to appeal,
but that the appeal was no longer a matter of right.
Instead a Petition for a Writ of Certiorari could be
filed. But the Appellant decided not to appeal further.
Petition
To make a formal request to the court. Also, some
states refer to complaints as Petitions.
Rehearing
A second chance to present arguments to the court
on the same issues.
Petition for a Writ of Certiorari
The vehicle by which the case is taken from the
court of Appeals (state or federal) to the Supreme
Court (state or federal). Also the means by which
a case is taken from a state supreme court to the
U.S. Supreme Court. The writ is issued by the
higher court. If the higher court approves the
petition, the higher court will review the case. If
the higher court denies the petition, the lower
court decision stands.
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81C
COURT FOOL, n. The plaintiff.
-Ambrose Bierce, The Devil’s Dictionary 57 (1911)
Exercise 4.2a
Match the following terms.
____ An official command of the court.
____ A proceeding, usually in court, where the judge and both parties are present.
____ The right to refuse to testify, or to prevent someone else from testifying.
____ A hearing where only one party is present, which is not typical.
____ A judicial officer that may preside over hearings, but who is not a judge.
____ A meeting between the court and the parties for procedural matters, often used
by thecourt to promote settlement.
____ An agreement to end the litigation for an agreed upon amount of money.
____ Agreed to. A fact that will not be disputed at trial.
____ The degree to which something must be proved at trial.
____ A rule that states that a witness in a case may not be in the courtroom during
the testimony of other witnesses.
____ A document issued to compel the appearance of a witness.
____ Burden of proof in civil cases.
____ Attorney.
____ To attack or discredit a witness’s testimony. The general rule is that an
attorney is not allowed to impeach his or her own witness.
____ A judgment against your client.
____ To present proof of a witness’s expertise in a specific area.
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Essential Skills for Paralegals: Volume I
The world is ruled by force, not by opinion; but opinion uses force.
-Blaise Pascal, f623-1662
a. Ex Parte Hearing
b. Stipulation
c. Magistrate
Legal Junk Food
d. Settlement
e. Hearing
f. Privilege
g. Pre-trial Conference
h. Order
i. Burden of proof
j. Preponderance of the evidence
k. Rule on witnesses
l. Counsel
m. Subpoena
n. Impeach
o. Adverse Judgment
p. Qualify
A criminal defense lawyer is
making his closing argument
to the jury. His client is accused of murder, but the body
of the victim has never been
found. He dramatically withdraws his pocket watch and
announces to the jury, “Ladies
and gentlemen, I have some
astounding news. We have
found the supposed victim of
this murder alive and well,
and, in exactly one minute, he
will walk through that door
into this courtroom.” A hushed
silence falls over the courtroom, as everyone waits for
the momentous entry. Nothing happens. The lawyer then
says, “The mere fact that you
were watching that door, expecting the victim to walk into
this courtroom, suggests that
you have a reasonable doubt
whether a murder was committed.” Pleased with the impact of the stunt, he then sits
down to await an acquittal.
The jury is instructed, files out
and files back in 10 minutes
later with a verdict finding the
defendant guilty. Following the
proceedings, the astounded
lawyer chases after the jury
foreman to find out what went
wrong. “How could you convict?” he asks. “You were all
watching the door!” The foreman explained, “Most of us
were watching the door. But
one of us was watching the defendant, and he wasn’t watching the door.”
Part One: Introduction to the Law
83C
An army of sheep led by a lion would defeat an army of lions led by a sheep.
-Arab proverb
§
4.3 CRIMINAL LIABILITY
Even though the civil case was decided in favor of the
Defendant, the state chose to bring criminal charges for
reckless driving and reckless endangerment. The
Prosecution had a warrant issued for the Defendant’s
arrest.
Criminal Law
A violation of criminal law is viewed as harming the
community. Therefore, the state acts against the violator.
Penalties for violating criminal law include fines and
imprisonment. One can be sued civilly and charged
criminally.
Government or State
In this case, it means the Prosecution.
Prosecution
The bringing of criminal charges against a Defendant, or
the party presenting the government’s case at a criminal
trial.
Warrant
An order from a judicial officer or the court authorizing an
act, such as an arrest, search of property, or seizure of
property.
At the initial appearance, the Defendant was advised that
one of the charges was a misdemeanor, and one was a
felony. He was provided with assigned counsel, and
although the state had asked for bail, he was released on
his own personal recognizance.
Initial Appearance
The first court appearance by a Defendant to a criminal
charge during which the court informs him or her of the
charges, decides whether bail is appropriate, and sets
the date of the next court proceeding.
Misdemeanor
A crime punishable by a sentence of less than a year.
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Essential Skills for Paralegals: Volume I
Felony
A crime punishable by a sentence of one year or
more in prison.
Bail
Money or property deposited intended to ensure with
the court the appearance of the Defendant at trial,
which allows the Defendant to remain free until the
verdict is reached.
Bail Bond
A written promise to pay the full bail amount to
the Court if the Defendant fails to appear when
required.
Personal Recognizance
A Defendant who is released without being required
to post bail, on the promise the she or he will appear
in court at designated times.
Assigned Counsel
An attorney who has been ordered to represent a
Defendant, usually due to the fact that the Defendant
cannot afford an attorney.
At a meeting in the Prosecutor’s office with the Defense
counsel, the possibility was brought up that the state
should issue a determination of nolle prosequi, or
accept a nolo contendere plea in return for no jail
time. But, the District Attorney insisted that James
plead guilty to at least one of the charges. The Defense
attorney could not agree to this plea bargain, so the
Prosecutor decided to pursue the case.
Counsel
Attorney.
Nolle Prosequi
When the Prosecutor decides not to prosecute, even
though she or he believes there is sufficient evidence
to do so.
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85C
District Attorney
Prosecutor for the government.
Plead
To declare a Defendant’s position in a criminal trial. Usually
“guilty” or “not guilty.”
Plea bargain
When the Defendant in a criminal case agrees to plead
guilty, usually to a lesser charge, in return for a reduced
sentence.
Nolo Contendere (or No Contest)
When a Defendant decides not to contest the charges,
but does not admit any guilt. The Defendant may be
sentenced as though she or he had plead guilty.
At the preliminary hearing, the Court determined that there
was sufficient probable cause to have the case bound
over to the Grand Jury for consideration. The Grand Jury,
in turn, returned an indictment. This was not particularly
surprising since the District Attorney ran the Grand Jury. At
the subsequent arraignment, the Defendant pled not guilty.
Preliminary Hearing
A hearing where the state must produce sufficient evidence
to establish that there is probable cause to believe that
a crime has been committed by the Defendant.
Probable Cause
A reasonable basis to believe that a crime has been
committed.
Bound Over
Submitted to. Sent.
Grand Jury
An investigatory panel that determines whether probable
cause exists to return an indictment.
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Indictment
A formal charge by a Grand Jury alleging a criminal
act. The indictment is often contained in a document
called an Information.
The standard for conviction in a criminal trial is much
higher than in a civil trial. The jury must find the
Defendant guilty beyond a reasonable doubt. The
jury in the above case decided to acquit the Defendant.
The adverse judgment was upsetting to the
Prosecutor, but he could not appeal. In criminal
matters, the prosecution is prevented from appealing
a not guilty verdict. In addition, the government can
not re-file the same charges against the same
defendant, since to do so would constitute double
jeopardy.
Beyond a Reasonable Doubt
Degree of proof required in a criminal prosecution. It
usually requires unanimous agreement on the part of
the jury. The jury may have some doubt and still find
the person guilty, but the doubt cannot be reasonable.
If the doubt is reasonable, the verdict must be not
guilty.
Acquit
When a jury or judge finds a Defendant not guilty.
Adverse Judgment
A judgment against your client.
Double Jeopardy
In a criminal case, the state cannot retry a Defendant
on the same charges once a not guilty verdict is
rendered by a judge or jury.
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A river is more than an amenity, it is a treasure. It offers a necessity of life that must
be rationed among those who have power over it.
-Oliver Wendell Holmes, Jr., New Jersey v. New York, 283 U.S. 336, 342 (1931)
Exercise 4.3a
Match the following:
1. ___ A crime punishable by more than a year in prison
2. ___ A reasonable basis to believe a crime has been committed
3. ___ When a prosecutor decides not to proceed with a case, even
though there is sufficient evidence to do so.
4. ___ The criminal equivalent of a settlement
5. ___ An investigative tool of the prosecutor
6. ___ Burden of proof in a criminal case
7. ___ A crime punishable by less than a year in prison
8. ___ When a judge or jury finds the defendant not guilty
9. ___ When a defendant does not contest an allegation, but can be
sentenced as though she or he had pled guilty
10. ___ A court order authorizing a search, seizure, or arrest
11. ___ When a defendant states whether she or he is innocent or
guilty
a. Beyond a
reasonable doubt
b. Felony
c. Misdemeanor
d. Acquit
e. Probable Cause
f. Grand Jury
g. Warrant
h. Plead
i. Nolo contendere
j. Nolle Prosequi
k. Plea Bargain
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chapter 5
Court Structure
§ 5.1
COURT STRUCTURE TERMINOLOGY
Branches of Government
The three elements that make up both State and
Federal government structure.
Legislative Branch
The branch that creates, or enacts, the law.
At the Federal level, Congress is the highest
entity. On the state level, the State
Legislature is the highest entity.
Judicial Branch
The branch that interprets the law. The State
and Federal court systems make up the
Judicial Branch.
Executive Branch
The branch which enforces, or executes, the
law. The highest Federal entity is the
President. The highest State entity is the
Governor.
Administrative Hearings
Administrative agencies settle disputes with those
agencies through administrative hearings. For
instance, tax disputes, social security matters, and
immigration issues are often administrative matters.
Trial Court
There are two levels of courts; trial level and appellate
level. Trial level courts are where the action is initiated
and facts and evidence are presented. There is a single
judge. In most cases, either party can demand a trial
by jury.
Appeal
A request that a higher court review what a lower
court decided. Usually, the loser in the trial court
appeals to the court of appeals, and the loser in the
court of appeals then appeals to the supreme court.
A party has one automatic right of appeal to the next
highest court.
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We are rapidly entering the age of no privacy, where everyone is open to surveillance at
all times; where there are no secrets from government.
William 0. Douglas, Osborn v. United States, 385 U.S. 323, 341(1966) (dissenting)
Appellant or Petitioner
Usually, the party who loses at the trial level
initiates the appeal and is the appellant.
Appellee or Respondent
The party who wins at the trial level. The party
whom the appeal is brought against.
Federal Courts
Courts which have jurisdiction over cases involving
federal questions, cases where the United States is
a party, cases where specific statutes grant
jurisdiction, and Diversity of Citizenship cases.
United States District Court
Trial court where federal actions commence.
Every state has at least one federal District,
and many states are broken into multiple
Districts.
United States Courts of Appeal
Federal appellate court that is broken into
Federal Circuits and is, therefore, often referred
to as the Circuit Court of Appeals. A Circuit is a
collection of Districts. Thus, a Circuit Court is
responsible for appeals from a collection of
District Courts.
United States Supreme Court
The country’s highest court. Made up of nine
justices who are nominated by the President,
and confirmed by the U.S. Senate.
Appellate Level Courts
Appellate courts review trial court decisions by
reviewing the record to determine whether the trial
court erred. Appellate level courts have multiple
judges.
Stare Decisis
To stand by previous court decisions. “Let the decision
stand.” The doctrine whereby a previous court decision
will guide the court in deciding a current case unless
there is a compelling reason to hold otherwise.
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§
5.2 COURT TITLES FOR LOCAL JURISDICTIONS
Every state and federal jurisdiction is made up of trial level and appellate
level courts. However, the titles and numbers of the courts vary. There
are local trial level courts, statewide trial courts, federal trial courts. But
all of them serve the same purpose: to hear evidence, apply the law, and
reach a verdict. Local courts (such as county courts) usually hear matters
involving smaller amounts of money or minor criminal infractions.
Statewide trial courts consider more substantial suits above a minimum
set by state statute, and more serious criminal offenses.
State Courts
Most states have two appellate level courts. The first (sometimes
referred to as an intermediate appellate level court) is usually titled
Court of Appeals, such as the Colorado Court of Appeals. The upper level
appellate level court is most often called the Supreme Court, such as the
New Mexico Supreme Court. A few states refer to the highest court by
other titles, such as the N.Y. Court of Appeals (that state’s highest
court).
A few states, such as South Carolina, South Dakota, and Nevada, only
have one appellate level court, the state Supreme Court. They have no
intermediate appellate level court. So any appeal from the trial level
must proceed directly to the state Supreme Court. Since every case has
an automatic right to at least one appeal, these Supreme Courts have no
choice but to hear those appeals, placing a very heavy burden on those
tribunals.
Federal Courts
The federal trial court is always called the United States District Court.
Every state has at least one District, and many states have multiple
federal districts. For instance, because of a relatively low population,
Nevada only has one federal district, the District of Nevada (abbreviated
D. Nev.). North Carolina, however, has three federal districts. The
Eastern District of North Carolina (E.D.N.C.), the Middle District of North
Carolina (M.D.N.C.) and the Western District of North Carolina (W.D.N.C.).
There is one intermediate federal appellate court, the United States
Courts of Appeal, but it is broken into 13 Circuits. A federal Circuit is a
collection of federal Districts. For instance, the District of Colorado, the
District of New Mexico, the District of Oklahoma, the District of Utah, the
District of Kansas, and the District of Wyoming when collected become
the 10th Circuit Court of Appeals. Any appeal from those federal trial
courts must be brought to the 10th Circuit Court of Appeals, which is
located in Denver, Colorado.
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Diagram 5(a) United States Court Structure Diagram
YOUR STATE JURISDICTION
STATE COURTS
______________________
Highest State Court
U.S.
SUPREME COURT
______________________
State Court of Appeals
______________________
State Trial Court
______________________
Local Trial Court
YOUR FEDERAL
JURISDICTION
______________________
Highest Federal Court
______________________
Federal Court of Appeals
______________________
Federal Trial Court
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FEDERAL COURTS
HIGHEST STATE
APPELLATE COURT
Example:
Colorado Supreme Court
INTERMEDIATE STATE
APPELLATE COURT
Example:
Colorado Court of Appeals
U.S
COURTS OF APPEAL
Example:
9th Circuit
STATE
TRIAL COURT
Example:
Colorado District Court
LOCAL
TRIAL COURT
Example:
Colorado County Court
Essential Skills for Paralegals: Volume I
U.S.
DISTRICT COURT
Example:
Western District of N.C.
chapter 6
Law Office Ethics
§
6.1 WHAT ARE ETHICS AND SANCTIONS?
§
6.2 HOW DO THE ABA RULES OF ETHICS
APPLY TO PARALEGALS?
Ethics are standards by which members of a profession are
expected to achieve and maintain. A violation of the ethical
rules is punishable by a fine or sanctions. Sanctions can be
a fine, suspension, public reprimand, or other punishment
by the bar association.
The ABA Rules of Ethics apply only to attorneys. The ABA is
a private organization and can only sanction its members.
However, most states have adopted versions of the rules to
cover all attorneys within that jurisdiction. While paralegals
may not be punished directly for a violation of the rules, the
attorney supervising the paralegal may be punished as
though the attorney had committed the act him or herself.
Thus, all staff under the supervision of an attorney must
follow the rules below.
§
6.3 ABA RULES OF ETHICS (Paraphrased)
1. Competence
An attorney should be competent to handle a legal
matter. This means that an attorney should not take a
case in an area of law with which she or he is not familiar,
unless efforts are taken to ensure adequate
representation (such as hiring co-counsel with
experience in that area).
2. Diligence/Unwarranted Delay
An attorney is supposed to act with due diligence on
a case. A paralegal can assist an attorney by acting
promptly on assigned tasks.
3. Fees
The shortest of all ABA rules, it simply states that the
fees should be “reasonable.” Whether a fee is reasonable
varies according to the services performed, the experience
of the attorney, and the standards of the community.
4. Crime or Fraud by Attorney
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An attorney may be sanctioned if she or he engages in
conduct that is criminal or fraudulent.
5. Crime or Fraud by Client
While an attorney may represent someone who has
committed a crime or fraud, the attorney may not
counsel the client to engage in such conduct.
6. Frivolous Legal Positions
An attorney may not assert a frivolous claim or defense.
This rule would also prevent an attorney from
presenting a defense or claim she or he knows is not
true.
7. Safekeeping Property
An attorney holding money or property belonging to a
client must keep it separate from the attorney’s
holdings. And while this part of the rule is often ignored,
the attorney should not mix multiple client funds.
8. False Statements and Failure to Disclose
An attorney may not make false statements. An
attorney must also disclose relevant information and
authority, even if that information and authority is
damaging to the client.
9. Withdrawal
An attorney must ask the court for permission to
withdraw from a case.
10. Confidentiality of Information
The following extend to legal staff.
• Attorney/Client Privilege
Communication with the client must remain
confidential. The information must remain
confidential even after the death of a client.
• Attorney Work Product
Material prepared in anticipation of litigation
is not discoverable.
• Inadvertent Disclosure of Confidential
Information
An attorney must take reasonable efforts to
ensure that confidential information is not
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accidentally disclosed. Even if the disclosure
is accidental, the attorney may still be found
culpable if these efforts were not taken.
11. Conflict of Interest
• An attorney should not engage in business
transactions with a client.
• An attorney should not accept gifts from a
client.
• An attorney should not engage in sex with a
client.
• An attorney should not take a case in which
she or he has a personal bias.
• An attorney should not engage in multiple
representation (representing both sides in a
case) unless the parties agree in writing after
being informed of the risks.
• An attorney should not take a case
involving a former client who is a present
adversary.
• When switching jobs, attorneys must
ensure that she or he has no access to
information in the new firm regarding
previous representation from the old firm.
This is often called a “Chinese Wall”.
• An attorney must check each case the firm
takes for conflicts.
• The above extend to legal staff.
12.
Communication with the Other Side
An attorney may not communicate with the
client from the opposing side, unless the
opposing counsel agrees or the opposing party
is representing him or herself.
13.
Solicitation
An attorney may not solicit work from a specific
prospective client when the attorney may have
a monetary motive for doing so.
14.
Advertising
An attorney may advertise as long as the
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95C
advertisement is not misleading.
15.
Reporting Professional Misconduct
An attorney who knows another attorney is
engaging in professional misconduct must
report such conduct to the appropriate
authority.
16.
Appearance of Impropriety
An attorney is not supposed to engage in
activity that could even have the appearance
of being unethical or improper.
17.
Unauthorized Practice of Law
An attorney may not assist a non-lawyer in the
unauthorized practice of law.
18.
Paralegals, Secretaries and Other Legal Staff
An attorney may delegate virtually any duty
that the attorney could engage in to a
member of his or her staff so long as the
attorney takes responsibility for the staff’s
conduct. The only tasks that the staff
may not perform is to give legal advice or act
in a legally representative capacity.
§
6.4 LEGAL ADVICE
§
6.5 REPRESENTATION
If a paralegal expresses an opinion on a legal
issue to a client or prospective client, or
attempts to apply a law to a client’s legal
situation, he or she has most likely given legal
advice. A good rule of thumb is that any time
a paralegal is about to express an opinion about
a legal matter to a client, don’t!
A paralegal may not represent another in a court of
law. Exceptions include some small claims courts,
and a few jurisdictions that allow paralegals to enter
motions that do not anticipate opposition. Also,
some administrative agencies allow paralegals to
represent clients.
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§
6.6 THE LISTS
The first year is everything. It can define your career.
Good habits, as well as bad, are established. First
impressions are made, which are very hard to overcome.
The first year of your paralegal career is a rebirth, and
everything is fresh. Your professional life is literally a
clean slate. You have the ability to define yourself, and to
help further define the profession, by your work ethics and
abilities.
The following lists are provided as discussion points. Talk
about them with your instructor and classmates. Can you
come up with any additional keys to succeeding as a
paralegal?
§ 6.7
The 5 Keys to Succeeding in Your First
Year as a Paralegal
1.
Be the first person in the office every day
It doesn’t matter whether you just have a cup
of coffee, read a newspaper, or get a head
start on the day, but being the first person in
the office can be a great career starter. It may
not seem important, but when a paralegal is
always there when the attorneys arrive at work,
it is noticed. It is assumed that the paralegal
is very hard working and dedicated. After the
first year it is less important, but the firstyear impression is likely to last for a long time.
2.
Ask yourself, “Is what I’m doing now billable?”
If you work for a private firm, your time will
most likely be billed to a client. Every hour
you work for a client makes money for the firm.
Therefore, the more billable hours you have,
the more valuable you are to the firm. Be
aware that time is money, for you and your
attorney. When it's time to negotiate your salary
upon review, your billable hours are the most
concrete evidence of your value to the firm.
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3.
Look for work around the office if your work-load is slow
This is directly related to the point addressed
immediately above. Don’t sit and twiddle your thumbs
if you have completed your assigned tasks. If your
attorney doesn’t have more work, check with other
attorneys and paralegals to see if they need assistance.
Not only does this impress lawyers and co-workers, it
may give you experience in additional areas of law to
which you may not have been exposed. While the firm
will view your efforts as being dedicated to the firm, in
actuality you are furthering your own interests even
more.
4.
Be willing to work late and skip breaks
Your situation may dictate whether you can follow this
advice, but if you are able to work extra hours, staying
late or coming in on a weekend before a big trial, the
attorney will remember it. It is the sign of a professional
that the completion of a job is not dictated by the
clock, but when the task is finished. Another benefit to
having this attitude is that eventually you will probably
be able to come in late or leave early without being
docked. As long as the privilege is not abused, the
attorney will be much more concerned with the overall
completion of assigned tasks than whether you punched
a clock.
5.
Take responsibility for, and learn from, your mistakes
Secretaries make mistakes. Every paralegal makes
mistakes. Lawyers and judges make mistakes. Making
mistakes is human. It is very rare that a paralegal is
dismissed for making a mistake. It’s usually repeated
mistakes that put a paralegal’s employment at risk. If
you make a mistake, admit it. Set a plan to correct it,
if possible. Ask yourself why you made the error, and
what could you have done to anticipate the problem.
Assure the attorney you will try not to make the same
mistake twice, and then move on.
Essential Skills for Paralegals: Volume I
§
6.8 The 5 Keys to Paralegal Ethics
1.
Don’t discuss client matters with anyone
Confidentiality is paramount in legal representation.
A client must be able to completely trust that any
information provided to an attorney or an attorney’s
staff is given in confidence, and will remain
confidential. This is the attorney/client privilege,
which extends to the paralegal as an employee of
the attorney. As we will discuss later, a breach of
confidentiality may result in a lawsuit against the
attorney, since he or she is responsible for a
paralegal’s conduct under the doctrine of respondeat
superior.
The general rule is that if information is in the news,
it may be discussed since information that is public
knowledge is not privileged. Thus, a paralegal could
theoretically discuss publicly known information
about a client, as long as confidential information
wasn’t included in the conversation. The problem
is that one would find it very difficult not to provide
confidential information under such circumstances.
Therefore, the best policy is not to discuss any
aspect of any case with anyone outside the law
firm.
2.
Don’t pad your time sheets
“Padding” time sheets is to increase the number of
hours a paralegal, or attorney, claims to have worked
on a matter that is billed to the client. It is a very
real problem for both attorneys and paralegals, or
more accurately, for the clients of those who engage
in this practice. The mentality is that if the paralegal
has not achieved the desired amount of monthly
billing time, the paralegal simply goes back to the
sheets and adds time here and there.
This is a corrosive tactic that not only causes hostility
towards the legal profession, but also corrupts the
ethics of the person conducting the padding.
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Ethics is a slippery slope. It may not seem like
much to add a few minutes here and there, at
first. The minutes eventually become hours.
Then entire blocks of time may be fabricated.
Once the ethical higher ground has been lost,
that higher ground is very difficult to regain.
3.
Don’t cover-up your mistakes
As mentioned above, everyone makes mistakes.
The best way to make a good thing out of a
bad situation is to take responsibility for your
shortcomings. To try to hide your errors, or
deflect the blame, can come back to haunt you.
Taking responsibility is a sign of
professionalism and maturity. While you will
want to indicate that you regret what happened,
don’t grovel. Set forth a plan to correct the
error, if possible, and move on.
4.
Never perform an unethical order
If your attorney or another paralegal asks you
to engage in unethical conduct, just say no!
While most attorneys and paralegals attempt
to maintain a high ethical standard, some
succumb to the temptations of ethical
shortcuts.
To engage in an unethical act may have many
potentially negative repercussions. The firm
could fire you. If the act is not only unethical,
but illegal, there could be criminal implications.
But mostly, you would be compromising your
own values and ethics.
But what should a paralegal do if asked to
perform an unethical task? First, talk to the
attorney who made the request. It is possible
that you are misunderstanding the point, or
that the request is not unethical. In such cases,
the attorney will most likely explain the
situation and you will feel more comfortable.
Second, talk to a partner in the firm about your
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Essential Skills for Paralegals: Volume I
concerns. Don’t accuse the attorney. Simply
state your discomfort with the request. If
the partner agrees that the request was
ethically questionable, he or she should deal
with the attorney directly. Finally, if the
conduct becomes part of a pattern, you may
eventually need to contact a local bar
association’s ethics committee. Its a big step,
but one you will be proud of.
5.
§
Live up to your own standards
Ultimately, you are the one who has to decide
what standards to set. Don’t let those around
you dictate your principles and values. If
anything, rise above the mediocrity of those
whose ethical standards are not what they
should be.
6.9 The 5 Critical Traits a Paralegal
Should Possess
1.
Be positive, polite, and considerate
The attitude of a single employee can affect
an entire working environment, positively or
negatively. Be courteous. Be enthusiastic.
The attorney will have to spend more waking
hours with you than with his family. So make
it a point to be pleasant.
2.
Have the attitude of an advocate
Advocacy is the process of representing a
client’s interests. The paralegal, by his or
her attitude, is able to further the firm’s
advocacy of the client. When you are trying
to obtain information that your client has a
right to, your attitude should be one of an
advocate. Be almost self-righteous in pursuit
of your client’s rights to access to critical
information. Don’t let obstacles turn you
around. Find other ways to legally and
ethically obtain the information.
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3.
Be persistent, patient, and flexible
Whether you are trying to identify a witness,
locate a document, or find a case in the law
library, don’t give up if you don’t succeed at
first Work on “thinking out of the box.” In
other words, don’t limit yourself to typical and
expected sources or methods. Find other
avenues. Be imaginative. Most of all, stay
with it. At the end of the day, you will at least
be able to confidently list to your supervisor all
the sources or techniques that were utilized.
Sometimes that’s an important point to make.
4.
Be confident and dependable
Yes, these are related. “Being there” for an
attorney, client, or co-worker demonstrates selfconfidence and professionalism. Attorneys and
co-workers will begin relying on you and going
to you for help. If you react to these requests
in a positive and supportive fashion, your value
to the firm will increase dramatically. And of
course, it feels good to be viewed as an
essential element of the firm. It is not
uncommon to hear an attorney describe an
excellent paralegal as being as valuable to the
firm as an attorney.
5.
Be communicative with attorneys and staff
Don’t make a habit of complaining. If there is
a problem with a situation in the firm or with a
co-worker, attempt to resolve the problem
directly. Start by approaching the source of
the perceived problem in a positive and
constructive manner. Remember that the person
may be defensive at the beginning. Cut him or
her some slack. Innocent comments, even if
constructive, can be viewed as criticism, and
no one likes to be criticized. Be prepared for
and accept any initial defensive response, not
reacting in a negative fashion. Then attempt
to soothe any raw nerves with a positive plan
of action that involves not just the target of
the concern, but all involved.
Essential Skills for Paralegals: Volume I
§
6.10 The 5 Important Skills a Paralegal
Should Possess
1.
Organizational skills
This is incredibly important, and fortunately, is
one of the skills that can be improved with effort
and the right tools. The effort has to come from
a conscious decision by you. Dedicate yourself
to concrete, attainable goals. For starters,
commit to taking fifteen minutes in the morning
to make a list organizing the tasks you hope to
accomplish that day. Commit to a similar fifteen
minute period at the end of the day. During
that few minutes, make sure documents are
where they are supposed to be, necessary
messages and calls have been responded to or
sent, and that everything is in order to be picked
up the next day at the point where you left off.
Just adhering to those fifteen minute
organizational breaks can improve your selfdiscipline.
One hint about organization. Make a habit of
looking at your desk right before you leave for
the day. Think for a minute about the projects
you have been working on. Then ask yourself a
simple question: If I get food poisoning tonight
and have to call in sick tomorrow, could I phone
in instructions for someone to be able to access
information on those projects? This is a very
good, and simple, measure of how well organized
you are.
2.
The ability to manipulate forms
One of the things the author wishes he had
been taught when studying to become a
paralegal was this: Ask for a form or template!
Don’t start from scratch. Use a previously existed
document to create a new one. Someone else a
lot smarter than you or me has probably created
a document similar to the one you are working
on. So first, ask the lawyer if she or he has
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103C
done one before, or something similar to it. If
not, utilize the form book skills you will be
learning later.
If you do find a form or template on the firm
computer system, master the following two
techniques: “Cut & Paste” and “Find & Replace.”
Shortcuts can be your friends!
One danger in form manipulation is leaving
previous, unrelated or irrelevant information in
the new document. There is a trick to avoiding
such an embarrassing circumstance. It involves
discipline and the willingness to feel a little
foolish at first. Close your office door. Clear
your throat. Then read the document out loud
to yourself. It is much more likely that you will
rush and read over a mistake if you read it to
yourself. Reading it out loud forces you to read
it more accurately. One warning, though. If you
have a cubicle instead of an office, you may
need to find a private location to do the reading,
such as a storage room or stairway. This, of
course, may lead to some rumors and strange
looks questioning why that paralegal is reading
to herself!
3.
Legal research
Legal research ability makes the difference
between an good and a great paralegal. Once a
paralegal possesses strong research skills, the
learning potential and value of the paralegal is
exponential.
When studying research in this manual, don’t
simply try to understand the techniques and
differences presented by various law books.
Instead, look for the system of legal research.
Find the common ground all research books
possess. Work to understand the methods more
than the materials. This is what makes a
researcher great.
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Essential Skills for Paralegals: Volume I
4.
Be a self-starter
Take the initiative. Don’t wait to be told every
little task to perform. This isn’t to say you
should strike out on your own without direction.
Ask the attorney if you should check out a
witness’s background, or if she or he needs
help with the complaint for that new client.
When given an assignment, especially if it is
the first time attempting a specific task, it’s
tempting to ask for the attorney to “hold your
hand” and “walk you through it.” This is certainly
understandable, but it is usually a mistake.
After being assigned the task, ask any
questions you want. Once you have started
the task, only go to the supervisor if you are
totally stuck and can’t move forward, or if you
are at a “fork in the road” whereby choosing
the wrong direction would be a total waste of
time.
Take some pressure off yourself. A reasonable
attorney will understand that the first time you
attempt to perform a task, you are likely to
make mistakes, or not understand all aspects
of the work being performed. If you present
him with a final product that shows effort, and
the attorney doesn’t feel like he or she did the
work for you, you will have succeeded. Learn
from your mistakes, and keep any drafts that
the attorney has marked-up for future reference.
5.
Analytical skills
This manual will teach you the system of legal
analysis. Once you understand that system,
and begin utilizing it, your mind set changes.
You will find yourself reading a newspaper
differently, or watching the news on television,
upset that the reporter missed the point of the
story she or he just covered! And yes, Law &
Order will never be viewed quite the same again!
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105C
As a paralegal, such skills help a paralegal
anticipate questions during a witness interview,
prepare an answer to a complaint or other legal
document, and to focus time spent conducting
legal research.
§
6.11 The 5 Keys to Getting Along With
Your Attorney
1.
Don’t assume he or she knows everything
Lawyers suffer from an interesting conundrum:
we put them on pedestals expecting them to know
all, then we love to tell lawyer jokes!
Don’t have unrealistic, and unfair, expectations
of the attorney you work for. Even if he or she
seems to have an endless reservoir of law and
facts, that knowledge was acquired by hard work
and effort that is still continuing with every case.
Every attorney makes mistakes, loses cases, has
bad days. Don’t set unrealistic expectations by
imagining they are all-knowing.
This also means that as a paralegal you should
not be intimidated by attorneys. Some will amaze
you with their skill, knowledge, and wonderful
attitudes. Some will disappoint with their
laziness, bad work ethic, and rudeness. But this
is true in all professions. There will be good
lawyers and bad lawyers just as there will be
good paralegals and bad paralegals. Most, though,
will be hard working individuals that are good to
work with and for.
2.
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Most attorneys are ethical
Lawyers are easy targets. It’s become too easy
to paint the profession as being generally unethical
and sleazy. This is unfair to lawyers and to the
public in general. After all, if someone is in legal
trouble, he or she suddenly looks upon the lawyer
as his or her potential hero.
Essential Skills for Paralegals: Volume I
Most attorneys strive to maintain a high
ethical standard. There are examples in this
manual of some attorneys who have not risen
to such a level. While the examples are true,
they are exceptions provided to demonstrate
a point being made, not intended to demean
the profession.
3.
Provide suggestions, not advice
I learned fairly quickly that some attorneys
do not feel comfortable communicating as
equals. Equals can give advice to one
another. But, like it or not, the same
information, when provided as a suggestion
instead of advice, will probably be better
received. It’s a bit petty, and shouldn’t be
necessary, but it may help in your
communication, especially at first. Once a
paralegal proves his or her expertise, this
“posing” may no longer be necessary.
4.
Write down and repeat assignments
This is one of the best habits any paralegal
can develop. When an attorney or supervisor
gives you an assignment, take notes. Before
leaving the room, write down the assignment
in a single sentence or paragraph. Then read
it back to the attorney, and ask if it is correct.
Make sure to keep the notes in the file or
some other easily accessible place. This will
settle any potential disagreement later as
to what you were asked to do.
5.
Ask the attorney to prioritize tasks
You will never be congratulated for a “great
job of prioritizing.” You may, however, be
told, “That should have been your priority.”
In other words, there is no upside to
prioritizing for yourself. Take a minute and
create a list of the projects you are working
on. Ask the attorney to set the priorities.
This also reminds the lawyer of your current
work load and status.
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107C
Many paralegals work under several attorneys. It
is not uncommon that each attorney views his or
her work as the number one priority at the moment.
At some point, it may be necessary to get the
lawyers together to sort out the priorities of
various projects, or if indeed all the projects from
all the attorneys are indeed priorities, it may be
necessary to bring in another paralegal, at least
temporarily.
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§ 6.12
The 5 Keys to Failing in Your First Year
as a Paralegal
1.
Getting involved in Office Politics
Nothing will limit your career more quickly than
getting involved in the petty, vindictive world of
office politics. Getting the latest juicy tidbit about
what lawyer is dating what client, or what
paralegal was hungover that morning may seem
like a fun distraction, but it is more than that. It
is always negative, and usually destructive. Trust
me, when you have a day off or a vacation, you
will be the one they are talking about. And it
won’t be about how your new tatoo is so classy!
2.
Being obsessed with money
Make a commitment to yourself not to ask for
more money until after your first year. If the firm
offers it, great. Otherwise, don’t compare salaries.
Don’t inquire as to bonuses at other firms. That
first year, do your work and have a great attitude
about it. The money will come, either at that
firm or one that will pay for a more experienced
paralegal.
3.
Being constantly late to work
Everybody will know if you are late. Don’t fool
yourself by saying that if the attorney is out for
the morning, it won’t matter if you are late. The
secretary will see. The receptionist. Other
lawyers. Fellow paralegals. It will be noticed.
Essential Skills for Paralegals: Volume I
Fortunately, it will also be noticed if you are never
late, don’t take long lunches, and work hard.
4.
Not being a “team player”
When a co-worker, whether a paralegal, secretary,
or an attorney who is not your supervisor, asks
you for help or to perform a task, you will have
three choices. You can choose not to help out
since it’s not your job. This does nothing for your
career. You can help with a bad attitude. This
may ensure that those requesting the help never
return, but again will reflect negatively on your
potential.
Or you can help with a positive attitude. Not only
does this make you more valuable to the firm, it
means that when you are swamped at some point
in the future, the person you assisted is much
more likely to provide you with the same
assistance.
5.
Being a “professional coward”
Be brave about your career. Don’t remind yourself
of what you don’t know. Realize that everyone
has to start somewhere. The firm, if it is well
managed, is more interested in your potential than
your initial abilities. Take chances. Be willing to
take work from attorneys in areas with which you
are unfamiliar.
One related piece of advice: as a general rule, a
new paralegal takes the first job offered. This
sounds like unusual advice, but it is much easier
to move within the profession once that first job
is attained. Unless you can afford to, don’t wait
for the perfect position to come available at the
expense of other career opportunities.
Part One: Introduction to the Law
109C
§
6.13 ETHICAL ISSUES FOR DISCUSSION
Discuss the following situations. Are there ethical
issues? How could any issues be solved?
1. When Bob hired an attorney, he had already been
charged with murder. During their first meeting, Bob
told his attorney that he had, indeed, committed the
murder. Bob still wants the attorney to represent
him. Can the attorney representing Bob do so, having
knowledge that Bob committed the crime? Explain.
2. Carol worked for Smith and Jones law firm for several
years. She got engaged, but her fiancé works as an
attorney for a firm that represents a party against
whom Smith and Jones has an active lawsuit. What
ethical concerns do you see, if any, and can you identify
any possible solutions to the dilemma?
3. Helen, a paralegal, is walking across the street to
lunch one day when she witnesses an accident. As
the injured party is lying on the pavement looking up
at Helen, he asks if she knows a good lawyer. Can
she give her attorney’s card to the injured person?
4. Sue works for a divorce lawyer. She finds out that a
client, Sam Slime, is hiding assets from his wife in the
divorce. So she calls and leaves an anonymous
message for Sam’s estranged wife, informing her of
the hidden loot. Discuss ethical aspects of the
situation.
5. Sally is in trouble. Her rent is late, and she has no
money to buy her little girl food. She approaches her
attorney, and asks for a loan. Is this ethical?
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Essential Skills for Paralegals: Volume I
6. A man hired an attorney to represent him in a
divorce. The property settlement negotiations were
very contentious. The woman was being, in the
man’s estimation, very unreasonable. One day
the man went to a restaurant for lunch, and saw
his soon-to-be ex-wife having lunch, with his
attorney! Of course the man was very upset. He
confronted the attorney later that afternoon at
the law firm. The lawyer’s explanation was that
he was attempting to soften the woman’s stand
as to the negotiations. In fact, the lawyer said he
had gotten her to the point that it appeared a
breakthrough was imminent. The man, apparently
not the brightest person, bought the explanation.
7. When the divorce was finished, the woman got
basically everything. The lawyer told the client,
“Well, that’s the way it goes sometimes.” Within
a month, the man learned that his ex-wife had
moved in with his ex-lawyer. What ethical concerns
do you see?
8. An attorney tells his paralegal that she is to alter,
possibly even forge, some information in documents
involved in a lawsuit. He says that if she doesn’t
do as instructed, she will be fired and that she will
never work in a law office again. What would you
do? What ethical problems in this situation can
you identify?
9. An attorney is a trustee for the bankruptcy court.
He has access to an estate with $300,000 in cash
in one bank account. He “borrows” $200,000 and
goes to the Kentucky Derby. He wins, and pays
back the money, but does not pay interest. (The
funds were gone for about a week.) Are there
ethical problems?
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111C
10.An attorney asks his legal secretary to go to dinner.
She accepts, but is uncomfortable and tells him
she has changed her mind. He tells her not to
worry, and convinces her to go. After dinner, the
attorney drives her home. When the attorney tries
to kiss her, she pushes him away and tells him she
is very upset that he would attempt anything like
that. The attorney apologizes and leaves. But the
secretary does not feel she can go back to work,
and quits. Do you believe she has a valid sexual
harassment suit? Discuss.
11.An attorney runs an advertisement on television
that states, “Hire us, we’ll get the results you
deserve.”
Can you see any ethical concerns with
the statement?
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Essential Skills for Paralegals: Volume I
VOLUME
I
part 2
The Transferable Skills of Litigation
just the facts!
Part 2 Chapters:
There are two elements that make up the “fabric” of
litigation: facts and law. Ultimately, the court will
decide how the law applies to the facts. Before that,
the attorney, and her or his paralegal, must try to
anticipate and persuade the court through research
and investigation. Legal research will attempt to
anticipate what law could apply to the facts. We will
discuss legal research beginning in the following
chapters. Before the applicable law can be researched,
the relevant facts must be ascertained.
Chapter
Chapter
Chapter
Chapter
Chapter
7.
8.
9.
10.
11.
Evidence & Procedure
Law Office Investigation
Interviewing
Citation Form
Trial Preparation
This chapter will focus on several of the important
facets of paralegalism which pertain to fact
identification. When interviewing a client, the
paralegal’s goal is not to become the client’s buddy,
therapist, or psychoanalyst. The goal is to remain
neutral and obtain information. Once a paralegal loses
her or his neutrality, objectivity is also lost. Your client
is paying for legal services, not therapy.
When interviewing a witness, however, the paralegal
becomes a crusader for his or her client, pursuing the
client’s interests. This Segment will focus on the
potential kinds of witnesses a paralegal may interview,
techniques for interviewing clients, and the
development of skills needed to identify different kinds
of evidence.
Skip tracing is the technique of locating witnesses,
potential defendants, or people who need to be notified
of important information. In this Segment, we cover
skip tracing techniques and considerations. Remember,
often a witness doesn’t even know that she or he is
missing!
Evidence is that which tends to prove or disprove a
fact in question. But how much weight will a given
piece of evidence carry? What’s the difference between
direct and circumstantial evidence? Which would be
admissible? A paralegal must have some working
knowledge of these and other matters when engaging
in law office investigation.
ASSIGNMENTS
Interview Questions
§ 9.3a
Due Date:
/
/
Other Assignment:
§ ___.___
Due Date:
/
/
Part Two: The Transferable Skills of Litigation
113C
Courts of law follow precedent, on the general theory that experience is more just than
individual decision. Precedent, however, tends to carry forward the ignorance and injustice
of the past. Mankind is constantly learning, getting new views of truth, seeing new values in
social justice. Precedent clogs this advance.
Frank Crane
This Part of the Manual also concentrates on the
Hearsay Rule. This is one of the most confusing rules
for both attorneys and paralegals. It has been chosen
because, again, a broader skill is being sought: the
ability to break rules into elements in order to apply
them to client facts. This skill, when properly
mastered, allows even the most difficult of rules and
statutes to be understood and applied.
The Hearsay Rule is part of the rules of court or the
rules of evidence. These rules provide the procedures
that must be followed when a matter goes to trial. It
is critical for a paralegal to be able to access court
rules, and apply them to the litigation process.
Finally, there are often questions of ethics that
present themselves during both the investigative and
procedural aspects of litigation. The last chapter in
this Segment will discuss the ABA Rules of Ethics as
a basis for in-class discussion.
PART 2 OBJECTIVES
‰ Evidence
Students need to understand various forms of
evidence. Direct, circumstantial, oral, and
physical evidence are discussed.
‰ Interviewing clients
There are specific techniques that should be
considered when interviewing a client. Those
techniques and general interviewing skills will
be discussed.
‰ Law Office Investigation
Skip tracing involves locating a missing
person. Witnesses may be interviewed by
the paralegal. Formal or informal statements
may be taken of witnesses. All of the above
are elements of law office investigation.
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Essential Skills for Paralegals: Volume I
‰ Interviewing witnesses
When interviewing witnesses, a paralegal has an
obligation to pursue the client’s interests.
‰ Bluebook Citation Form
A citation is an address to a legal document.
“Bluebook Form” is the most widely accepted form
of legal citation. It is the common name for a
book titled Uniform System of Citation Form.”
‰ Court Rules
Court rules are the procedural requirements for
trials. Paralegals must possess the skills
necessary to find any rule for specific procedural
questions.
Part Two: The Transferable Skills of Litigation
115C
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Essential Skills for Paralegals: Volume I
chapter 7
Evidence and Procedure
§
7.1 INTRODUCTION TO EVIDENCE
Evidence is that which tends to prove or disprove a fact in
issue. Not all evidence is admissible. As an investigator,
however, do not concern yourself with admissibility. Your
job is to find evidence. Let the lawyer worry about
admissibility. There are several kinds of evidence,
including:
Direct Evidence: Evidence (generally from personal
observation) that tends to establish a fact without
the need of an inference.
Circumstantial Evidence: Evidence of one fact
requiring an inference to establish another fact.
Physical Evidence: Evidence which can be touched.
Also called tangible or demonstrative evidence.
Oral Evidence: Evidence given verbally. Also called
testimonial evidence.
One piece of evidence can be both direct and circumstantial,
depending on the perspective of the question being asked.
Example
Your client has been charged with robbing a bank. There is
a photograph taken by a surveillance camera that shows
him entering the bank, but nothing else. No guns, no
notes, just walking toward the teller.
-The picture would be direct evidence that your client
was at the bank.
-The picture would be circumstantial evidence that
he robbed the bank.
-The picture would be considered physical evidence.
-The testimony of the bank teller would be
considered oral evidence.
Part Two: The Transferable Skills of Litigation
117C
§
1.
7.2 EVIDENCE EXERCISE
Phil is charged with robbery. A witness at the
scene wants to testify that Phil was in the store
on the day in question. As to the robbery, what
kind of evidence would the testimony be?
† Direct
2.
Carol witnessed a car accident. She was stopped
at a red light when a blue car ran the same light,
and collided with a bus. What kind of evidence
would Carol’s testimony be as to the accident?
† Direct
3.
† Circumstantial
In a rape case, semen from your client, David,
was found inside the vagina of the alleged victim.
As to the rape, what kind of evidence would the
semen be?
† Direct
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† Circumstantial
Steve is a bricklayer. He is being sued for using
substandard materials in his work. Last week,
one of the houses he was working on collapsed.
During a subsequent investigation, it was
determined that the mortar being used was of
substandard quality. What kind of evidence
would the mortar report be as to the question of
substandard materials?
† Direct
5.
† Circumstantial
Ella is in trouble. Her fingerprints were found
on the handle of a kitchen knife that wound up in
the back of her boyfriend. She claims she is
innocent. What kind of evidence are the
fingerprints as to the murder?
† Direct
4.
† Circumstantial
Essential Skills for Paralegals: Volume I
† Circumstantial
§
7.3 EVIDENCE AND PROCEDURE
Courts rely on procedure. Evidence must be presented in a
procedurally correct manner, and must not violate court rules.
Documents are expected to be created in a specific manner,
filed in a specific amount of time, and responded to appropriately.
The procedures litigants are expected to follow are found in the
rules of court. Every court has its own local rules, as well as
general rules for the jurisdiction covered by that specific court.
Court rules are usually very similar in structure. Examples include:
local rules
All courts, including the lowest local court, have
procedures that must be followed.
state rules
State-wide court rules supercede local court rules when
there is a conflict. These rules are the basic procedural
guidelines for trials. There are usually separate rules
for civil trials and criminal trials.
federal rules
The Federal Rules of Civil Procedure (Fed. R. Civ. P.) and
the Federal Rules of Criminal Procedure (Fed. R. Crim.
P.) are the basic guides for trials in federal trial courts.
Every federal court has its own rules.
federal appellate rules
The Federal Rules of Appellate Procedure (Fed. R. App.
P.) provide the requirements for appeals in the federal
court system.
subject matter rules
Certain courts of “limited jurisdiction,” such as Bankruptcy
Courts and Courts of Military Justice, have rules specific
to the procedures in those courts. Many jurisdictions
have subject matter rules, such as Rules of Ethics, and
Arbitration Rules.
While almost all court rules can now be found online (findlaw.com),
they are still best accessed by the index to each set of rules.
The following pages are an introduction to evidentiary rules and
procedures.
Legal Junk Food
While working his
criminal calendar, the
judge called the case
of People v. Steven
Lewon Crook. The bailiff opened the door to
the holding cell and
called “Crook, come
forward.” Five prisoners walked from the
cell into the court
room.
Part Two: The Transferable Skills of Litigation
119C
§
7.4 COURT RULES EXERCISE
A paralegal must be able to quickly and accurately research
within the rules of court for the jurisdiction in which the current
action is being litigated. In the law library, the court rules are
found with the state statutes. There will most likely be several
sets of rules within a single volume (often soft bound). In that
volume, locate the rules applicable to the court in which the
litigation is taking place. In addition, most rules of court may
be found online at several sites, including links at
www.findlaw.com. Begin your research in the rules index, or
online rules. Locate and provide the state civil rule that applies,
as well as a brief answer to the question.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
120
How is a civil action commenced?
Rule:
Answer:
How long does one have to respond to Requests for
Admissions?
Rule:
Answer:
What happens if one fails to respond within the
designated time to the above?
Rule:
Answer:
How long does a defendant have to answer a
complaint?
Rule:
Answer:
May a deposition be videotaped? If yes, is a
written transcript required?
Rule:
Answer:
Do the Rules require that a Motion for Summary
Judgment be accompanied by supporting affidavits?
Rule:
Answer:
May damages requested in a counterclaim exceed
damages claimed in the complaint?
Rule:
Answer:
Are there time limits provided in the rules for filing a
proof of service once personal service has been
effectuated? If yes, what
are those time limits?
Rule:
Answer:
What may happen if a party fails to comply with an
order compelling discovery?
Rule:
Answer:
How many affirmative defenses may be sent to the
opposing part according to the rules?
Rule:
Answer:
Essential Skills for Paralegals: Volume I
§
7.5 THE HEARSAY RULE
Court rules can be complex and confusing. Other forms of
enacted law, such as statutes, have the same tendencies.
There is a skill, however, that makes the process of utilizing
and applying rules much more efficient, and accurate.
This skill is, for lack of a better term, “elementization.“
Elementization is the process of taking a rule, breaking it
into elements, then applying each element individually
instead of collectively. By applying each element one at
a time, the rule is much easier to utilize. There is no
better rule with which to practice this technique than the
hearsay rule, one of the most confusing rules in all of law,
even for lawyers and judges.
The technique of
“Elementization” is
presented in a more
comprehensive manner
in Volume II of the
Essential Skills Manual.
The hearsay rule is part of the rules of court. All state
courts and federal courts recognize some form of the
hearsay rule. Hearsay is generally defined as:
In-court testimony of an out-of-court statement
made by someone other than the in-court witness
offered to establish the truth of matters
asserted. In establishing hearsay, the question
of credibility lies with the out-of-court asserter.
The Hearsay Rule
Using a separate sheet of
paper, break the above
hearsay rule into
elements.
John hears Anna say, “I’m going to shoot Kate.” The next
day, Kate is found dead and Anna is charged with the
murder. The prosecution wants John to testify as to Anna’s
statement. The testimony would be hearsay.
The reason the hearsay rule exists is that testimony from
one person about what another person said is inherently
unreliable. Consider that even if the witness is telling
the truth about the out-of-court statement (which may be
an issue), there is still the possibility that the statement
was taken out of context, or the tone of the statement
was misinterpreted, or the statement was misunderstood,
or any other number of problems. The general rule is that
hearsay should not be admissible, unless there is a special
exception that would allow it to be admitted. A paralegal
conducting investigation will better be able to weigh the
value of statements and will also be able to identify
additional potential witnesses by understanding hearsay.
Part Two: The Transferable Skills of Litigation
121C
§
7.6 EXCEPTIONS TO THE HEARSAY RULE
If a party objects to a question in court because the answer
would constitute hearsay, the party asking the question may
argue that although the answer may indeed be hearsay, it
should be considered admissible because it falls under an
exception to the Hearsay Rule. There are 24 federal exceptions
to the Hearsay Rule, and each state determines for itself
which exceptions will be recognized by the courts in those
states. Of the 24 exceptions, there are eight exceptions that
constitute the majority of all accepted hearsay exceptions.
They are:
1. Admissions (By a party to the action)
2.
3.
4.
5.
6.
7.
8.
122
A statement made by a party to the action that amounts to
an admission regarding the matter at court.
Declaration Against Interest
Think of this as the same as an admission, except it’s by a
nonparty to the action.
Business Entries
Records kept in the normal course of business by the
person whose job it is to keep such records are considered
hearsay, but are admissible under this exception. Even
though the “testimony” is actually a document here, think
of the entry as a statement.
Dying Declaration
Statement made by someone who believes that their own
death is imminent. Some states do not consider dying
declarations hearsay, and therefore no exception is needed
to make the statement admissible.
Declaration of Bodily Symptoms and Conditions
A statement made indicating the person’s own bodily
condition, such as “I feel great,” or “My stomach hurts.”
Declaration of State of Mind
Think of this as a statement regarding knowledge and intent
of the person making the statement. For instance, a
person who says, “I’m so mad, I’m going to go over and
beat up Joe.” However, be aware that this has nothing to
do with sanity.
Declaration of Present Sense Impression
A statement made immediately before or during an event.
“Look at that car going so fast!”
Excited Utterance
Statement made immediately after an exciting event, about
that event. Also referred to as Spontaneous Declaration.
Essential Skills for Paralegals: Volume I
§
7.7 APPLYING THE HEARSAY RULE
The Hearsay Rule is:
In-court testimony of an out-of-court statement
made by someone other than the in-court
witness offered to establish the truth of matters
asserted. In establishing hearsay, the question
of credibility lies with the out-of-court asserter.
Apply the rule to the following examples.
1. Joe was walking down the street when his girlfriend Jill
ran up to him and said, “Bill just tried to attack me.” Bill
is being tried for attempted rape, and the prosecution
wants Jill to testify.
Is it hearsay?
Is it admissible?
2. Carl has been charged with armed robbery. His attorneys
wish to enter into evidence attendance records from his
high school which they claim will establish that Carl was
at school the day of the robbery.
Is it hearsay?
Is it admissible?
3. Sue and John are divorced. During their separation, Sue
asked John if he had fixed the brakes on her car as he
had agreed to do. He said, “I’ll do it today.” The brakes
failed, causing Sue to crash. Sue wants to testify to
John’s statement.
Is it hearsay?
Is it admissible?
4. Gail was at a bar one night when she overheard a
conversation between two people concerning fraudulent
worker compensation claims. A state agency wants Gail
to testify at an agency hearing as to what she heard.
Is it hearsay?
Is it admissible?
Part Two: The Transferable Skills of Litigation
123C
5. Harold was at a football game with Ted. During the
game, Ted told Harold that he had committed a series
of burglaries. Ted is killed three weeks later in an
accident. The police charge someone else with
committing the burglaries. Harold now wants to testify
at Kip’s trial. (Kip has been charged with the burglaries.)
Is it hearsay?
Is it admissible?
6. Paul and Carol were walking down the street. Suddenly,
Carol exclaimed, “Boy, that guy is so ugly he’d make
my dog vomit!” The man she was referring to, Gilbert,
is suing for mental cruelty. Gilbert’s attorney wants
Carol to testify.
Is it hearsay?
Is it admissible?
7. Ned and Nora are standing on a corner. When a plane
flies over, Ned exclaims, “That plane sure is flying low.”
The plane eventually crashes into a house and a suit is
commenced against the estate of the pilot. Nora is
called to testify as to the statement made by Ned.
Is it hearsay?
8.
Rita and Frank were driving in their car one evening
when a rabbit ran out in front of the car. Frank was
driving, and he swerved to avoid the rabbit.
Unfortunately, he ran head on into another car and is
being sued. Rita is being asked to testify to the fact
that Frank “jerked the steering wheel to the left.”
Is it hearsay?
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Is it admissible?
Essential Skills for Paralegals: Volume I
Is it admissible?
9. Eudora was talking to Felix on the phone. Suddenly,
Felix cried out, “Please don’t shoot me Gladys!”
Gladys has been charged with murder and the
prosecutor wants to call Eudora to testify as to the
conversation.
Is it hearsay?
Is it admissible?
10. Victor has been charged with murder. He needs to
establish an alibi. Victor’s attorneys want to
enter into evidence at trial the book of reservations
from a French restaurant, Chez Maggot.
Is it hearsay?
Is it admissible?
11.Henry was walking with Kathy on the beach. Suddenly
a man named Lou grabbed Henry’s beach bag and
started to run. When Kathy tackled Lou, he said, “All
I wanted was some money to get something to eat.”
Lou now claims he is innocent. The prosecution wants
Kathy to testify about Lou’s statement.
Is it hearsay?
Is it admissible?
12.Teri heard Icabod declare, “I’m going to treat myself
to a chocolate sundae!” Weight Watcher’s now wants
Teri to recount this conversation at a meeting.
Is it hearsay?
Is it admissible?
Part Two: The Transferable Skills of Litigation
125C
§
7.8 PRIVILEGES
A privilege is the right to refuse to testify, or the right to
prevent someone else from testifying in court. There are
only a few privileges recognized by the court. Privileges
are usually statutory, although many were first recognized
and applied by the courts or within the Constitution, and
later codified into statutes.
All privileges involve private communication that remains
private. Should the communication become public
knowledge through no fault of the privileged parties, the
privilege will still be recognized. If the communication
was not private, or if the privileged parties disclose the
communications, the privilege may be deemed to be
waived. Some of the recognized privileges include:
•
Attorney/Client Privilege
A client can refuse to testify as to private
communications between him or her and the
attorney. The client may also prevent the attorney
from testifying. This privilege extends to staff
working for the attorney.
• Doctor/Patient Privilege
A patient can refuse to testify about the private
communication she or he has with a physician.
The client may also prevent the doctor from
testifying, or releasing confidential information
against the client’s wishes. It should be noted,
however, that if a client sues for damages due to
personal injuries, the Defendant has a right to
view records relevant to the litigation.
•
126
Privilege Against Self Incrimination
This is the right to refuse to testify against a
person’s own interests. This is also referred to
as the Fifth Amendment. Be aware that once a
Defendant chooses to testify, she or he cannot
pick and choose those questions she or he wants
to answer.
Essential Skills for Paralegals: Volume I
•
Governmental Information
Certain government records are privileged, such
as tax returns, although those documents are not
privileged in matters regarding the fraudulent
preparation of such documents.
•
Clergy/Penitent Privilege
Often referred to as the “Priestly Privilege,” this
privilege applies to private communication between
any member of the clergy, acting in the capacity of
spiritual counselor, and an individual seeking
spiritual counseling.
•
Spousal Communications Privilege
Private communications between a husband and
wife is usually privileged. The privilege does
not apply to litigation between spouses, such as
an assault and battery case, or to matters
involving the well-being of a child.
Many people assume privileges exist where there is no
such protection. For instance, the following privileges do
not exist, or only exist in limited jurisdictions or legal
matters:
•
•
Parent/Child Privilege
Employer/Employee Privilege
The communication must take place in private and remain
confidential for the privilege to be considered valid.
Otherwise, the privilege is considered to be waived.
Part Two: The Transferable Skills of Litigation
127C
128
Essential Skills for Paralegals: Volume I
chapter 8
Law Office Investigation
§ 8.1
THE TERMINOLOGY OF INVESTIGATION
When conducting investigation, it is tempting for an
investigator to be concerned with whether the evidence
being gathered will be admissible. Admissibility is whether
a jury will be allowed to hear evidence to determine its
value. It does not mean believability. The jury is free to
believe or not believe the evidence. Admissibility should
not deter the paralegal/investigator from pursuing evidence.
Even if evidence gathered is not admissible later at trial,
the evidence may open up other doors to evidence that
might be admissible.
The paralegal/investigator often tries to locate and
interview witnesses. A witness is a person who can provide
information about a matter in issue. The five kinds of
witnesses are:
•
•
•
•
•
Hostile
A witness with interests opposite to your
client.
Skeptical
A witness who doesn’t want to “get involved.”
Neutral
A witness who favors neither side and has no
interest in the outcome.
Friendly
A witness with interests in favor of your client.
Combination
A mixture of the above kinds of witnesses.
Sometimes a witness, or even a client, is not at his or her
last known address. The attorney may ask the investigator
to perform a skip trace which means to find a person or
persons whose whereabouts are currently not known.
Once a witness has been identified, the investigator often
interviews the witness. An aspect the investigator should
keep in mind is whether the witness will be considered
competent to testify. This does not mean the investigator
should refuse to interview the witness. During the interview,
pay attention to the elements of competency. Competence
is a potential witness’s legal capacity to testify.
Note:
Some of these terms were
studied in Chapter One as
well, but because they have
special significance in relation
to legal investigation, they
are also provided for the
student here.
Part Two: The Transferable Skills of Litigation
129C
Some circumstantial evidence is very strong, as when you find a trout in the milk.
Henry David Thoreau
The elements of competency are:
her
1) understands the obligation to tell the truth,
2) has the ability to communicate,
3) is knowledgeable as to the topic of his or
testimony.
After being interviewed, the attorney may decide to
depose the witness, particularly if the witness’s
testimony appears to be important to the outcome of
the trial. A deposition is the oral questioning of an
individual under oath. In most matters it is done
outside the courtroom, such as an attorney’s office.
The person being deposed is called the deponent, or
witness. The examination is done under oath, and a
witness who lies during a deposition commits perjury.
Examination is the questioning of a witness under
oath. Examination may occur in court during a trial or
hearing, or it may occur during a deposition. The
kinds of examination are:
Direct Examination
Questioning the witness first. The party that
calls the witness to the stand conducts the direct
examination.
Cross Examination
After direct examination, the other party may
cross examine the witness, but must limit herself
or himself to the topics brought up under the
direct questioning.
Redirect Examination
The party conducting direct examination
conducts the redirect examination to clarify
matters brought up during cross. The party
conducting redirect cannot introduce a new line
of questioning, but must limit herself or himself
to matters discussed during cross.
Recross Examination
The party conducting cross examination conducts
the recross examination, but is limited to
matters brought up during redirect.
130
Essential Skills for Paralegals: Volume I
About half the practice of a decent lawyer consists in telling would-be clients that
they are damned fools and should stop.
Elihu Root
The witness being deposed may be issued a subpoena.
A subpoena demands the appearance of a witness at a
specific time and place. A witness, especially a business
or corporation, may have a registered agent, or resident
agent, who accepts service on behalf of another. Such
service is called substitute service.
During the examination, if the witness relates
communication with someone, that information may be
objected to as being hearsay. Hearsay is in-court
testimony of an out-of-court statement made by someone
other than the in-court witness for the purpose of
establishing the truth of matters asserted. In determining
hearsay, the question of credibility lies with the out-ofcourt asserter.
Even if a given piece of testimony is hearsay, it may be
admissible. Hearsay is inadmissible in court unless it
falls under one of the hearsay exceptions. These
exceptions are found in the Rules of Evidence.
The material collected and created during the
investigative process is considered Work Product, also
called Attorney Work Product. Examples would be
interview notes, tape recordings, charts, and diagrams.
Attorney work product is material prepared in anticipation
of litigation for the purpose of that litigation and as such
is not discoverable. Once the material is identified as
evidence at a trial, it loses its work product identity.
The paralegal should therefore be careful with evidence
collected and created, being aware that even if it is
initially protected under the umbrella of work product, it
may lose that protection later in the litigation process. Legal Junk Food
Judge to a defendant:
You have a right to a trial by
jury, but you may waive that
right. Which do you wish to
do? The defendant hesitated.
His lawyer said firmly, “Waive.”
The defendant raised his hand
and waved at the judge.
Part Two: The Transferable Skills of Litigation
131C
§
8.2 THE PARALEGAL AS FACT FINDER
Investigation is all about obtaining facts. Within a law
office, investigation is not primarily the “cloak and dagger”
seen on TV. Still, it can be a rewarding, and important,
aspect of a paralegal’s career.
Limitations
Despite portrayals on television, investigators do operate
under restrictions, especially when they work for attorneys.
In fact, as a paralegal conducting investigative duties,
you need to be especially careful not to violate laws or
rules of ethics. The general rule is that a paralegal acting
as an investigator cannot engage in any activity that an
attorney would be prohibited from engaging in. For
instance, under some circumstances, an attorney must
identify himself as an attorney to a potential witness.
The paralegal must follow the same guidelines.
Attitude
The key to being a successful investigator/paralegal is
attitude. When you walk out of the law office door, your
attitude should be that nothing is going to keep you from
obtaining relevant facts (in a lawful and ethical manner).
You become an advocate not only for your client, but for
his or her right to effective representation. When seeking
facts of a case, be a crusader for your client’s rights.
§
8.3 DUTIES OF INVESTIGATION
Following is an overview of the duties a paralegal might
engage in as an investigator:
Legal Junk Food
The defendant herein, having
been first duly sworn, was
examined and testified as
follows:
THE COURT:
Mr. Guzman, can you read and
write and understand the
English language?
DEFENDANT:
Si.
132
Identifying witnesses
One of the first jobs for an investigator is
identifying who to interview. The investigator
should review any documents, reports,
statements, or files making a list of those who
might have information about the matter. Then
the investigator should ask two questions:
-Who is missing from the list? (Who
ought to be there, but isn’t?)
Essential Skills for Paralegals: Volume I
-Are there any unknown witnesses?
These are witnesses not named,
but whose existence is known. An
example would be a photograph of an
accident scene with a person in the
background. The name is not known,
but the person might have been a
witness.
Interviewing witnesses
The goal when interviewing a witness is to pursue
the client’s interests. You are not a neutral party,
and cannot portray yourself as such. The two
fundamental considerations when interviewing
witnesses are:
-Preparation of questions
Preparing a set of anticipated questions
for the interview will make the session more
productive and professional. Create a
form bank of questions. After a couple
of years, you will have created a valuable
resource for yourself.
-Location
Choose a setting appropriate for the
interview. A law office projects a
professional aura. A conference room is
appropriate when documents must be
reviewed, or when multiple witnesses are
being questioned.
Skip tracing
You may be asked to locate a witness, or even a
client, whose whereabouts are unknown. This is
called skip tracing. There are two levels of skip
tracing. The primary level involves searches that
can be done from within the office. The secondary
level are searches that involve field work.
Legal Junk Food
The following answers to
interrogatories were made by
the wife in a divorce action:
__________________
152. Do you have a proposal
to settle this case amicably?
Answer: Yes.
153. Assuming your answer
to the preceding interrogatory
is in the affirmative, please
state such proposal.
Answer: Use a silver
bullet or a wooden stake
as is appropriate in these
cases.
Part Two: The Transferable Skills of Litigation
133C
Accident scene photography
A paralegal/investigator may be asked to take
photographs of the scene of an accident. Following
are a few primary considerations when performing
accident scene photography:
-Get there quickly
Even if some time has passed since the
accident, make it a point to visit the scene
as quickly as possible. Traffic signs, road
deformities, and vegetation can change.
Take more pictures than you think will be
necessary. As the quote says, “If less is
sometimes more, imagine how much more
will be!”
-Get the big picture
First, take photographs of the overall scene.
Don’t concentrate on the exact spot of the
accident, but the approaches, from all
directions, as well. Your goal should be to
anticipate questions the attorney might
have, such as, “Was the street lined with
trees?” or “How far ahead can a person see
at the curve in the road?” Try to create a
record of how the approach to the accident
appeared to all parties, including witnesses.
-Get the small picture
Try to capture details of the actual scene.
If there are skid marks, oil or gas stains,
cracks or bumps in the pavement, scars in
the scenery from the accident, traffic signs
and signals, photograph them.
-Time of day
If possible, take pictures approximately the
same time of day as the accident. If the
accident was at night, take both day and
night pictures. If weather may have been a
factor, attempt to revisit the scene at some
point under similar weather conditions.
134
Essential Skills for Paralegals: Volume I
Obtaining documents
If an attorney needs a document, the paralegal/
investigator needs to find a way to obtain it
(legally and ethically). The most common
documents needed are:
-Court documents
Most documents filed in court are public
record. The major exceptions are
records relating to juveniles and some
family court records. If a record is
not sealed, you should be able to gain
access. If the action has been closed
for more than a year, the court clerk has
probably sent the file to the court
archives. Access should still be
possible. Be respectful to the clerks,
but remember that your client has a
right to those documents.
-Medical records
If you need to acquire documents from
a doctor or hospital, the best way is to
obtain a written authorization or release
from the subject of the records, in most
cases your client. Hospitals will often try to
provide only summaries, and may
attempt to “sanitize” a patient file by
taking out physician and medical
personnel notes. Insist on the complete
file, and make sure any release specifies
the entire file, including notes and
diagnoses. If the entire file is not
provided, it is possible to subpoena the
entire file by using a subpoena duces
tecum addressed to the hospital
“Custodian of Records”. If the hospital
does not release the entire record
according to the subpoena, the attorney
may then file a Motion to Show Cause,
or a Motion for Contempt Citation.
Legal Junk Food
DEFENSE COUNSEL
Are you sure you did not enter
the Seven-Eleven on 40th and
N.E. Broadway and hold up the
cashier
on June 17 of this year?
DEFENDANT
I’m pretty sure.
Part Two: The Transferable Skills of Litigation
135C
Taking statements
Witness statements serve two purposes. First, they
provide information that can be used in the pre-trial
process to foster settlement. Second, they lock the
witness in as to the scope and substance of the testimony
they will provide at trial. There are two kinds of witness
statements, formal and informal.
-Formal witness statements.
Formal statements are generally typed,
and often notarized. They are prepared
after at least an initial interview, if not
multiple interviews.
-Informal witness statements.
Informal statements are usually handwritten,
and are the result of unexpected information,
or a surprise within the interview. The
statement locks the witness in as to the
surprising or important information.
Unless the attorney instructs otherwise, only take
statements that benefit your client’s position. If you
put an adversarial statement in writing, you simply lock
the witness in as to the damaging information, and may
force yourself to provide damaging discovery to the
opposing party.
In September, 1980, in La
Jolla Calif., the “Grand Old
Man of Divorce Law,” John T.
Holt, and his wife, Phyllis, filed
suit against their neighbors,
William and Helen Hawkins,
claiming that the Hawkins
had trimmed their hedges
into obscene shapes. The
Holts named 20 other neighbors as coconspirators. They
asked $250,000 in punitive
damages and demanded removal of trees and hedges
which had been shaped “to
resemble phallic symbols.”
The case was finally dismissed In January 1982.
136
Title searches
The method used to search land titles varies from state
to state, and sometimes even county to county. It is not
usually difficult, just tedious. The County Recorder
maintains records regarding titles to property. Check
with the Recorder’s office for specific steps to take within
that jurisdiction. Here are some typical steps for a title
search:
-Go to the County Assessor
Use the known address to look up the Assessor’s parcel
number. Most documents, such as an appraisal, will
Essential Skills for Paralegals: Volume I
have the Assessor’s parcel number as well as the
legal description needed to check the Recorder’s office
for encumbrances. An example of a Assessor’s parcel
number would be: 190-04-612-068
-Go to the County Recorder
Use the legal description to check the Recorder’s
records, determining whether there are any liens and/
or encumbrances. An example of a legal description
would be: LOT 237 BLOCK 9 BEACH FRONT HOMES
Internet searches
The Internet offers three levels of search potential.
General information search
Two of the most effective general information search
engines are google.com and askjeeves.com. For
serious online queries, go to copernic.com, and
download the free Copernic Basic search engine. The
advantage to Copernic is that it searches multiple
online engines, and saves the search results on your
hard drive, allowing you to return to the search at
any time.
Legal site search
If the goal is to locate a site for specific information
from a legal source, such as a court, agency, or
government office, the most comprehensive site is
findlaw.com. You may also conduct the following
search: law legal (your state) (your county)
information.
Legal authority search
The general research site findlaw.com has excellent
statutory, court rule, and administrative regulation
links. Westlaw.com and Lexis.com are high end
fee based sites, but may offer limited free searches
or free trial offers. Versuslaw.com is a low cost fee
based site that has grown in popularity. For additional
online research, try Loislaw.com.
Part Two: The Transferable Skills of Litigation
137C
§
8.4 LIBRARY TOOLS FOR INVESTIGATION
Investigation is generally about finding facts. Legal
Research is generally about finding law. In the preparation
of interview questions, or when drafting deposition
questions for an attorney, there are some research
techniques that can assist the paralegal in her or his
investigatory capacity. These tools include the following:
Form books
Form books can help the paralegal create documents,
checklists, and provide other pre-trial assistance. There
are dozens of different form books. Each library decides
for itself which ones to carry, so you must be flexible as
to the available resources. For investigation, Am.Jur.
Proof of Facts is a very good research tool.
If time permits, attempt to research your matter using
form books in the law library. If you locate relevant
examples of interrogatories, examination questions, or
other material, you can modify them for developing interview
questions.
Martindale-Hubbell Law Directory
This set of books has three main functions. The State
and Foreign Law Digests may be helpful to an
investigator working outside his or her normal
jurisdiction.
Legal Junk Food
“Today, we conclude that
when an attorney for a criminal defendant sleeps through
a substantial portion of the
trial, such conduct is inherently prejudicial; and thus, no
separate showing of prejudice
is necessary. Prejudice is inherent in this case because
unconscious or sleeping
counsel is equivalent to no
counsel at all.”
138
1. State by State Attorney Listings
Attorneys that subscribe to Martindale-Hubbell are
listed with phone, address, fax, and areas of
specialties, undergraduate and law schools attended,
and foreign languages spoken at the firm.
2. Digest of State Laws
In a separate set of volumes, Martindale-Hubbell
will provide an abbreviated synopsis of the legal
system and general laws of each state.
3. Digest of Foreign Laws
In a separate set of volumes, Martindale-Hubbell
will provide an abbreviated synopsis of the legal
system and laws of most foreign countries.
Martindale-Hubbell maybe found online at:
www.martindale.com
Essential Skills for Paralegals: Volume I
§
8.5 SKIP TRACING
Skip tracing is the attempt to locate someone who is
not at the last known home or business location. A
skip can involve:
• Someone avoiding a criminal charge.
• Someone avoiding a civil lawsuit.
• Someone avoiding a financial obligation
• A person who is not avoiding detection, but
is
being sought for informative purposes, such
as notification of a death in the family, an
inheritance, adoptive information, etc.
• A witness to a legal matter.
Signs of a skip
If someone is avoiding detection, the
investigator may be led to the following:
-Several dead-ends
-Addresses of relatives or friends
-Several different addresses
Skip patterns and similarities
There are some patterns that an investigator should
be aware of when skip tracing.
Is the skip intentional?
Keep in mind that some skips are unintentional.
The individual may have simply moved.
Is it a financial skip, or a criminal skip?
If the skip is criminal, concentrate on local
venues, such as family and friends. A criminal
skip is more likely to rely on a close circle of
support.
If your search is initially unsuccessful, you may need
to broaden your search.
Part Two: The Transferable Skills of Litigation
139C
It sometimes makes more sense to look for indications
of the skip in the past instead of the present.
Review pleadings and documents filed in court for
overlooked sources, including court actions other than
the current litigation. Specifically, look for previously
served subpoenas or summons for other addresses.
Pay attention to who served the process. That person
may have information.
Search for known relatives and acquaintances of the
skip, hoping they will lead you to the subject.
§
8.6 SOURCES FOR SKIP TRACING
Following are some starting points for skip tracing.
Legal Junk Food
DEFENDANT
I would like to also be allowed
movement in the courtroom.
COURT
You’d like what?
DEFENDANT
Movement in the courtroom
without being followed by the
Sheriff.
COURT
You can’t do that.
DEFENDANT
I think it’s inhibiting my
defense. It’s prejudicial to my
defense.
COURT
It’s up to you. You know, the
court house, when I first
practiced law here, had an iron
cage for defendants who are
incarcerated and they sat in the
iron cage in the court room.
Even though there is no cage,
they still sit in what is a dock
and obviously they’re not
allowed to wander around.
DEFENDANT
They used to feed Christians to
lions. That don’t make it right.
140
Initial Sources (In-office):
• Information (411)
• Telephone Book
• Present and Past Employers
• Family and friends
• Utility companies (usually confidential)
• Internet sources, including general searches
and location specific searches
Field Sources (Out-of-office):
• Court files to check subpoenas for addresses
• Reverse and Cole Directories
(These are books that provide an address
based on phone numbers, as well as other
information.)
• Neighbors
• Post Office Forwarding Addresses
• Vehicle Registration and Title
• Marriage Records
• Divorce Records
• Incorporation Records (Secretary of State’s office)
• Bankruptcy Records
• Co-signers on loans
• Insurance Agents
• Cemetery Records
• Reviewing Information for overlooked sources
Essential Skills for Paralegals: Volume I
chapter 9
Interviewing
§
9.1 GENERAL CONSIDERATIONS
Interviewing Styles
Develop your own style. Every investigator will find
a comfort zone. Not every technique will fit every
paralegal conducting investigation.
Learn from your experiences. Figure out what’s
working and what’s not. After each interview, take
five minutes to think to yourself what part of the
interview was comfortable, and what aspects were
stressful or awkward.
Attitude of the Interviewer
Understand the image you are presenting. Not every
interview calls for a formal approach. Who you are
interviewing and the reason for the interview will
determine to a great degree how formal, or informal,
your attitude should be. Always be professional.
Act appropriately. Don’t ask personal questions
unless they relate to the representation. Never try
to present an air of superiority.
Legal Junk Food
D.A.
Then what did you do?
POLICE OFFICER
I began kicking in the
door.
D.A.
Were you wearing
boots?
POLICE OFFICER
Yes, sir, size 12.
D.A.
How many times did
you kick the door?
POLICE OFFICER
About ten.
D.A.
What was Sergeant
Harp doing while you
were kicking the door?
POLICE OFFICER
Laughing at me.
Dress appropriately for the situation. Interviewing
a teenager at a softball game or an auto mechanic
in a garage may call for a different kind of dress. To
dress in standard office clothing under such
circumstances may put up a “wall” between the
paralegal and the witness or client.
Sometimes pressure works, sometimes it
doesn’t. When the person being interviewed is not
cooperative, the interviewer may be tempted to try
to pressure the witness. Appropriate pressure would
include informing the witness that a deposition is
possible if the witness is not cooperative. It may
even be appropriate, with the attorney’s consent,
to make the suggestion that once the interview has
been conducted, the witness may not be needed at
trial. Pressure doesn’t work if the witness has an
interest in being uncooperative.
Part Two: The Transferable Skills of Litigation
141C
When interviewing turns into interrogation.
Interviewing is the process of cooperatively obtaining
information from a person. The goal is to keep the
session in “interview mode,” at almost all costs. If
the witness or client is uncooperative, approach the
subject matter from different angles, hoping to find
an opening. If you are dealing with such a witness,
at some point the interview may need to take a
more aggressive turn, becoming more of an
interrogation.
Interrogation involves probing, asking “yes or no”
questions (leading questions), and pressing the
witness for information she or he is reluctant to
provide. However, once the interview turns to
interrogation, it will never go back to being an
interview. Interrogate as a last resort. One other
note: don’t assume that because a witness is
“hostile” they will not cooperate. In fact, hostile
witnesses are often willing to provide information.
It’s just that the information may be harmful to your
client!
The Need for Privacy
Be aware of your surroundings. Unless safety is an
issue, or other circumstances require it, don’t
interview a client in an area where others can hear
the conversation. Privacy enables the witness to
feel the information provided is confidential.
Legal Junk Food
COUNSEL
Were you leaning up
against the shut door or
open door?
WITNESS
A shut door. How can
you lean against an open
door? There’s a hole
there. You’d fall through
the hole.
142
The problem is that isolation may raise safety and
isolation issues. The answer is to interview the
witness in a room with windows. If this is not
possible, and it is necessary to close the door to the
room, leave the door open just a crack, enough so
there is no isolation, but not enough to destroy the
sense of privacy.
Facilitate trust through the setting. Foster a “just
between us” atmosphere without misleading the
witness as to how the information will be used.
Essential Skills for Paralegals: Volume I
HOMICIDE, n. The slaying of one human being by another. There are four kinds of homicide: felonious,
excusable, justifiable and praiseworthy, but it makes no great difference to the person slain whether he fell by
one kind or another—the classification is for advantage of the lawyers.
Ambrose Bierce, The Devil’s Dictionary 139-40 (1911)
A Suitable Setting for the Interview
Office Interviews. An office is appropriate
for standard “one-to-one” interviews and
provides an aura of authority.
Conference room. A conference room is
helpful when multiple subjects are being
interviewed or when documents need to be
reviewed.
Field Interviews. Interviewing in the field is
sometimes necessary. Try to create a setting
that is conducive to the exchange of
information.
Advance Preparation for the Interview
Develop questions before the interview. The
high point for most attorneys comes when
they examine a witness at trial. Would you
have confidence in your attorney if he
examined a witness without prepared
questions? The closest a paralegal usually
comes to examination is interviewing a
witness. To walk into an interview with simply
a pad and paper is not doing your client
justice. Prepare questions in advance. In
addition, sometimes the questions prepared
for an interview evolve into deposition
questions for the attorney, and they in turn
evolve into trial examination questions.
Prepare the room. Have cups and water
ready. Consider providing pen and paper for
everyone.
Detecting Deception
Red flags: eye movement and body language.
Don’t overreact to body language. It is not
your job as a paralegal to psychoanalyze a
witness or client. But if during an interview,
the witness seems uncomfortable making
eye contact, this may indicate deception or
Legal Junk Food
Two police officers extracted a
confession from a suspect by
advising him the Xerox
machine was a lie detector.
First they put a colander (a
salad strainer) over the
suspect’s head and attached
fake wiring to the copying
machine. Then, under the
Xerox lid they placed a slip of
paper reading “He Is Lying!”
Every time the suspect
answered a question, an officer
would press the duplicating
button and out would pop a
Xeroxed “He Is Lying!”
Finally shaken, the suspect
told all. His confession was
thrown out by a judge who was
not amused.
Part Two: The Transferable Skills of Litigation
143C
The law is the only profession which records its mistakes carefully, exactly as
they occurred, and yet does not identify them as mistakes.
Elliott Dunlap Smith
that the witness is holding back information.
“Prepared responses” may be a red flag. If
during an interview a witness pauses
dramatically prior to answering critical
questions, this may indicate a prepared
response. A prepared response means the
witness may be framing the answer so as to
only provide the minimum amount of information
possible. In such cases the paralegal should
probe for additional information.
Psychological Factors of Interviewing
Nervousness does not always indicate
deception. It may simply indicate discomfort.
Put yourself in the witness’s position, and be
sensitive to external factors. Again, you are
not a psychologist. You may, however, want to
note a witness’s demeanor. The attorney may
have to rely on your impression when
determining the effectiveness of a potential
witness.
Legal Considerations and Evidentiary Issues
Identifying yourself. A paralegal working for an
attorney must not misrepresent her or his
identity. Identify yourself as a paralegal working
for an attorney. While you do not always have
to identify the client you are working for, you
must not give the impression to the witness
that you are an uninterested party.
Admissibility. The issue of admissibility should
not be a consideration during the investigative
process. Don’t ignore a line of investigation
because the information would be privileged,
or result in hearsay. Collect the information
now. Let the attorney worry about admissibility
later.
Attorney Work Product. Attorney Work Product
is material produced in anticipation of litigation,
as a part of the representative process. Notes
144
Essential Skills for Paralegals: Volume I
No one has been barred on account of his race from fighting or dying for Americathere are no “white” or “colored” signs on the foxholes or graveyards of battle.
John F. Kennedy
made by the paralegal during the investigative
process, and any witness statements, would be
considered work product, and therefore would not
be discoverable. Once a person is designated by
either party as a witness at trial, the notes and
statements lose their work product status, and
therefore are generally discoverable. Be careful
what you put in writing. If it could damage your
client’s case, think twice before putting it on paper!
Audio and Video Recording the Interview
Recording an interview. Any interview may be
recorded, but never secretly. Recording makes notetaking during the interview less critical and provides
an accurate record of the session. Always obtain
the permission of the witness, and make sure the
recorder is clearly visible during the interview.
Confirming witness permission.
the following:
On tape, state
-Who you are
-The date, time, place
-Who is being interviewed.
-State “You are aware this interview is
being tape recorded, aren’t you?” and
elicit a verbal response.
-Restate all the above whenever the
tape is recorder is stopped.
Double recorders. If the witness is reluctant to be
recorded, consider using two tape recorders. At
the end of the interview, give the witness one tape,
you keep the other. This provides assurance to the
witness that the tape will not be altered.
Part Two: The Transferable Skills of Litigation
145C
§
9.2 THE 3-STAGE INTERVIEW PROCESS
There are three stages in preparing interview questions.
For each stage, the interviewer should prepare questions
in a chronological manner, in many cases minute by minute,
even second by second. Remember, time affects
everything: liability, damages, perception. Present
questions in a chronological manner wherever possible.
Be absolutely meticulous.
• Don’t jump into the questioning. Try to
break the ice for a couple of minutes.
• Do not be repetitive, unless it is part of a
strategy to determine inconsistencies or
deception.
• If a client answers a question that the
interviewer was going to ask at a later point,
check off that question so that it is not re-asked.
• Don’t cut off the witness.
• Try to keep the witness “on-topic” and focused.
• Be very careful not to give legal advice
or set fees.
Legal Junk Food
COUNSEL
In this case, my defense
disputes the seriousness of
the injury; no medical
attention, no sutures, no loss
of consciousness, nothing. In
fact, when I last saw the
young
gentleman,
the
remnant was a Hack eye,
which I don’t think comes
under the purview of serious
injury.
D.A.
Yeah.
THE COURT
Mr. Prosecutor?
D.A.
Just observing. I wonder how
it feels to get punched in the
mouth. I wonder if that’s a
242 or 245.
THE COURT
You may find out if you keep
on interrupting.
146
Background Information
This is general information about the person.
Where they work, where they live (if appropriate),
how to get in touch with them, & other relevant
information. This stage is often replaced with an
“Intake Form,” or “New Matter Sheet” provided by
the firm.
1. Pre-Event Questions
Take a natural point prior to the event where the
event may have been affected, but still a point
that is not part of the event. It could be an hour,
a day, a week, or a month. There is no universal
point. (It should be noted that it is often easier
to identify the Event stage first, then the PreEvent stage.) For instance, in a car accident
interview of the driver, the pre-event stage might
be when the witness got up the morning of the
accident. The Pre-Event stage ends with the Event.
Essential Skills for Paralegals: Volume I
Under a government which imprisons any unjustly, the true place for a just
man is also a prison.
Henry David Thoreau
2. Event Questions
The event begins at the point of no return. There
should be a direct relationship between the
beginning of the event and the point at which
damages occurred. In the car accident case,
the event might be when the driver got behind
the wheel of the car prior to the accident.
The event ends at the point where the eventual
defendant is no longer in a position of liability
for his conduct. For instance, in a car accident
case, the event most likely ends when the car
comes to a rest after the collision. The event
ends because the defendant’s conduct after the
accident are usually irrelevant to the question
of liability.
Consider having the witness relate the entire
event in his or her own words first. Never
interrupt during this recounting. When the
witness is finished, wait for a few seconds
(sometimes referred to as a “pregnant pause”),
then explain that you are going to go back over
the Event again. This time use your prepared
questions to make sure everything was covered.
3. Post-Event Questions
From the moment the potential defendant is in
no legal jeopardy for his actions, the Post-Event
begins. It lasts up to the moment of the
interview and should include:
•
•
•
•
•
•
What happened immediately after
the Event.
Questions relating to damages.
Questions relating to the
mitigation of damages.
Who the witness has spoken with.
Who has attempted to contact
the witness.
Whether there were other areas
covered by other interviewers.
Legal Junk Food
THE COURT
Are you ready to proceed?
DEFENDANT
No, Your Honor, not at this
time. Would you place my
matter on second call or recall
the case after the court takes
a recession?
Part Two: The Transferable Skills of Litigation
147C
Not all the progeny of principles begotten of a judgment survive...to maturity.
Those that cannot prove their worth and strength by the test of experience, are
sacrificed mercilessly and thrown into the void.
Benjamin N. Cardozo
§ 9.3
IDENTIFYING INTERVIEW STAGES
You are going to interview potential clients for each
of the following matters. Assume the firm has a
“New Matter Sheet” for background information. For
the purpose of developing interview questions,
determine what point the Pre-Event, Event and Post
-Event stages would begin.
Remember that it is often easier to identify the Event
Stage first.
1. A spousal abuse incident.
Legal Junk Food
COUNSEL (for the defense)
Now, you indicated that you
were missing several items?
WITNESS
Yes.
COUNSEL
Cassettes?
WITNESS
Right.
COUNSEL
Do you recall the names of any
of those cassettes?
WITNESS
Yes, but I couldn’t name them
all.
COUNSEL
What names do you recall?
WITNESS
Okay. Rolling Stones Live, it’s
a double album. Eddie Money,
I can’t I think of the other ones.
DEFENDANT
Pat Travis?
WITNESS
Right. Pat Travis.
COUNSEL (to Defendant)
Shut up.
WITNESS
Two Pat Travis.
148
Pre-Event:
Event:
Post-Event:
2. A drunk driving accident.
Pre-Event:
Event:
Post-Event:
3. A landlord/tenant dispute where the
tenant refuses to pay rent until the
plumbing is repaired.
Pre-Event:
Event:
Post-Event:
ASSIGNMENT 9.3a
Prepare Pre-Event, Event and Post-Event interview
questions for either your client or a witness in the
case you were assigned. Use the example on the
following pages as a guide.
Essential Skills for Paralegals: Volume I
§
9.4 EXAMPLE OF AN INTERVIEW
Following is an example of prepared questions for an interview.
In this case, the interview was done with a bare minimum of
information heading into the interview. Basically, all that was known
prior to the interview was that the client had been charged with
assault on his wife, and that the alleged assault occurred at the
couple’s home around 11:00 p.m. after attending a party.
Introduction
“Hello! My name is Dan Barber and I’m a paralegal. Joe
Lawyer asked me to meet with you to get some information
about your situation. Why don’t you come to my office?”
“Would you like something to drink before we start?
“OK. I want to explain a couple of things. I’m going to be
asking a set of prepared questions. You may not understand
the purpose of some of the questions, but please be patient.
They are being asked for a reason. However, feel free to
ask me about the reason for any of the questions I ask.
I’d like to tape record this interview. Is this all right with
you?”
“No one except the attorney, you and me will ever hear
the tape or see the transcript. In fact, I will get you a
copy of the transcript so you can change any of your
answers if you want. When I start the tape, I will ask you
to identify yourself, and acknowledge that you know this
interview is being recorded. In fact, anytime the tape is
stopped and started, I will ask you the same introductory
questions. Do you have any questions? OK, let’s get
started.”
Background Information
1. Use form provided by firm
Pre-Event Questions
“This is Dan Barber. I am a paralegal working for Joe
Attorney, the date is August 7, 2004, it is 10:00 a.m.,
and today I am interviewing Robert Neeley. Robert, are
you aware that this interview is being tape recorded? Do I
have your permission? Thank-you. This interview is
regarding an arrest for assault on the evening of July 20th,
2004.”
Part Two: The Transferable Skills of Litigation
149C
The constitution does not provide for first and second class citizens.
Wendell L. Willkie
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
150
What did you do the night before the event in question?
What time did you go to bed that night?
What did your wife do the night before?
What time did she go to bed that night?
Did you sleep well?
Did your wife sleep well, to your knowledge?
How do you know whether she slept well or not?
Do you use medication to help you sleep?
Does your wife use medication to help her sleep?
What time did you get up the morning of the event in
question?
What time did your wife get up the morning of the event
in question?
Did you eat breakfast? If yes, what?
Did your wife eat breakfast? If yes, what and how do you
know?
Did you work the day of the event?
If yes, what time did you leave for work and arrive at
work?
If yes, how did work go?
If no, why not?
If no, what did you do?
Did your wife work the day of the event?
If yes, what time did she leave for work, and how do you
know?
If no, why not?
If no, what did she do, and how do you know?
Did you have any conflicts with someone other than your
wife on the day in question?
Did your wife have any conflicts with someone other than
you on the day in question? If yes, how do you know?
What time did you have lunch?
Do you know what time your wife had lunch? If yes, how
do you know?
What did you have for lunch?
What did your wife have for lunch?
Did you consume any alcohol at lunch?
Did your wife consume any alcohol at lunch?
What time did lunch end for you?
What time did lunch end for your wife, if you know?
What did you do in the afternoon?
What did your wife do in the afternoon? How do you
know?
Did you take any medication during the day or evening of
the event?
If yes, was this a regular occurrence?
Essential Skills for Paralegals: Volume I
No two cases are exactly alike. A young attorney found two opinions in the New York
Reports where the facts seemed identical although the law was in conflict, but an older and
more experienced attorney pointed out to him that the names of the parties were different.
Cuthbert W. Pound
37. Did your wife take any medication during the day or
evening in question? If yes, how do you know?
38. If yes, was this a regular occurrence?
39. Did anything unusual happen in the afternoon?
40. Did you have dinner?
41. If yes, where and with whom?
42. What did you have for dinner?
43. Did your wife have dinner?
44. Did you drink alcohol at dinner?
45. Did your wife drink alcohol at dinner? If yes, how
do you know?
46. If yes, where and with whom, and how do you know?
47. What did she have for dinner?
48. What time did your dinner end?
49. What time did your wife’s dinner end?
50. What did you do immediately after dinner?
51. What did your wife do immediately after dinner?
52. When did you first know you and your wife would
be attending a party that night?
53. Where was the party?
54. What time did the party start?
55. What exactly did you do between dinner and the
party?
56. What exactly, to the best of your knowledge, did
your wife do between dinner and the party?
57. How did you get to the party?
58. How did your wife get to the party?
59. What time did you leave for the party?
60. What time did your wife leave for the party?
61. Did you stop anywhere on the way to the party?
62. Did your wife stop anywhere on the way to the party?
63. Did you consume alcohol or drugs on the way to
the party? If yes, what and how much?
64. Did your wife consume alcohol or drugs on the way
to the party? If yes, what, how much, and how do
you know?
65. What time did you get to the party?
66. What time did your wife get to the party?
67. Describe the party, in general terms.
68. Did you consume alcohol or drugs at the party?
69. If yes, what specifically?
70. Did your wife consume alcohol or drugs at the party?
71. If yes, what specifically, and how do you know?
72. Did you or your wife have any conflicts with other
people at the party?
73. Did you have a conflict with your wife at the party?
Part Two: The Transferable Skills of Litigation
151C
The law is the only profession which records its mistakes carefully, exactly as
they occurred, and yet does not identify them as mistakes.
Elliott Dunlap Smith
74. Did you spend most of the time at the party together or
apart?
75. What time did you leave the party?
76. Did you and your wife leave together or separately?
77. What did you do when you left the party?
78. Did you or your wife consume alcohol or drugs when you left
the party?
79. If yes, what and how much?
80. How much time elapsed between the end of the party and
the time you got home?
Event Questions
1. In your own words, describe what happened after you got
home to the time you were arrested.
2. What time did you get home?
3. What time did your wife get home?
4. What was the general attitude between you and your wife
when you got home?
5. If the general attitude was negative, when and why did it
become negative?
6. If the general attitude was positive, when and why did it become
negative?
7. What did you do when you got home?
8. What did your wife do when you got home?
9. Did you talk when you got home?
10. If yes, what did you talk about?
11. At what point did you first have an indication that there would
be a confrontation with your wife?
12. How did you react?
13. How did she react?
14. What provoked the confrontation?
15. What in your mind could have prevented the confrontation?
16. Was there physical contact between you and your spouse?
17. If yes, who initiated it?
18. How did the other spouse react?
19. What is the last thing said before there was physical contact?
20. Describe the physical contact.
21. What was the very first thing that happened after the physical
contact?
22. What was the very first thing said after the physical contact?
23. What happened the first five minutes after the physical contact?
24. What happened the next five minutes? (10 min.)
25. What happened the next five minutes? (15 min.)
26. What did your wife do immediately after the physical contact?
27. What did she say?
28. How did she react?
152
Essential Skills for Paralegals: Volume I
The law, unfortunately, has always been retained on the side of power: laws
have uniformly been enacted for the protection and perpetuation of power.
Thomas Cooper
29. At what point, if any, did you first become aware that the
police had been called?
30. At what time did the police arrive?
31. What is the first thing said to the police?
32. Did you say anything to the police? If yes, what?
33. Did your wife say anything to the police?
34. If yes, what?
35. What is the first thing you remember the police saying?
36. Did the police ask any questions of you? If yes, what?
37. Did the police ask any questions of your wife?
38. What did the police do?
39. How long were the police at the house?
40. Did the police tell you why you were arrested?
41. Did the police arrest your wife?
42. How did your wife react to your arrest?
43. Did the police read you your rights?
44. Did the police ask you any questions after reading you
your rights?
45. How did you respond to the police questions?
46. Where did the police take you?
Post Event Questions
1. Did the police ask you any questions at the station?
2. If yes, did you answer any questions or say anything?
3. Were you asked to sign anything? If yes, what?
4. Did you sign anything? If yes, what?
5. How long were you at the station?
6. Why were you released?
7. Did you post bail? If yes, what was the amount?
8. What time did you get out?
9. Were you given any instructions by the police? If yes, what?
10. Have you talked to your wife since the event?
11. If yes, who initiated the contact and what was said?
12. Where have you been living since the event?
13. Where has your wife been living?
14. Is there anything else you would like to tell me?
Wrap Up
“I want to thank you for your help. I will get a copy of the
transcript to you as soon as possible. If you think of
anything after you leave, feel free to call me. Here is my
card with my number on it. You can call me anytime with
any questions or concerns you might have. It will usually
be easier to get hold of me than the attorney. I will get
this information to the attorney and I’m sure he will be in
touch soon. Do you have any questions? OK, have a nice
day. Good-bye.”
Part Two: The Transferable Skills of Litigation
153C
Everybody is a potential murderer. I’ve never killed any one, but I frequently get
satisfaction reading the obituary notices.
Clarence S. Darrow, Interview, Chicago, quoted in N.Y. Times Magazine, 1937
Legal Junk Food
THE COURT (to defense attorney)
The court suggests to you that the questioning of this witness has
been exhausted. You have three more minutes. No more.
COUNSEL
I am sorry, Your Honor. I am sorry I have irritated you.
THE COURT
You are not irritating me at all, sir. You have a perfect right to make a
record.
COUNSEL
Your Honor, you yelled- you have yelled at me twice within the last
two minutes. You are scowling at me now. You told me I only have
three minutes left and then you tell me I am not irritating you. Your
Honor, I am sorry, but I can’t help when you yell at me but feel that I
have irritated you.
THE COURT
I am not yelling at you at all.
COUNSEL
Not at this moment you are not, Your Honor, but you have yelled at
me twice in the past two minutes.
THE COURT
Well, I don’t agree with you that I have yelled at you.
COUNSEL
You are pointing your fingers at me, Your Honor.
THE COURT
Just a moment.
COUNSEL
You are pointing.
THE COURT
I am not.
COUNSEL
You are pointing two fingers at me this very minute, Your Honor.
Would you please not point at me like that? You are still pointing your
fingers at me, sir.
THE COURT
Counsel, Counsel.
COUNSEL
Yes, Your Honor.
THE COURT
Please remember that you are addressing a Superior Court Judge and
behave yourself.
COUNSEL
I am.
THE COURT
Now, I am making my ruling and I said you may have three more
minutes. That’s all you have. Is that clear? Now, if you interpret that
as shouting you may do so. Now please proceed.
COUNSEL
Your Honor, I wonder if we might have a recess. Frankly, Your Honor,
I am upset. May we have a recess for a few minutes?
THE COURT
Well, that’s a reasonable request. How long a recess do you want?
COUNSEL
Oh, I think ten minutes would be enough.
THE COURT
Sir?
COUNSEL
Ten minutes.
THE COURT
Ten minute recess.
154
Essential Skills for Paralegals: Volume I
chapter 10
Citation Form
§
10.1 STATE CASES: LONG FORM
Authority is anything the court can or must use in
reaching its decision. In arguing the law, authority is
everything. When we rely on authority in a legal
memorandum, or any other form of legal writing, we
must tell the reader how to find that authority for him/
herself. To do this we rely on citation format. Following
is an introduction to The Bluebook: A Uniform System
of Citation, often called Bluebook citation form, the
most common system of citation.
Citation, or cite
A citation is a legal address.
Long Form Citation
a.
We have found a case titled Smith v. Jones. Always
underline or italicize the title.
Smith v. Jones, or Smith v. Jones,
b.
The case is located in volume 121, page 288 of
the publication titled Kansas Reports. State
“Reports” are official cites. Official publications
are published by (or under the authority of) the
state government. As a rule, the abbreviation for
official state reports are the old postal
abbreviations. Therefore, “Colo.” is the abbreviation
for the Colorado Reports. “Ariz.” is the abbreviation
for the Arizona Reports. What is the abbreviation
for the official report in your state?
c.
This abbreviation not only tells the reader what
publication the case is found in; it may also tell the
reader what court decided the case. The reader can
tell this because a state abbreviation by itself
indicates the case was decided by the highest court
in that state. If the case was decided by the state
appellate court, the abbreviation may have “App.”
following the state abbreviation. For example, “N.H.”
indicates the publication New Hampshire Reports
which contains cases from the highest court in New
Hampshire (New Hampshire Supreme Court). “N.H.
App.,” indicates the publication New Hampshire
Appellate Reports, which is a totally separate
publication from the New Hampshire Reports. “N.H.
Part Two: The Transferable Skills of Litigation
155C
App.” also tells the reader that the case was decided
by the New Hampshire Court of Appeals. Some
publication abbreviations differ, such as the New York
Miscellaneous Reports (Misc.). In any case, the
publication helps to identify the court.
Smith v. Jones, 121 Kan. 288,
d.
Many cases can be found in more than one place. In
other words, the exact same case, word for word, can
be found in different publications. When this is so, the
writer must inform the reader of all the cites which
contain the case. Since we have already cited the
official cite, we must now cite any unofficial cites (also
referred to as parallel cites). Unofficial publications
are private publishers printing cases instead of the
government.
e.
The major unofficial publisher of cases is West
Publishing Company which uses the West Reporter
System. West has divided the country into seven
regions. Since we are citing a case decided by a state
court, West will almost always publish that same case,
word for word, in one of its Regional Reporters. For
instance, Smith v. Jones is found in the Kansas Reports
(Kan.). Since West Publishing Co. has placed Kansas in
the Pacific Region, West will also publish the case in
the Pacific Reporter. The author must indicate which
series is being cited. “P.” stands for Pacific Reporter;
“P.2d” stands for Pacific Reporter, Second Series. Official
cites always come first, then cite the parallel cite.
Smith v. Jones, 121 Kan. 288, 369 P.2d 418
f.
The reader of the cite must be able to tell how
recent a case may be. For example, a case from 1918
may not carry as much weight as a case decided in
1983 (depending on the subject). The writer must
provide the year the case was decided in parentheses.
Smith v. Jones, 121 Kan. 288, 369 P.2d 413 (1979)
156
Essential Skills for Paralegals: Volume I
g.
We now have a complete state citation. The reader can tell
just by looking at the cite:
1.
2.
3.
4.
Who the parties were
What court decided the case
When the case was decided
Where the reader can find the case
EXERCISE 1
With the instructor’s help, list the Regions and the abbreviations
for the corresponding Reporters by West, for all series.
Pacific Reporter
First Series:_____ Second Series:_____ Third Series:_____
Atlantic Reporter
First Series:_____ Second Series:_____
South Eastern Reporter
First Series:_____ Second Series:_____
North Western Reporter
First Series:_____ Second Series:_____
South Western Reporter
First Series:_____ Second Series:_____ Third Series:_____
North Eastern Reporter
First Series:_____ Second Series:_____
Southern Reporter
First Series:_____ Second Series:_____
EXERCISE 2
You have found a case titled Lipps v. Kruger. The case was
decided by the North Carolina Supreme Court. It can be found
in volume 79, page 526 of the official publication. The unofficial
publication contains the case in volume 314, page 142, second
series. The year was 1967. Cite it.
§
10.2 STATE CASES: SHORT FORM
Some states have stopped publishing official reports. Assume
for the purposes of this exercise that Kansas stopped publishing
the Kansas Reports and, therefore, did not publish this case.
Our cite would read:
Smith v. Jones, 369 P.2d 418 (1979)
Is there anything missing from this cite?
Hint: Ask yourself Who? What? When? Where?
Part Two: The Transferable Skills of Litigation
157C
The reader must be able to determine what court decided
the case. This is done by noting the publication. If the
publication is “Wash.” (for Washington Reports), the court
is the highest court in Washington (Washington Supreme
Court). The rule is:
If you can’t tell what court decided the case by
looking at the publication, you must tell the reader
what court decided the case in parentheses.
Our cite should read (in short form):
Smith v. Jones, 369 P.2d 418 (Kan. 1979)
EXERCISE 3
You have found a case titled Evers v. Chance. It is found
only in the unofficial reporter, second series, volume
423, page 297. The court which decided the case was
the Tennessee Court of Appeals. The year was 1982.
Provide the correct cite.
Consolidated Reports
What court decided this case?
Smith v. Jones, 283 N.M. 583, 628 P.2d 493 (1988)
A few states have only one publication for both their
“Appellate” and “Supreme” courts. For instance, the
New Mexico Court of Appeals and the New Mexico
Supreme Court both publish their opinions in the same
book: the New Mexico Reports. If the court deciding
the opinion is the New Mexico Supreme Court, no
court is necessary in parentheses. If the court was is
the New Mexico Court of Appeals, the author must
inform the reader of the court in parentheses. If the
citation is to the New Mexico Appellate Court, the
citation would be:
Smith v. Jones, 283 N.M. 583, 628 P.2d 493 (N.M. Ct. App. 1988)
158
Essential Skills for Paralegals: Volume I
§
10.3 STATE CASES EXERCISE
Provide the correct citations for the following
1. The case you wish to cite was decided in the Texas Civil
Appellate Court. You have found a case in the Southwest
Reporter, Second Series, page 253, Volume 460. The
case was Noe v. Cain. 1979 was the date.
2. Your cite is Scooter v. Gabby. It was decided in the Nevada
Supreme Court & was found on page 428, Volume 260
of the unofficial publication, second series, and page 69,
Volume 177 of the official publication. The year was 1963.
3. You have found a case decided by the North Carolina Court
of Appeals in 1977, page 387 and volume 408 of the
official cite, page 127 and volume 644 in the unofficial,
second series. The case is titled Nimrod v. Beth.
4. Klein v. Yokum is found on page 370 and volume 532 in
the official publication from the Appellate Court of Alabama,
Civil Division. The unofficial cite is found on page 241,
volume 684, second series. The year the trial was held
was 1980. The year the opinion was written was 1981.
5. Your case is Milton v. Gregg. It is found on page 221 in
the official volume containing Colorado Supreme Court
cases, volume 352, and volume 629, page 29 of the
unofficial reporter, second series: It was decided in 1972.
6. The title of the case is In re Henderson. It was decided in
the Arizona Supreme Court in 1977. The official cite is
volume 386, page 118. The unofficial publication is volume
582, page 893, 2d series.
Citations-at-a-Glance
Refer to the foldout in
the back of the Manual
for assistance.
Part Two: The Transferable Skills of Litigation
159C
7. The title of the case is Mooreland v. Orbison. It was decided
in the Washington Court of Appeals in 1991. The official cite
is volume 264, page 854. The unofficial publication is volume
330, page 391, second series.
8. The title of the case is Loopis v. Dryer. It was decided in the
North Carolina Supreme Court in 1985. The official cite is
volume 292, page 452. The unofficial publication is volume
523, page 1032, second series.
9. The title of the case is Everly v. Jordan. It was decided in the
Colorado Supreme Court in 1983. The unofficial publication
is volume 582, page 893, second series.
10.The title of the case is Freemont v. Greenberg. It was decided
in the Tennessee Supreme Court in 1989. The unofficial
publication is volume 622, page 83, second series.
11.The title of the case is Smith v. Hansen. It was decided in the
Tennessee Civil Court of Appeals in 1991. The unofficial
publication is volume 783, page 290, second series.
12. The title of the case is Nixon v. Franklin. It was decided in
the Colorado Supreme Court in 1983. The unofficial publication
is volume 582, page 893, second series.
160
Essential Skills for Paralegals: Volume I
The censor believes that he can hold back the mighty traffic of life with a tin
whistle and a raised right hand. For, after all, it is life with which he quarrels.
Heywood Broun
§
10.4 FEDERAL CASES
§
10.5 U.S. DISTRICT COURT CASES
The majority of federal case law emanates from three
federal courts: the U.S. District Court, the U.S. Courts of
Appeal, and the U.S. Supreme Court. The same general
rules of citation apply, but instead of referencing state
courts, the citation must indicate the federal court that
authored the opinion being cited.
Cases decided by the United States District Court are
now published in the Federal Supplement (F. Supp.). The
Federal Supplement is published by West. There is no
official publication for U.S. District court cases.
Since it is impossible to tell which U.S. District Court
decided the case by looking at the publication (F. Supp.),
the court must be specified in parentheses. In citation
format, “D.” stands for District. Obviously, then, “E.D.”
stands for Eastern District, “W.D.” stands for Western
District, etc. The Western District of where? Each state
has at least one federal district: many contain multiple
districts. “D.Haw.”, for instance, stands for the U.S. District
Court, District of Hawaii. “E.D.N.J.” stands for the Eastern
District of New Jersey. What is your federal district and
its abbreviation?
____________________________________
Following is
Court case.
an example of a cite from a U.S. District
Akers v. Lewis, 462 F. Supp. 531 (D. N.M. 1976)
EXERCISE 4
You have found a case titled Simms v. Kastor. The
case was decided by the U.S. District Court in your
jurisdiction. It can be found in volume 598, page
256. The year the case decided was 1987. Provide
the cite.
Part Two: The Transferable Skills of Litigation
161C
§
10.6 U.S. CIRCUIT COURT CASES
Cases decided by the U.S. Courts of Appeal
(sometimes referred to as the U.S. Circuit Court)
are published in the Federal Reporter (F., F.2d or
F.3d). The Federal Reporter is published by West.
There is no official publication for U.S. Courts
of Appeals cases.
Again, since the reader is not able to determine
which Circuit Court decided the case by looking at
the publication, she or he must be told in
parentheses. “Cir.” is the abbreviation for Circuit.
It should be preceded by the number of the
appropriate circuit. (For example, “5th Cir.”) In what
Federal Circuit are you located, and what is its
proper abbreviation?
____________________________________
Following is an example:
Lewis v. Akers, 663 F.2d 261 (10th Cir. 1977)
EXERCISE 5
You have found a case titled Jenson v. Higgins.
The case was decided by the U.S. Circuit Court in
your jurisdiction. It can be found in volume 121,
page 1298, 3rd series. The year the case was
decided was 1996.
162
Essential Skills for Paralegals: Volume I
§
10.7 U.S. SUPREME COURT CASES
There are a total of three publications which
publish U.S. Supreme Court Cases. They are:
U.S. Reports (U.S.)
- the official publication
Supreme Court Reporter (S.Ct.)
-West Publishing Company
U.S. Supreme Court Reports, Lawyer’s Edition
(L.Ed. or L.Ed. 2d)
- Lawyer’s Cooperative Publishing
Cite U.S., then S. Ct. and L. Ed. 2d. Example:
Akers v. Lewis, 516 U.S. 331, 694 S. Ct. 265,
112 L. Ed. 2d 871 (1978)
EXERCISE 6
You have found a case titled Moore v. Withers.
The case was decided by the U.S. Supreme Court.
It can be found in volume 571, page 832 of the
U.S. Reports, volume 630, page 103 of the
Supreme Court Reporter, and volume 712, page
499 of Lawyer’s Edition, 2d series. The year the
case was decided was 1981. Provide the correct
cite.
NOTE REGARDING SHORT FORM
U.S. SUPREME COURT CASES
Bluebook citation form requires only the case title,
the official U.S. Reports cite and the year in
parenthesis. Students in this lesson are being
taught the long form in case the attorney, or court
rules, require the citing of parallel cites after the
official cite. Example of short form:
Akers v. Lewis, 516 U.S. 331 (1978)
Part Two: The Transferable Skills of Litigation
163C
§
10.8 OTHER FEDERAL CASE CITATIONS
While most federal case law will be found in the previously
mentioned publications, there are a few other sources the
researcher may have to cite from time to time. If you locate
a publication not mentioned here, the place to look for citation
assistance is The Bluebook, A Uniform System of Citation.
The researcher can also refer to the front of the volume being
cited. Most publications will inform you how they want to be
cited. Here are a few more examples of citations for federal
case law authorities:
Bankruptcy Reporter
Collects and reports full court opinions related
to bankruptcy.
Smith v. Jones, 287 B.R. 423 (D. Colo. 1983)
Federal Rules Decisions
Collects and reports full court opinions where a
court is applying a federal rule or regulation.
Smith v. Jones, 341 F.R.D. 938 (D. Neb. 1983)
Military Justice Reporter
Collects and reports full court opinions and rulings
of military tribunals.
Smith v. Jones, 125 M.J.R. 637 (D. Idaho 1983)
Federal Appendix
This is the newest of all reporters, starting
publication in 2002. The opinions published in
the Federal Reporter or the Federal Supplement
are included in those books because they have
been “designated for publication” by the court.
The Federal Appendix actually publishes those
cases not designated for publication. Some believe
that such cases do not have precedential value,
since the court from which the opinions came
does not find them fit for publication.
Smith v. Jones, 21 Fed. App. 583 (D. Colo. 1983)
164
Essential Skills for Paralegals: Volume I
§
10.9 FEDERAL CITATIONS EXERCISE
1. Your case is Bickers v. Beal. It is found on page 73 in the
reporter which cites U.S. District Court cases, volume 502. It
was decided in the Western District of Tennessee in 1978.
2. The title of the case is Sonders v. Brickmont. It is found in
the Federal Supplement. The volume is 783, and the page is
Citations
221. It was decided in 1989 in the District of Nevada.
at-a-Glance
Refer to the foldout
3. Your cite was written by a judge in the U.S. District Court in in
the Middle District of Tennessee The case is titled Minnie v. the back of the
Mickey, decided in 1968 and found on page 385, Volume 410. Manual
for assistance.
4. The title of the case is Jordan v. Summers. It was decided in
the federal trial court in the Eastern District of Tennessee.
The volume is 832, and the page is 364. It was decided in
1992.
5. Your case, Us v. Them, was decided by the U.S District Court
in New Mexico, is found on page 288 and volume 693. It was
decided in 1985.
6. The title of the case is Anton v. Everly. It was decided in the
federal trial court in the Western District of North Carolina.
The volume is 289, and the page is 141. It was decided in
1966.
7. You have found a case, Him v. Her, located in volume 344 of
the Federal Reporter, Second series, page 159. The case was
decided in 1956 in the 10th Circuit.
8 The title of the case is Trapper v. Pringle. It is found in the
Federal Reporter, 3d series. The volume is 88, and the page
is 1103. It was decided in 1988 in the 9th Circuit.
Part Two: The Transferable Skills of Litigation
165C
9. Your case is Hump v. Back. It is found on page 538 in the reporter
which cites Federal Court of Appeals cases, volume 655, second
series. It was heard in the 2nd Circuit in 1989.
10.The title of the case is Vorley v. Ingleborg. It is found in the
Federal Reporter, 2d series and was decided in the 6th Circuit.
The volume is 901, and the page is 896, second series. It was
decided in 1995.
11.The title of the case is Canterbury v. Cribbers. It was decided in
the 4th federal appellate court jurisdiction. The volume is 102,
the page is 358, third series. The year was 1998 in your
jurisdiction.
12. Your cite, Adam v. Eve, was found on page 313 and Volume 189
of the publication which contains U.S. Circuit Courts of Appeal
cases, second series. It was heard in the 4th Circuit on Dec. 19,
1956.
13. The U.S. Supreme Court has decided a case you wish to cite
titled Wimp v. Weasel. The official cite was in Volume 387, page
148; The Lawyer’s Co-op cite was on page 96, Volume 442 Second
Series, the West publication was in Volume 408, page 161. The
case was originally brought in Georgia. 1979 was the date of the
decision.
14. The title of the case is In re Stevens. It was decided by the U.S.
Supreme Court. The official cite is volume 342, page 728. The
Supreme Court Reporter is volume 424, page 628. The Lawyer’s
Edition cite is volume 276, page 1281, second series. The year
was 1985.
166
Essential Skills for Paralegals: Volume I
§
10.10 CITING STATE STATUTES
Although there are differences between statutes from one
state to another, there are many aspects that will be
universally true, from one state to the next.
How are statutes arranged?
Statutes are arranged by topic. For instance, typically, all
the statutes that deal with traffic laws are collected in the
same chapter or title.
How are statutes cited?
Statutes are not cited by volume and page number, as are
cases. Instead, statutes are arranged by either title and
section number, or chapter and section number.
Example of a state statute:
C.R.S. §13-22-221(1)(a) 1999.
This citation refers to Title 13, Chapter 22, Section 221,
Subsection 1a of the Colorado Revised Statutes. But be
flexible. Various states arrange the citation so that the
chapter, or title, and the section number are not immediately
evident. For instance: N.R.S. §200.110. This example
refers to Nevada Revised Statutes, Chapter 200, Section
110.
Note about Blue Book Statutory Abbreviations
While the vast majority of jurisdictions use the Uniform
System of Citation for citing cases, statutory citations in
many jurisdictions do not conform to the Bluebook
standards. For instance, the Bluebook form for the Nevada
Revised Statutes would be: Nev. Rev. Stat. §30.120 (1986).
The most often used method of Statutory citation in Nevada
is: N.R.S. 30.120.
If you are unsure how a statute is cited by the jurisdiction
where the matter is being heard, you will be best off using
the Bluebook form. This way, if the attorney asks you,
“Why did you cite it that way?” You will be able to say,
quite simply and authoritatively, “It’s Bluebook!”
Part Two: The Transferable Skills of Litigation
167C
He who is always his own counselor will often have a fool for his client.
Port Folio (Philadelphia)
§
10.11 CITING FEDERAL STATUTES
There are three places to find federal statutes:
U.S.C. (United States Code)
U.S.C.A. (United States Code Annotated)
U.S.C.S. (United States Code Service)
When researching federal statutes, always use either
the U.S.C.A., U.S.C.S., or both. The reason is that
while the U.S.C. contains only the statutes, the two
unofficial publications contain additional research aids.
When citing the United States Code, cite to the official
publication, even if researching in an unofficial
publication of the Code. (Do this by simply dropping
the “A” in U.S.C.A. or the “S” in U.S.C.S.) Remember,
all three contain the U.S. Code.
Following is an example of a federal statutory citation:
28 U.S.C. § 1204 (1984)
When citing statutes, both federal and state, each
subsection should be referred to within its own set of
parentheses. For example, if the above statute had
a subsection “a,” and a sub-subsection “3,” the cite
would read:
28 U.S.C. § 1204 (a)(3) (1984)
Session Laws or Statutes at Large
Session Laws, sometimes called Statutes at Large,
are hard bound publications that collect the acts and
laws passed by the state or federal legislature. Session Laws are collected chronologically and arranged
by year. Unlike the regular statutes, Session Laws
only accumulate the statutes that are passed or
modified in a given year. Therefore, the Session Laws
will consist of many volumes, each volume representing the acts and laws passed by the legislature
for that year.
168
Essential Skills for Paralegals: Volume I
§
1.
2.
3.
4.
5.
6.
7.
8.
9.
§
10.12 CITATION RULES OF THUMB
Cite all parallel cites.
Cite the official publication first.
Italicize (or underline) title.
Remember, if you can’t tell what court decided the case by the publication, you
must indicate the court in parentheses.
Cite the case in full the first time it is cited. Thereafter, indicate the title, use a
signal, and cite the exact page on which cite was found. For example:
Smith v. Jones, supra at 393.
Indicate both the start of the case and the cited page (pinpoint citation). For
example: Che v. Holt, 143 F.2d 235, 243 (4th Cir. 1970)
Supra means the case has been cited fully somewhere above.
id. means the case has been cited immediately above.
Infra means the case is cited fully below.
10.13 CITATION EXAMPLES
U.S. Supreme Court Cases (Short form):
Smith v. Jones, 119 U.S. 476 (1972)
U.S. Supreme Court Cases (Long form):
Smith v. Jones, 119 U.S. 476, 355 S. Ct. 932, 412
L.Ed.2d 828 (1972)
U.S. Courts of Appeals Cases:
Jones v. Smith, 365 F.2d 138 (4th Cir. 1971)
U.S. District Court Cases:
Smith v. Jones, 289 F. Supp. 726 (E.D.N.C. 1970)
Federal Statutes (always cite the official):
26 U.S.C. § 1278 (1976)
State cases (with official and unofficial cite):
Kite v. Mott, 241 Colo. 524, 448 P.2d 814 (1979)
State cases (with no official cite):
Jacks v. Morns, 526 P.2d 694 (Colo. App. 1981)
State Statutes:
Colo. Rev. State. § 19-22-302 (1984)
Court Rules:
H.R.C.P. 30(a)(1)
Part Two: The Transferable Skills of Litigation
169C
Diagram 10 (a) Citations At-A-Glance
State
(& Region)
Highest Court
Court of Appeals
Statutory
Publication Abbr. Publication Abbreviation Abbreviation
(& Court Abbreviation) (& Court Abbreviation)
Alabama (So.)
Ala. (Ala.)
Ala. App.(Ala. Civ. App.)(Ala. Crim. App.)
Alaska (P.)
P.2d (Alaska)
P.2d (Alaska Ct. App.)
Arizona (P.)
Ariz. (Ariz.)
Ariz. App. (Ariz. Ct. App.)
Arkansas (S.W.)
Ark. (Ark.)
Ark. App. (Ark. Ct. App.)
California (P.)
Cal. (Cal.)
Cal. App. & Cal. Rptr. (Cal. Ct. App.)
Colorado (P.)
Colo.* (Colo.)
Colo. App.* (Colo. Ct. App.)
Connecticut (A.)
Conn. (Conn.)
Conn. App. (Conn. App. Ct.)
Delaware (A.)
Del.* (Del.)
Del. Ch* (Del. Ch.)
D.C. (A.)
————————————— A.2d (D.C.)
Florida (So.)
Fla.* (Fla.)
So.2d (Fla. Dist. Ct. App.)
Georgia (S.E.)
Ga. (Ga.)
Ga. App. (Ga. Ct. App.)
Hawaii (P.)
Haw. (Haw.)
Haw. App. (Haw. Ct. App.)
Idaho (P.)
Idaho (Idaho)
Idaho (Idaho Ct. App.)
Illinois (N.E.)
Ill. (Ill.)
Ill. App. (Ill. App. Ct.)
Indiana (N.E.)
Ind.* (Ind.)
Ind. App.* (Ind. Ct. App.)
Iowa (N.W.)
Iowa* (Iowa)
N.W.2d (Iowa Ct. App.)
Kansas (P.)
Kan. (Kan.)
Kan. App. (Kan. Ct. App.)
Kentucky (S.W.)
Ky.* (Ky.)
—————————————
Louisiana (So.)
La.* (La.)
La. App.* (La. Ct. App.)
Maine (A.)
Me.* (Me.)
—————————————
Maryland (A.)
Md.* (Md.)
Md. App. (Md. Ct. Spec. App.)
Mass. (N.E.)
Mass. (Mass.)
Mass. App. Ct. (Mass. App. Ct.)
Michigan (N.W.)
Mich. (Mich.)
Mich. App. (Mich. Ct. App.)
Minnesota (N.W.)
Minn.* (Minn.)
N.W.2d (Minn. Ct. App.)
Mississippi (So.)
Miss.* (Miss.)
—————————————
Missouri (S.W.)
Mo.* (Mo.)
Mo. App.* (Mo. Ct. App.)
Montana (P.)
Mont. (Mont.)
—————————————
Nebraska (N.W.)
Neb. (Neb.)
Neb.App. (Neb. Ct. App.)
Nevada (P.)
Nev. (Nev.)
—————————————
New Hampshire (A.) N.H. (N.H.)
—————————————
New Jersey (A.)
N.J. (N.J.)
N.J. Super. (N.J. Super. Ct. App. Div.)
New Mexico (P.)
N.M. (N.M.)
N.M. (N.M. Ct. App.)
New York (N.E.)
N.Y. (N.Y.)
A.D. (N.Y. App. Div.)
N. Carolina (S.E.) N.C. (N.C.)
N.C. App. (N.C. Ct. App.)
N. Dakota (N.W.)
N.D.*(N.D.)
N.W.2d (N.D. Ct. App.)
Ohio (N.E.)
Ohio (Ohio)
Ohio App. (Ohio Ct. App.)
Oklahoma (P.)
Okla.* (Okla.)
P.2d (Okla. Ct. App.)
Oregon (P.)
Or. (Or.)
Or. App. (Or. Ct. App.)
Pennsylvania (A.) Pa. (Pa.)
Pa. Super. (Pa. Super. Ct.)
Rhode Island (A.) R.I.* (R.I.)
—————————————
S. Carolina (S.E.) S.C. (S.C.)
S.C. (S.C. Ct. App.)
S. Dakota (N.W.)
S.D* (S.D.)
N.W.2d (S.D. Ct. App.)
Tennessee (S.W.)
Tenn.* (Tenn.)
Tenn. App.* (Tenn. Ct. App.)
Tenn. Crim. App.* (Tenn. Crim. App.)
Texas (S.W.)
Tex.* (Tex.)
S.W.2d (Tex. Ct. App.)
Tex. Crim.* (Tex. Crim. App.)
Utah (P.)
Utah* (Utah)
—————————————
Vermont (A.)
Vt. (Vt.)
—————————————
Virginia (S.E.)
Va. (Va.)
Va. App. (Va. Ct. App.)
Washington (P.)
Wash. (Wash.)
Wash. App. (Wash. Ct. App.)
W. Virginia (S.E.)
W. Va. (W. Va.)
—————————————
Wisconsin (N.W.)
Wis. (Wis.)
Wis. (Wis. Ct. App.)
Wyoming (P.)
Wyo.* (Wyo.)
—————————————
Ala. Code § x (19xx)
Alaska Stat. § x (19xx)
Ariz. Rev. Stat. Ann. § x (19xx)
Ark. Code Ann. § x (Pub. 19xx)
Cal. (Subject) Code § x (Pub. 19xx)
Colo. Rev. Stat. § x (Pub. 19xx)
Conn. Gen. Stat. § x (19xx)
Del. Code Ann tit. x. § x (19xx)
D.C. Code Ann. § x (19xx)
Fla. Stat. Ann. § x (Pub. 19xx)
Ga. Code Ann. § x (19xx)
Haw. Rev. Stat. § x (19xx)
Idaho Code § x (19xx)
Ill. Rev. Stat. ch. x, para. x (19xx)
Ind. Code §x (19xx)
Iowa Code § x (19xx)
Kan. Stat. Ann. §x (19xx)
Ky. Rev. Stat. Ann. § x (Pub. 19xx)
La. Rev. Stat. Ann. § x (Pub. 19xx)
Me. Rev. Stat. Ann. tit. x, § x (Pub.19xx)
Md. Code Ann. (Subject) x (19xx)
Mass. Gen. L. ch. x, § x (19xx)
Mich. Comp. Laws § x (19xx)
Minn. Stat. §x (19xx)
Miss Code Ann. § x (19xx)
Mo. Rev. Stat. §x (19xx)
Mont. Code Ann. § x (19xx)
Neb. Rev. Stat. §x (19xx)
Nev. Rev. Stat. §x (19xx)
N.H. Rev. Stat. Ann. §x (19xx)
N.J. Rev. Stat. §x (19xx)
N.M. Stat. Ann. § x (Pub. 19xx)
N.Y. (Subject) Law § x (Pub. 19xx)
N.C. Gen. Stat. §x (19xx)
N.D. Cent. Code §x (19xx)
Ohio Rev. Code Ann. § x (Pub. 19xx)
Okla. Stat. tit. x, § x (19xx)
Or. Rev. Stat. §x (19xx)
x Pa. Cons. Stat. § x (19xx) (by West)
R.I. Gen. Laws § x (19xx)
S.C. Code Ann. § x (Pub. 19xx)
S.D. Code Ann. § x (19xx)
Tenn. Code Ann. § x (19xx)
Tex. (Subject) Code Ann. § x (Pub.19xx)
Utah Code Ann. §x (19xx)
Vt. Stat. Ann tit. x, § x (19xx)
Va. Code Ann. § x (Pub. 19xx)
Wash. Rev. Code §x (19xx)
W. Va. Code §x (19xx)
Wis. Stat. §x (19xx)
Wyo. Stat. Ann. § x (19xx)
* Indicates that the publication is no longer published. However, the volumes that were once published are generally still available.
State Citation Examples
Smith v. Jones, 245 Nev. 482, 574 P.2d 546 (1993)
Jones v. Smith, 425 P.2d 1140 (Colo. 1997)
(Long Form)
Smith v. Jones, 245 Ala. App. 482, 574 P.2d 546 (Ala. Crim. App. 1993)
(Long Form; with court clarification)
(Short Form; highest state court)
Jones v. Smith, 425 P.2d 1140 (Colo. Ct. App. 1997)
(Short Form; court of appeals)
Federal Citation Examples
Smith v. Jones, 245 F. Supp. 546 (D. Nev. 1993)
Jones v. Smith, 425 F.2d 1140 (4th Cir. 1997)
Hayes v. Keyes, 245 F.R.D. 546 (E.D.N.C. 1993)
Jones v. Smith, 425 B.R. 1140 (D. Utah 1997)
Smith v. Jones, 98 U.S. 113, 213 S. Ct. 54, 306 L. Ed. 2d 734 (1999)
42 U.S.C. §1309 (1983)
170
Essential Skills for Paralegals: Volume I
chapter 11
Trial Preparation
§
11.1 LITIGATION
A client has a legal problem. She determines that she
needs to hire an attorney. The attorney is hired to act
as her legal advocate. The process of advocating is not
simply the trial itself. In fact, most of advocacy is
performed in the pretrial stage. And it is during this
pretrial stage that a paralegal is most involved. The
vast majority of law suits filed with the courts never get
to trial. They are settled, dropped, or dismissed during
the pretrial stage. Thus, if a paralegal works hard
performing the pretrial tasks assigned to him or her, he
or she may be as responsible as the attorney for the
success, or failure, of the legal matter.
To that end, there are some concepts and techniques
that will help make you a more well rounded paralegal.
They include:
Stages of Litigation
Understanding the various stages of the trial
process and the paralegal’s role in each.
Trial Notebook
A trial notebook helps organize the attorney at
trial. The key to trial notebook preparation is
making sure all documents, notes, and evidence
is easy to access.
Evidence Preparation
In order to be presented at trial, evidence must
be admitted by the court. The attorney must
have the original evidence, and copies for all
parties.
The Arbitration Process
Arbitration is very similar to the litigation process
in most states, but is more informal and occurs
prior to the trial.
Advocacy
When a paralegal performs a task at the instruction
of an attorney on behalf of a client, the paralegal
becomes an advocate for the client’s interests.
Part Two: The Transferable Skills of Litigation
171C
§ 11.2 STAGES OF LITIGATION
Following are the stages of Litigation, with common
tasks that occur during each.
THE PRE-TRIAL STAGE
The pre-trial stage of litigation is the most crucial
stage, not just for the paralegal, but also for the
client. The paralegal does most of his or her work
during the pretrial stage. And for the client, 95
percent of cases never get to trial, meaning that
the success or failure of a case usually occurs during
the pretrial stage. And even those cases that go to
trial are often won or lost during the pretrial stage.
The pretrial stage lasts up until the opening
statements in the trial. Tasks include the following:
Interview Client
Many attorneys assign paralegals to conduct
the initial client interview, or make sure the
paralegal attends the first consultation with
the attorney. Practice your note taking skills
since the information gathered during this
task may guide the initial representative
process.
Draft Pleadings
Paralegals often create documents, such as
complaints, answers, and counterclaims. The
document is created for the attorney’s
signature on his or her behalf. A complaint
should not, of course, be drafted for a client
directly without the attorney’s supervision.
Interview Witnesses
A paralegal may be asked to interview
individuals who may, or may not, have
information relevant to the matter being
litigated.
Draft Discovery
Discovery is the pre-trial process of obtaining
documents and information from the opposing
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party. A paralegal is usually very involved in the
preparation of such documents. The attorney
should review the requests prior to sending them
to the opposing party.
Answer Discovery
When the opposing party sends discovery, the
paralegal often works with the client to provide
responses. Again, the attorney should review all
work prior to sending it back to the opposing
party.
Investigation
Finding relevant facts is part of the pre-trial
discovery process. There are also techniques for
finding relevant facts that are not part of the
discovery process. Discovery generally involves
obtaining information from the other party.
Obtaining relevant facts and information from
other sources involves law office investigation.
Draft Memoranda
After conducting research, a paralegal may create
an interoffice memorandum that informs the
attorney as to how cases and statutes apply to
the matter being litigated.
Set Hearing Dates
A paralegal may need to contact the court to set
a date for a hearing. Hearings are usually held
for the court to rule on a motion filed by one of
the parties. A hearing is different from a trial
because a hearing deals with one specific part or
step of litigation, such as a Motion to Suppress
Evidence.
Set Trial Dates
A paralegal is often the person to contact the
court and the other parties involved in the
litigation to set a date for trial. The most
frustrating part of setting trial dates may be
finding a day that is clear on the calendar of the
court and all parties.
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Draft Motions
Paralegals often create motions for the attorney.
A motion asks the court to rule on a procedural
matter, and is often accompanied by a trial
brief. The motion makes the request, while
the brief presents a legal argument attempting
the court to rule in that party’s favor.
Draft Trial Brief
A trial brief argues a legal point to the court.
It usually attempts to convince the court to
rule in favor of a motion that has been filed
with the brief. A brief is also called a Trial
Memorandum.
Correspondence
A paralegal is often asked to write letters to
the client, witnesses, and sometimes even
opposing counsel. Such correspondence should
only be created under the direction of your
supervising attorney.
Obtain Records
Paralegals may be asked to gather relevant
documents from companies and agencies.
These can include such items as hospital
records, criminal records, and employment
records. Get into the habit of having a client
sign several release forms at the start of
litigation authorizing your firm to obtain records
on his or her behalf.
Trial Notebook Preparation
A paralegal may be asked to collect all the
pleadings, discovery requests, discovery
responses, exhibits, witness lists, witness
questions, and other material that an attorney
may want access to at trial. This is called a
trial notebook.
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Legal Research
Legal research is the task of finding law
relevant to the matter being litigated, or
locating materials that will help assist the
attorney in preparing for trial. It is a common
task for many paralegals.
Arrange for Process
Process is the summons and complaint. A
paralegal may be asked to arrange for a noninterested party (usually a process server or
county sheriff) serve the documents upon the
defendant. This constitutes service of process.
Set Deposition
Setting a deposition means to contact the
witness that is being deposed, arranging a
time for the deposition, and noticing all parties
that the deposition will take place. This is
accomplished by sending out a Notice of
Deposition. All parties have the right to attend
and ask questions at a deposition.
Draft Deposition Questions
While a paralegal can not ask questions at a
deposition, it is not uncommon for a paralegal
to draft deposition questions for the attorney’s
benefit. A good place to start preparing such
questions would be any previous interviews
that had been conducted with the witness. In
addition research within form books in the law
library for discovery questions. You can even
modify interrogatory questions to become
deposition questions.
Digest Depositions
Depositions can be hundreds of pages long. A
paralegal may be asked to summarize each
page of a deposition to make relevant
information easier to access.
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File Maintenance
A paralegal should keep the client file in a
very organized state. This will be noticed by
the attorney. One good habit is to save
twenty minutes at the end of each day to
organize any files you have worked on that
day. Also, get in the habit of replacing any
documents removed from the file immediately.
This will keep those documents from being
misplaced.
Data Retrieval
Data retrieval is closely related to file
management. Whether documents are in the
file, separate folders, or elsewhere, they need
to be easily accessed.
Expert Bona Fides
Expert Bona Fides means proof of a witness’s
expertise. When an attorney decides to call
an expert witness to testify at trial, he or
she may want the paralegal to obtain the
expert’s resume and curriculum vitae (a listing
of any honors or publications associated with
the expert).
Arrange Subpoenas
When a witness is to be called at trial or for
a deposition, that witness should be
subpoenaed. Make sure to include a check
that includes witness fee payments and
mileage compensation for the witness.
Witness fees change from county to county.
Check your local court rules for witness fees
in your jurisdiction.
Skip Trace
If a witness, or even a client, is missing, the
paralegal may be asked to try to locate him
or her. This is skip tracing.
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File Court Documents
The paralegal may be asked to file pleading or
motions with the court, or to arrange for
documents to be filed. The paralegal should
make sure there are enough copies made so
that the court gets the original, and all parties
get a court-stamped copy. If the document is a
complaint, make sure to include a check for any
filing fees. Some courts require cover sheets be
filled out when filing a complaint.
Calendar Control
A paralegal may be asked to log appointments,
hearings and trials in the attorney’s calendar. If
so, be very accurate. One tip is that when you
log a new meeting in the calendar; place a sticky
note on that page alerting the attorney to the
new entry. If the attorney uses a computerized
calendar, place a sticky note on the attorney’s
screen with the new appointment information.
This may prevent an unpleasant surprise later.
Client Communication
A paralegal who communicates with clients is
very valuable to an attorney.
Don’ t
underestimate the importance of this task.
Attorneys are notoriously bad at client
communication, and the paralegal can make up
for that deficit.
Settlement Support
If the case settles prior to going to trial, some
of the provisions of the settlements may need
monitoring. For example, if the settlement
involves periodic payments, a paralegal should
calendar the payment dates and communicate
with the party to ensure payment has been
received.
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THE TRIAL STAGE OF LITIGATION
The trial stage starts at the opening statement, and ends
with the verdict by the jury.
Client Support
As the trial begins, the client will likely be nervous
and possibly even needy. Be sure to communicate
with the client and be open to answering questions,
or finding out the attorney’s answers to questions.
Draft Motions
While most motions are drafted and filed during
the pre-trial stage, it is possible that some motions
will be made during the trial.
Arrange Subpoenas
Witnesses are supposed to be identified during the
pre-trial stage. They should be subpoenaed prior
to trial, as well. But sometimes a rebuttal witness
will be called who was not on the original witness
list. That witness should also be subpoenaed.
Legal Research
During the trial an attorney may need a legal matter
or procedural issue researched. If so, it is probably
going to be a priority, so be thorough but prompt!
Coordinate Witnesses
Make sure the witnesses are all subpoenaed, and
call each witness the day prior to their anticipated
testimony. Make sure the attorney has her or his
witness questions in the trial notebook.
Prepare Evidence and Exhibits
If evidence is to be presented as an exhibit at trial,
copies must be made and each copy and original
are labeled.
Maintain Client File
Even during the trial, keep the client’s file in order.
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THE POST-TRIAL STAGE OF LITIGATION
The post-trial stage is after the verdict is returned,
including the appellate process.
Interview Client
Some attorneys want the client interviewed after
the trial to determine satisfaction with the
attorney’s representation. It is also a good way
to arrange for the return of client documents
and evidence.
Interview Jurors
It is becoming more and more common that
attorneys want the jurors interviewed after a
trial. The questions deal with what the most
effective and least effective parts of each side
were, and general attitudes about the trial
presentation. A paralegal is often asked to
conduct such interviews.
Draft Notices
If a party intends to appeal, a Notice to Appeal
must be filed within a specific period of time
(usually 10 days) and sent to both the court and
all parties.
Draft Briefs
If the client chooses to appeal, or if the other
party appeals, appellate briefs will be filed. A
paralegal may be expected to prepare drafts of
these briefs.
Transmit Record
If your client appeals, your firm will have a
limited amount of time (usually 30 days) to
arrange for the transmitting of the trial court
record to the appellate court.
Legal Research
A paralegal may be asked to research related to
issues on appeal.
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Draft Oral Presentation
An attorney may have the opportunity to make
an oral argument before the court of appeals.
If so, the paralegal may help in the research
and writing related to the oral presentation.
Maintain Client File
After the trial, the attorney may want the file
sanitized. This means that any notes or work
product should be removed from the file. The
file is then typically archived. Most states have
a minimum amount of time that a file must be
kept (usually 5 to 7 years). Also, any original
documents or exhibits should be returned to
the owners.
Calendar Control
Dates related to an appeal should be carefully
calendared.
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§
11.3 STAGES OF LITIGATION EXERCISE
Without looking at the previous page, with which stage or stages do the
following tasks belong with?
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Pre-trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Post-trial
Answer Discovery
Arrange for Process
Arrange Subpoenas
Calendar Control
Client Communication
Client Support
Coordinate Witnesses
Correspondence
Data Retrieval
Digest Depositions
Draft Depo Questions
Draft Discovery
Draft Memoranda
Draft Motions
Draft Notices
Draft Pleadings
Draft Trial Brief
File Court Documents
File Maintenance
Interview Client
Interview Witnesses
Investigation
Legal Research
Obtain Expert Bona Fides
Obtain Records
Prepare Exhibits
Set Deposition
Set Hearing Dates
Set Trial Dates
Settlement Support
Skip Trace
Transmit Record
Trial Notebook Prep
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§
11.4 TRIAL NOTEBOOK
A trial notebook is a collection of all the materials the attorney
will need at trial. It may include some or all of the following,
depending on the preference of the individual attorney:
•
All pleadings filed in the case. The pleadings
should be indexed, and organized
chronologically by date received.
•
All depositions, with any indexes or
summaries.
•
All discovery requests by both parties, and
the responses to those requests.
•
Any evidence the attorney will present at
trial, including the opening statement and
closing argument.
•
Any motions prepared in advance of trial
which the attorney anticipates filing during
the trial.
•
A section on witnesses, including the
following:
1.
2.
3.
4.
5.
6.
list of witnesses that the attorney
intends to call to the witness stand
the phone number, address, and any
subpoena served for each witness
potential questions for each witness
your attorney will call
a list of witnesses the other side
intends to call to the witness stand
a short description of the nature of
each witness’s testimony
potential questions for each witness
for the other side
Any witness or evidence list in the trial notebook should be
arranged in the order in which the witness or evidence will be
presented at trial. Trial notebooks vary greatly in form.
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Some attorneys may simply want the client file, very
well organized, in lieu of a trial notebook. Others
utilize three ring binders, or even expandable folders
& files. (Even ordinary cardboard boxes with individual
files are used.) Whichever form an attorney prefers,
the goal of having all relevant information at his or
her fingertips will remain a constant.
Ad Hoc Trial Notebook
While many paralegals wait until the end of discovery
to prepare a trial notebook, another technique is to
prepare the notebook continuously throughout
litigation. The paralegal creates a copy of each
document as it is received, including pleadings,
discovery, correspondence, evidence, etc. The original
document is placed in the file, and the copy in a
separate folder or box which the paralegal organizes
ad hoc.
Remember that for any evidence to be presented at
trial, the original will be presented to the court, and
you must prepare a copy for your attorney and the
other side.
§ 11.5
PREPARING EVIDENCE FOR TRIAL
An exhibit is a physical item that will be presented as
evidence at trial. Examples of exhibits include:
-
contracts
maps
photographs
charts
documents
computer generated graphics
A party must ask the court to “admit” an exhibit as
evidence. If the opposing party does not object, the
court will have the exhibit. If the opposing party does
object, the attorney asking that the item be admitted
must establish the admissibility of the exhibit. If the
exhibit is admitted, it will be assigned either a letter
or number, and be identified by party. For instance,
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Plaintiff’s Exhibit A, or Defendant’s Exhibit 12.
Most states have stickers or labels numbered or lettered
for the exhibits. The labels for exhibits to be presented
to the court, copies to the plaintiff, and copies to the
defendant will be of different colors. For instance, if a
contract is introduced as an exhibit:
- the original document prepared for the court
may be identified by a white label titled
Plaintiff’s Exhibit 8
- a copy of the document is prepared for the
plaintiff and is identified by a
corresponding blue label as
Plaintiff’s Exhibit 8
- a copy of the document is prepared for the
defendant and is identified by
a corresponding gray label as
Plaintiff’s Exhibit 8
Check with your firm’s office manager for the appropriate
labels, or contact a legal supply store for assistance.
You may also check the Rules of Evidence for your
jurisdiction for the appropriate titles of exhibits.
§
11.6 ARBITRATION
Arbitration is being used by many states as a method
to relieve the courts of some of the burden of the
recent increase in civil litigation. Because an
individual cannot be forced to give up his or her right
to a trial, they may be forced to go through the
arbitration process, but it will not be binding.
The losing party has the right to ask for a trial (by
filing a Motion for trial de novo), but there may be
penalties if the party loses again at trial. On these
pages we have presented an outline of a typical
arbitration system. Arbitration is designed to
encourage settlement or resolution of the matter
without going to court. The specific elements of
arbitration in your jurisdiction may vary.
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Requirements for a case to go to arbitration
Cases filed in the state trial court will generally be
arbitrated if the damages requested do not exceed a
minimum amount set by statute. The maximum
requested damages will vary, but a typical amount is
$40,000.
Most cases involve automobile accidents and neighbor
disputes, but other litigation matters are also eligible
for arbitration.
How is an arbitrator assigned to a case?
In most states, there is a Discovery Commissioner or
Master to oversee the process of arbitration. (The title
changes according to the state.) The Commissioner
assigns arbitrators to specific cases. In a typical system,
the Commissioner proposes five arbitrators to both
parties. Each party may strike, or remove, two of the
names from the list, leaving at least one accepted
arbitrator. The commissioner then assigns the arbitrator.
In some jurisdictions, the court performs the duties of
the Discovery Commissioner, assigning arbitrators and
settling procedural disputes.
What does the arbitrator do?
The arbitrator acts as a quasi-judge and is usually paid
by the parties. While the rules of discovery are generally
still in effect during the arbitration stage, the arbitrator
may limit discovery at his or her discretion. For instance,
an arbitrator may limit interrogatories during the
arbitration process to twenty questions instead of the
usual forty.
In some states, only attorneys are allowed to act as
arbitrators. However in some states paralegals, as well
as other non-attorneys, may act as arbitrators.
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What happens at an arbitration Hearing?
The arbitrator will set a hearing date. Both parties
will have a chance to present arguments during the
hearing, and to present evidence.
Witnesses may be called to testify at the arbitration
hearing. The examination during the hearing is similar
to examination during a deposition, with the rules
generally more lax than in-court examination.
Subpoenas for witnesses testifying at the arbitration
hearing are permitted but are generally not required.
Can a party appeal an arbitrator’s decision?
If a party is not satisfied with an arbitrator’s decision,
there must be a mechanism for “appeal.” This
mechanism is usually a Motion for Trial de Novo. This
motion requests a trial in court. But there is a catch.
In many states, if a party files a Motion for Trial de
Novo to reverse the arbitrator’s decision and that party
loses, that party may be ordered by the court to pay
court costs and the opposing party’s attorney’s fees.
To find the details of arbitration in your state, check
your court rules, including any Arbitration Rules. You
may also call the court clerk at the court in which the
action is being litigated.
§
11.7 THE PARALEGAL AS ADVOCATE
Advocacy is not simply argument on behalf of a client.
Advocacy is also the attempt to convince someone to
do something, even when that person may not have
any motivation to do so. The paralegal becomes an
extension of the attorney’s role as advocate during
the litigation process by obtaining information relevant
to representation.
When a consumer talks a store clerk into taking an
item back even though he doesn’t have a receipt, he
is being an advocate. When a woman talks her way
out of a traffic ticket, she is being an advocate.
And when a paralegal convinces a hospital records
clerk to let her view the un-sanitized notes in a patient’s
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file, the paralegal is being an advocate for her client.
The difference between a good paralegal and a great
paralegal is very often a matter of advocacy. If a
paralegal understands his or her role in advocacy, the
drive, focus, and persistence of representation is
greatly improved. Interestingly, developing good
advocacy skills is often a matter of attitude.
Attitude
You may like your client. You may despise your client.
You may think he is being abused. You may think he
is being abusive. Once you leave that office door to
interview a witness, go to the law library, or perform
any other task on behalf of a client, your feelings
about the client must be left behind. In fact, you are
not actually representing your client, but his or her
right to effective representation and a fair trial. And
your attitude needs to be this:
No one will stand in the way of information
that the client has a legal right to.
In fact, a paralegal should be self-righteous about
the client’s rights. When someone attempts to keep
a paralegal from obtaining information, it is not just
the client that is being abused, but the client’s
constitutional rights. It sounds extreme. It is not.
Example
At a court file clerk’s office in Jefferson County
Colorado, a handwritten sign was tacked up
stating that only attorneys were allowed to view
files. A paralegal was asked one day whether
he was a lawyer, and responded that he was
not. The clerk then advised him of the rule and
refused to allow him to view the file. The
paralegal politely objected, pointing out that
unless otherwise ordered by the court, all files
were public record. Getting no where, the
paralegal asked to speak to a supervisor. After
the paralegal stated his position, the supervisor
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simply pointed to the sign and asked, “Can’t you
read that sign?” The paralegal, who had
anticipated the problem, pulled out a folded statute
regarding public records, and asked in turn, “Can’t
you read this statute?” After a few quiet moments
reading the law, the supervisor instructed the clerk
to allow the paralegal to see the file in question.
The sign was gone a week later.
This is advocacy. No one should stand in the way of the
client’s rights. And you may have noticed another benefit
to advocacy: Advocacy can be fun! It can make a
paralegal’s job more interesting. It means that on any
given day, a paralegal may perform a task that benefits
a client, and affects the client’s life.
Having said all this, advocacy is a very individual thing.
What works for one paralegal may not work for another.
The views that are provided on the following pages should
be viewed as discussion points. You may agree with the
comments. You may disagree. But consider them. They
may be the key to your effectiveness as an advocate on
behalf of your client.
Following are several examples of paralegals who
understand the role of being an advocate.
Not everyone gets the idea of advocacy . . .
J.W. was a legal secretary when she enrolled in the
paralegal program. During the research part of the course,
she asked whether she would be able to research an
actual legal matter in which her firm was involved. The
firm’s client was an 18 year-old girl. She had worked
from the age of 12 to 16 for her father’s store. The
money she made was kept in an account for her college
education. When she was 16, her parents divorced,
forcing the young woman to choose where to live. When
she chose her mother, the father emptied the account
and refused to give the money to his daughter.
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The senior partner on the case assigned one of the
firm’s associates to assist in representing. But the
critical hearing date was coming up, and the associate
was pessimistic as to the client’s chances. J.W.
researched in several sources, but it wasn’t until she
searched in Am.Jur. Proof of Facts that she hit the
jackpot. The “Proof” stated that once a minor reaches
majority, any property or monies belonging to her must
be provided, and that to fail to do so would constitute
theft. Bingo. J.W. prepared a memorandum, including
case law, for the attorneys.
However, when she presented the memo to the
associate, he brushed it aside saying, “This is criminal,
and our case is civil. It doesn’t apply.” J.W. was very
disappointed, and didn’t understand why the authority
she had found couldn’t be used. If nothing else, she
thought, it could be used as a “hammer.” An incentive
to the father. “If the money isn’t returned, we may just
have to ask the District Attorney to look into this.”
So J.W. took a chance and presented the memo to the
senior partner. He read the memo, then asked, “Where
in the world did you get this?” J.W. told him “Proof of
Facts.” He responded, “Proof of what?” Then he
demanded that J.W. go to the law library with him and
show him the books.
On the way back to the office, the partner told J.W. that
as soon as they got back, she was to order a set of
Proof of Facts, that the associate was off the case, and
that she was being promoted to be the firm’s first
paralegal.
The price of advocacy . . .
Some paralegal students wind up helping themselves
as much as the client. N.F. was involved in a child
support matter of her own. Her ex-husband had not
paid a cent in child support for their five year-old son.
The attorney she hired was very expensive, being the
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former president of the local bar association. In spite of
this, N.F. was fairly unimpressed with the work the firm
was doing. About a week before the definitive hearing on
the matter, the associate who was assisting on the case
met with N.F. and gave her the bad news. They had received
a brief from the opposing counsel, and the cases they
cited appeared to work against N.F.’s efforts to collect
support at this late date. N.F. was furious. How could that
be right? She had hired these lawyers, they had worked
for almost a year on the case, and the best they can tell
her now is “It doesn’t look good?”
This was not acceptable. She took her copy of the brief
and started doing her own research. She discovered that
the two cases the opposing counsel relied on in the brief
were quoted out of context. Both cases actually worked
for her! She suddenly realized that the lawyers she was
paying hadn’t even read the cases for themselves! N.F.
prepared a memorandum, met with her lawyers, and
basically told them what to do. At the hearing, it was with
mixed emotions that N.F. heard her lawyer argue the exact
points she had prepared herself, as though they were the
product of his own work. She was certainly glad when the
judge ruled she was owed $25,000 of back support.
It was a fairly hollow victory. N.F. should never have been
forced to go to court, but the judge inexplicably denied her
attorney’s fees. When the attorney’s bill arrived a month
later, she was stunned: the fee for his “representation”
was $21,000.
Seeing the big picture, literally . . .
Construction defect paralegals often assist in site
inspection. That is, they visit the site in dispute, and
along with experts from both sides examine the alleged
defects. Sometimes they simply view the structure,
sometimes they observe “destructive testing” which
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involves an expert punching holes in walls, ceilings,
and floors to determine the techniques of construction.
M.R., a paralegal, was attending the site inspection of
a home involved in litigation. The claim was that the
largest room in the house, the dining area, was
inadequately ventilated. The area had vaulted ceilings,
and the expert for the plaintiff was rambling on about
how inadequate the design had been, to allow such a
large area to go unvented. In the midst of the experts,
attorneys, and clients present at the inspection, M.R.
raised a simple question. While admitting she was not
an expert, she asked whether the area might possibly
get better ventilation if a large framed picture was
moved. The picture, she noticed, was covering a vent.
The expert was dismissive, arguing that there couldn’t
be a vent there. After some scrambling to get a ladder
and carefully removing the large, and expensive, picture,
he declared that it was, indeed, a working vent. The
case was over, won by a paralegal.
Advocating for yourself . . .
Smart attorneys know the value of paralegals.
attorneys sometimes learn their value too late.
Bad
Everyone makes mistakes. Legal secretaries, judges,
paralegals, and yes, even attorneys make mistakes.
P.A. was very popular at her firm with all the staff and
the attorneys. Except, unfortunately, the attorney that
she was assigned to had taken a dislike to her. One
day, P.A. did something she had never done since being
hired by her firm: She forgot to calendar a hearing date
for a client. It resulted in an arrest warrant being issued.
The client called P.A. late one afternoon and was furious.
The firm had several attorneys, but the one P.A. worked
for had left for the day. P.A. felt terrible. She was
advised to prepare a motion to quash the warrant which
would be filed the next morning. P.A. spent a sleepless
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night anticipating what the attorney would do when she
found out. Of course the attorney was very upset. She
sent P.A. to court with the motion (which was fairly routine,
and was granted). Then P.A. didn’t see her the rest of the
morning. After lunch, P.A. was told to go to the managing
partner’s office. He closed the door behind her.
He informed her that what he was about to tell her had
nothing to do with the mistake she had made and that he
felt he needed to let her know that the attorney to whom
she was assigned had been fired.
It seems that the attorney had come into the managing
attorney’s office and demanded P.A. be terminated. The
managing partner knew P.A. was a fine worker, so he made
some inquiries and quickly learned that the attorney had
been abusive to P.A. for quite a while.
He apologized to her, told her she would be assigned a
new attorney, and gave her a raise.
Advocacy’s reward . . .
A paralegal may be involved in almost every aspect of the
litigation process. Research, investigation, interviewing,
preparing documents, setting up depositions, and many
more tasks. It is important to realize that as a paralegal,
the tasks you perform will almost certainly have an effect
on the outcome of the litigation process.
D.R. worked for a litigation law firm. One case involved
the firm’s representation of a 70 year-old man. His wife
had been killed in a car accident by a teenager traveling
seventy miles per hour in a thirty-five miles per hour zone.
When the case began, the only witnesses, besides the
defendant himself, were the two passengers who were
riding in the defendant’s car, his buddies. Of course, they
weren’t expected to be particularly helpful. During the
pretrial stage, D.R. eventually identified and interviewed
more than 70 potential witnesses. They ranged from a
minister who was scared to death to see the teenager
driving on the same road to students and teachers who
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would testify as to the dangerous driving habits of the
defendant.
Also, in researching the case, D.R. had discovered an
exception to the general rule that Plaintiffs in wrongful
death cases cannot be compensated for “loss of
consortium.” D.R. discovered case law establishing that
if the death occurs a significant amount of time after
the accident, compensation under such circumstances
is allowed. After about six months of working on the
case, the parties setup a settlement conference. When
the attorney walked into the settlement conference,
the insurance company for the defendant was offering
minimum compensation. Thanks in part to D.R., the
attorney walked into the meeting with seventy-one
potential witnesses, evidence that was very damaging
to the Defendant, and law that expanded the potential
liability of the Defendant.
By the end of the meeting, the Defense basically agreed
to full compensation for the requested damages. The
attorney, returning to the office, congratulated D.R.
These are the moments a paralegal lives for.
Part Two: The Transferable Skills of Litigation
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VOLUME
I
appendix
one
The Paralegal Glossary
AKA Also known as.
Abatement Reduction or elimination.
Abet To encourage.
Abrogation The end or modification of a law.
Abstract A summary.
Abut To border something. Nothing between.
Accede To accept.
Accessory To assist without participating.
Accord To agree.
Accrue To become due.
Acquiesce To silently agree.
Ad Damnum Clause The element of the complaint which asks for damages.
Also called Prayer for Relief or the Wherefore Clause.
Ad hoc Latin. For what is at hand. Of the moment.
Ad litem Latin. For the current legal matter.
Additur When the judge in a case adds to the amount a jury has awarded.
Typically, the judge will give the party who must pay the award the choice of
increasing the award, or the judge will grant the other side a new trial.
Adjudicate To judge.
Administrator One appointed by the court to handle an estate. If named in the
will, she or he is referred to as an executor.
Admissible Whether a jury will be allowed to hear evidence to determine its
value. It does not mean believable. The jury is free to believe or not believe the
evidence.
Admonition Advice or reprimand by a judge to a jury, attorney, party or witness.
Advance Sheet Pamphlet which comes out in advance of the hardbound volume.
Most commonly utilized by case law books and Shepard’s.
Adverse Opposed. Against.
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Adversary hearing A hearing where both parties are present to state their
respective positions.
Adverse judgment A judgment against the party represented.
Advisement Under review.
Advocate To represent.
Affiant A person making a representation, or statement, in writing under oath.
One who signs an affidavit.
Affidavit A written statement made under oath testifying to certain facts Affidavits
are under oath and if one lies under oath, including in an affidavit, she or he
is committing perjury.
Affidavit of Service, Return of Service, Proof of Service
A written statement where one swears that a party (or witness) has been served
with legal documents. It must contain the details of the service and is then filed
with the court to prove that the papers have been provided to the party in
question. For example if a summons and complaint have been served on the
defendant and at court on the response date the defendant has not appeared or
responded, the court will require proof that the defendant was, in fact, served
with those papers. That proof is the Affidavit of Service. (The reason this is
critical is that everyone has a constitutional right to be “noticed” as to charges,
claims, or allegations being made against him or her.)
Affirm To uphold or establish. Generally, an appellate court may choose to
uphold, or affirm, the trial court’s decision if the appellate court agrees with the
trial court’s reasoning.
Affirmative Defense When a defendant affirms or admits that some allegation
did occur, but defends the act by explaining that the fault lies somewhere else.
(Does not require a response by the plaintiff.)
Aforethought In advance of.
Aggravated assault A more serious form of assault. Often means assault with
a deadly weapon.
Aid and Abet To assist or encourage someone to commit a crime.
Alien Not a citizen of this country.
Alienation To transfer or dispose of.
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All fours Relevant. Two cases, your client’s and one found in the law library,
which are significantly similar. Also referred to as on-point.
Allege, or allegation To charge, or claim.
Allocate, or allocation To divide or assign.
Alternate juror A juror who sits through the trial, but does not deliberate
unless another juror has been removed.
Alternate writ Similar to a show cause order. A court’s demand that a person
appear and explain something, such as absence from a previous hearing.
Ambulance chaser A lawyer who solicits work from those recently injured or in
dire need of representation.
Ambulatory Movable
Amend, or amendment To change or alter.
American Law Reports (A.L.R.) An annotated reporter by Lawyer’s
Cooperative Publishing Company.
American Jurisprudence, 2d National legal encyclopedia by Lawyer’s
Cooperative Publishing Company.
Amicable Friendly. Agreeable.
Amicus curiae “Friend of the court.” As in an amicus curiae brief, a legal memo
filed by a non-party who has information or opinions which may be instructive
to the court.
Amnesty To wipe out or clear a record.
Amortization Paying off a debt in equal, regular payments.
Analogous Very similar.
Ancillary Supplemental, but connected.
Annex Attach or attached.
Annotation A note or commentary. Often refers to American Law reports, an
annotated reporter.
Annuity A fixed sum of money paid to a person at fixed times, such as yearly.
Answer The document which responds to the allegations contained in the
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Complaint. Must be filed in a specific period of time after service has been
effectuated. The Answer may also contain the defendant’s Affirmative Defenses,
Counterclaims, and Cross Claims, if there are any.
Ante Before.
Antenuptial agreement A contract between two persons about to marry
regarding property settlement in the event of divorce.
Antitrust acts Statutes passed to discourage monopolistic practices.
Appeal To ask a higher court to determine the fairness of the result of a trial.
Appearance The formal representation in court on behalf of another.
Appellant or Petitioner Usually, the party who loses at the trial level generally
initiates the appeal and is the appellant.
Appellee or Respondent The party who wins at the trial level. The party whom
the appeal is brought against.
Appellate brief A document filed with an appellate court arguing whether a
trial was fair. The appellant, or petitioner, will argue that the trial court erred.
The appellee, or respondent, will argue that there were no errors, or if there
were, they did not affect the fairness of the trial. This is often referred to as
harmless error.
Appellate Level Courts There are two levels of courts; trial level and appellate
level. Trial level courts are where the action is initiated and facts and evidence
are presented There is one judge and often a jury. Appellate courts review trial
court decisions by reviewing the record to determine whether the trial court
erred. Appellate level courts have multiple judges. There are two kinds of appellate
level courts; the Court of Appeals, or Appellate Court, (state & federal) and the
Supreme Court (state & federal).
Appraisal Estimate of value or worth.
Appreciate Increase in value.
Appropriation Setting aside of funds by legislature.
Arbiter, Arbitrator One who acts as a referee in a dispute, usually arbitration.
Arbitrary Done in bad faith, or without good cause.
Arbitration Settling a dispute out of court by presenting arguments to a person
acting as arbitrator. The arbitrator makes the decision, which may or may not be
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binding, depending on the situation. For example, some states have mandatory
arbitration, meaning that before going to court, parties must submit to arbitration.
State ordered mandatory arbitration cannot be binding, however, since a court
cannot refuse a party’s right to a trial in court. There are examples of binding
arbitration. For instance, in major league baseball, if a player and an owner
disagree on a player’s value, they may go to an arbiter, whose decision will be
binding and may not be appealed.
Argumentative Stating not just facts, but also conclusions. Usually controversial.
Arraign, arraignment To bring a person before a judge to be informed of
charges and to enter a plea.
Arrears Money owed which is past due.
Arrest The seizure of a person by the government to answer to criminal charges.
Arson Unlawful burning of a building or structure.
As is Sold without guarantee or representation as to condition.
Ascendants Parents, grandparents, great-grandparents, etc.
Asportation Taking or carrying something unlawfully.
Assault The threatening by word or movement sufficient enough to make the
person threatened feel in danger. The elements of assault are:
an act- conduct by the defendant which creates a reasonable apprehension or
belief in the plaintiff of an imminent battery by the defendant;
an intent- an intention by the defendant to cause this apprehension in the
plaintiff; and
causation- the plaintiff’s apprehension(s) must have been caused by the direct
or indirect actions of the defendant.
Assess To set value.
Assets Money, property, and anything else of value.
Associate Non-partner attorney.
Associate justice All justices on an appellate court except chief justice.
Assumpsit Latin for “He promised.” Claim of an obligation.
At bar Presently before the court.
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At issue A question to be answered by the court.
Attachment Formal seizure of person or property.
Attainder The wiping out of civil rights due to conviction of a felony, or the
sentencing to death, allowing the government to seize property.
Attest To swear to.
Attorney-Client Privilege A client can refuse to testify as to communication
between the client and his or her attorney. The client can also prevent her/his
attorney from testifying.
Attorney Work Product Doctrine by which material collected in anticipation of
litigation by an attorney is not required to be produced by way of discovery.
Attractive nuisance Creating an inviting or tempting atmosphere around a
source of potential danger.
Authentication Certifying that a document is official.
Authority The power to take some action. Also that which is relied upon in
making a legal argument, such as primary or secondary, mandatory or persuasive
authority.
Aver Allege or assert.
Avoidance To evade.
Avowal Offer of proof.
Award To grant money.
BNA Bureau of National Affairs, a private publisher of legal materials.
Bad faith To enter into an agreement with no intention of fulfilling the obligations
of that agreement.
Bait and Switch Unlawful advertising technique whereby one item is publicized,
but when the customer appears, another item is offered.
Bankruptcy Under authority of the Federal Bankruptcy Act, individuals and
companies may be relieved of most of their debt. Chapter 7 is the total discharge
of debt, Chapter 11 is reorganization of a business’s debt, and Chapter 13 is
reorganization of an individual’s debt.
Battery The intentional physical intrusion upon the body of another.
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Bench Judges are collectively referred to as “the bench.”
Beneficiary A person or organization who benefits, usually money.
Bequeath To grant or give.
Best evidence rule Doctrine whereby the original, or best available, evidence
should be presented at court.
Beyond a reasonable doubt Burden of proof in a criminal case. A jury must be
fully assured within their own minds that a person committed a crime.
Bias The potential for unfairness due to preconceptions, lack of open-mindedness,
or prior involvement in a case.
Bifurcate To separate.
Bigamy To be married to two or more people at the same time, which is a
crime.
Bind To hold over. A legal obligation.
Black letter law Basic legal principles
Bluebook Common name for A Uniform System of Citation.
Blue law A law preventing certain activities on a Sunday.
Boilerplate Standardized legal language, often referred to as legalistic.
Bona fide Good faith.
Breach To break or fail to fulfill a promise or commitment.
Breach of Contract Failure to fulfill written or oral agreements.
Brief A written argument. Also, to brief a case is to provide a summarization of
the case’s facts and analyze it as to a specific legal issue.
“But for” rule “But for” the actions of the defendant, the plaintiff would not
have suffered damages. Required to establish negligence.
CA Court of appeals. An abbreviation often used in such materials as digests.
CCA Circuit court of appeals. An abbreviation often used in such materials as
digests.
CCH Commerce Clearing House. A publisher of legal materials.
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CFR Code of Federal Regulations.
C.J.S. Corpus Juris Secundum. A national legal encyclopedia by West Publishing.
CPA Certified Public Accountant.
Camera Room or chambers. If arguments are heard in camera, it means the
arguments will be heard in the judges chambers.
Canon A doctrine, principle, rule or law.
Capricious An act not based on ration or law.
Caption Heading of a legal document. The caption of a pleading contains the
court, parties, and title of document. The caption of a memorandum contains
who the document is to, from, what it is about, and the date. The caption of an
opinion (case) consists of the title (most likely the parties involved), the court
issuing the opinion, the docket number, and the date of the opinion.
Carnal knowledge Sexual intercourse.
Cartwheel A legal research technique designed to locate relevant topics within
an index.
Case Refers to a legal dispute. It sometimes means the matter an attorney or
paralegal is working on for the client, such as in “ Our client’s case is going to
trial next week.” Other times, a case may refer to an opinion, which is a written
decision of the court such as Roe v. Wade.
Casualty Injured, harmed or damaged.
Cause of Action A lawful reason to bring legal action.
Caveat A warning. It means beware.
CD-ROM Compact Disk Read-Only Memory.
Cede To transfer or assign.
Censure A formal reprimand.
Certificate of Mailing (COM) When a document is filed with the court, or when
discovery is sent to a party, a certificate of mailing is usually attached. It attests
to the fact that a true and correct copy of that document was sent to all parties
involved in the litigation. It should be signed by the person who actually places
it in the mail, although some states require an attorney signature on the Certificate
of Mailing. The court will usually consider the certificate a good faith attempt to
notify other parties even though it is not sworn to under oath. Often replaced
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with a Receipt of Copy (ROC).
Certiorari Latin term meaning to make sure or certain, often related to the
process by which an appeal is taken from one level of appellate court to the
next highest level of appellate court. Also see writ of certiorari and appeal.
Chain of evidence When police or prosecutors attempt to preserve the chain
of evidence, they are attempting to guarantee the accuracy and value of the
evidence, insuring that the evidence has not been tampered with or contaminated.
Challenge To object.
Chambers A judge’s office.
Charge To make a claim or allegation. May also refer to a judge’s instruction to
the jury.
Charter An organizational beginning document, establishing a basic structure
of the organization or local government.
Choate (pronounced ko-ate) To be complete. Will stand up against any future
claims.
Circuit A geographical or subject- matter related jurisdictional court boundary.
Circumstantial evidence Evidence of one fact which requires an inference to
establish another fact.
Citation, or cite An address to a written reference, such as Smith v. Jones, 921
P.2d 934 (Colo. 1990). When used in this manner, it may be referred to as a cite.
May also refer to a summons or call to appear, which is why many states refer to
traffic tickets as citations.
Cite checking To ensure the accuracy of citations within a legal document, both
as to form of the cite and the substance of the quote.
Cited material Material mentioned (cited) by other material, such as a case
being cited in another case.
Citing material Material which mentions, or cites, other material, such as a
case citing another case.
Civil Law A violation of civil law does not directly harm the community, and
therefore, the person harmed must sue the violator.
Claim To demand, assert or allege.
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Class action A lawsuit brought on behalf of a group or class of plaintiff’s, such
as suing the company which manufactured asbestos to obtain monetary damages
for all those harmed by the substance.
Clayton Act A 1914 law extending the Sherman Act’s prohibition against
monopolies.
Co-defendant More than one defendant being sued in the same legal action.
In a civil case, the co-defendant may be named in the original complaint, or, if
the defendant files a Third Party Complaint, the third party becomes a codefendant.
Codicil A supplemental modification to a will.
Codified To arrange statutory material by topic.
Coercion To compel unfairly or force.
Cohabitation To live together.
Collateral A side issue, may or may not be relevant to the main issue, but
somehow connected. Also may refer to money or property used to secure a
loan.
Colloquy A private discussion between lawyers and the judge.
Collusion To conspire, to cheat or defraud.
Common law Judge-made law, or case law. May also refer to laws derived from
the English common-law system.
Comparative negligence Doctrine where the amount of damages awarded is
proportional to each party’s level of negligence. For instance, if the jury awards
$100,000 damages, but determines that the plaintiff was 25 percent responsible
due to some of her own negligence, the plaintiff will receive $75,000 dollars.
See contributory negligence.
Compensatory damages An award of money to compensate for actual monies
lost, as opposed to punitive damages.
Competent In legal terms, this means qualified. For a witness to be competent
to testify, he must:
•
Understand the obligation to tell the truth
•
Have the ability to communicate
•
Be knowledgeable as to the subject of his testimony
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Complaint The pleading which initiates the legal action and sets forth the general
allegations against the defendant. The plaintiff does not argue his entire case in
the complaint, but sets forth his claim in a skeletal fashion. The Complaint is
usually served with the Summons. In some states, a complaint is called a Petition
or Motion for Judgment.
Compulsion By force or duress.
Concur To agree.
Concurrent Together.
Concurring Opinion Opinion of one or more judges which agrees with the
results of the majority, but arrives at that result for differing reasons.
Consent To agree voluntarily.
Consequential damages Indirect damages. Sometimes called special damages.
Conservator Someone appointed to oversee another person and his or her
estate because that person has been declared incompetent.
Consideration Each party must receive something of value, in other words
consideration, at the signing of a contract. Without consideration for both parties,
a contract is invalid.
Consortium Often referred to as the marital relationship, but may also refer to
the relationship between other individuals, usually family members. Loss of
consortium is the loss of that relationship.
Conspiracy Two or more persons plotting an unlawful act.
Constitute To make up or consist of.
Constitution The fundamental and highest form of law.
Constitutional Not in violation of the principles established by the Constitution.
Constructive Inferred. Implied. Constructive desertion, for instance, means
that by the actions or inactions of one, another has been forced to leave, such
as when a husband beats his wife.
Contest To challenge or oppose.
Contingent Jurisdiction When multiple courts have potential jurisdiction over
a legal dispute.
Continuance To postpone.
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Contingent fee Fee for attorney dependant on a percentage of the amount, if
any, awarded at court.
Contract A lawful agreement between two or more parties.
Contributory negligence Doctrine where the defendant can escape liability by
establishing at least some negligence on the part of the plaintiff. See comparative
negligence.
Controvert To dispute.
Conversion To transfer. Often referring to the preventing of the rightful use of
property by its owner.
Conveyance Transfer of title of property.
Corroborate To verify or confirm.
Corpus Juris Secundum (CJS) A national legal encyclopedia by West Publishing
Company.
Counsel or counselor Attorney.
Count Each separate charge or claim.
Counterclaim A claim by the defendant against the plaintiff. It is usually
contained in the defendant’s Answer. Since, in function, it is equivalent to the
defendant’s Complaint back to the Plaintiff, it requires a response by the plaintiff
to any new allegations made. (See Reply)
Covenant Agreement or promise.
Creditor One to whom money is owed.
Criminal Law A violation of criminal law is viewed as harming the community,
and therefore, the state acts against the violator. Penalties for violating criminal
law include fines and imprisonment. One can be sued civilly and charged
criminally.
Cross-claim A claim made by one co-defendant against another The most
common form of a Cross Claim is the Third Party Complaint. While it is often
contained in the Answer, the Third Party Complaint can sometimes be a separate
document.
Cross-examination After direct examination, the other party may cross-examine
the witness, but must limit her/himself to the topics brought up under the direct
questioning.
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Cumulative A supplement that combines previous supplements with new
material. It may take the form of a pocket part of a separate softbound pamphlet.
See supplement.
Curia Latin for court.
Curriculum vitae Latin. Resume.
Curtilage An area surrounding a house used for household purposes.
DBA Doing business as.
Damages An award of money paid to compensate for harm done. Also, the
“harm” itself.
Debtor A person who owes money.
Decedent Dead person.
Decennial Digest A West Publisher’s digest collecting all digested material
over a ten year period.
Decision Opinion or case. Written opinion of the court.
Declaratory judgment Judge’s determination of specific rights or obligations
of parties without awarding damages or granting relief.
Deep pockets Ability to pay large amount of damages.
De facto In fact. An actuality.
Defamation The diminishing of one’s reputation or standing in the community.
Libel is written defamation. Slander is spoken defamation.
Default To voluntarily refuse to respond or act.
Default judgment When judgment is based on the fact that one of the parties
fails to appear or respond within the statutory amount of time.
Defendant The party against whom an action is brought.
Defraud To cheat.
Delectus personae Latin for choice of persons. Imparts the right of one partner
to approve or choose other partners.
Deliberate To consider.
Delinquency An omission or failure.
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Demand A forceful claim.
Demurrer A motion to dismiss without answering specific allegations in the
complaint. Argues that even if those allegations are true, a cause of action has
not been established. Most states now prohibit demurrers; however, attorneys
still use the phrase in a manner synonymous with a motion to dismiss.
Depositions Oral questions which must be answered under oath Depositions
usually take place out of court, most often in an attorney’s office with a court
reporter transcribing the testimony. Attorneys from both sides must be present
and both will have the opportunity to ask questions. Depositions can take place
for the purpose of questioning the opposing party or for the purpose of questioning
witnesses. Video taped and audio taped depositions are sometimes taken.
Deposition Digest (or Summary) Taking each page of a deposition and
providing a summary of material on that page.
Deposition Index Listing of the most critical events, people, places, or things
in alphabetical order and indicating what pages those matters are referred to in
the deposition.
Detainer Unlawful keeping of another’s property.
Dictum Remarks by the judge not part of specific orders or rulings.
Digest West Digests are collections of headnotes arranged in topical order.
Also, to digest a deposition is to summarize each page.
Direct Evidence Evidence (usually from personal observation) that tends to
establish a fact without the need of an inference.
Direct Examination Questioning the witness first. The party that calls the witness
to the stand conducts the direct examination.
Disbar To take away an attorney’s right to practice law.
Discharge To release.
Disclosure To make available to the other side.
Discoverable Material or information which must be disclosed to the other side
during the discovery process.
Discovery The devices whereby one party obtains relevant information on a
case from the other party. The method which attempts to even the playing field
between parties by exposing all relevant facts upon which the court will ultimately
base its decision. Discovery is generally between the parties and does not directly
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involve the court, although the Certificate of Mailing for each document is
often filed. Methods of discovery include Interrogatories, Request for
Admissions, Request for Production of Documents, Request for Mental or
Physical Examination, and Depositions.
Dismissal without prejudice When a court dismisses a case due to a procedural
error. The parties are free to bring the case again once the procedural errors are
corrected since the court has not “made up its mind” about the case.
Dismissal with prejudice Dismissal of a case that may not be re-litigated
since the court has found cause not to allow the action to proceed.
Disposition Final determination.
Disqualify To declare unsuitable.
Dissent To oppose or disagree.
Dissenting Opinion Opinion which disagrees with the majority.
Distinguish To point out differences.
Distress Forced or troubled.
Diversity of citizenship A federal court usually has jurisdiction only in cases
involving federal questions or when the U.S. is a party. The major exception
occurs when the parties involved in litigation are citizens of different states and
the damages requested exceeds a minimum set by federal statute, which is
currently $75,000.
Docket A list of cases the court is to hear on a given day.
Domicile A permanent home.
Donee Person receiving a gift.
Donor Person making a gift.
Duress Unlawful pressure.
Duty An obligation.
ED Eastern District.
EEOC Equal Employment Opportunity Commission.
Earnest money A deposit paid to show good faith.
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209C
Effects Personal property.
Emancipation To declare free.
Embezzlement To secretly and fraudulently take money.
Eminent domain The power of the government to take possession of private
property for public usage when it is deemed in the best interest of the community
as a whole. Consent of the private property owner is not required, but just
compensation must be paid.
En Banc When the entire court sits to hear a case. Tends to indicate a higher
degree of importance in the case.
Enact To create or put into effect.
Enacted law Law created by a legislature.
Enjoin To require.
Enlarge To extend.
Equitable Just or fair.
Equity Value of property minus all debts against it. Also, courts in
equity refer to the determination of legal disputes which have no controlling
statutory authority.
Erratum Mistake.
Establish To prove.
Estate The property and monies controlled by a person.
Ethics Standards of behavior.
Evidence That which tends to prove or disprove a fact in issue.
Ex post facto Latin. After the fact.
Examination Questioning witnesses, generally under oath.
Excuse To dismiss.
Executive Branch The branch which enforces, or executes, the law. The highest
Federal entity is the President. The highest State entity is the Governor.
Executor One who is named in a will to administer an estate.
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Executory Incomplete. Still to be completed.
Exemplary damages Same as punitive damages.
Exemptions Every state sets limits on percentages or amounts which can be
attached. These are called exemptions. For example, in some states, only up to
seventy-five percent of a judgment-debtor’s salary can be garnished. The
remaining twenty-five percent is exempt.
Exhibit Something presented as physical evidence at trial.
Exonerate To clear.
Ex parte communication To communicate with the court without notifying the
other side as to the contents of that communication, which is generally not
allowed.
Ex parte hearing A hearing at court where only one party is present. Temporary
Restraining Orders (TRO) are heard ex parte. A garnishment is an example of
an ex parte action.
Expert witness A witness called to testify about a specific area relevant to the
trial, such as a fingerprint expert, or a doctor. An expert must be qualified by
the court.
Express Clearly defined.
Extortion Illegally compelling a person to pay money.
F. or F.2d or F.3d Federal Reporter Series
F.R.C.P. Federal Rules of Civil Procedure
Fact pleading Some states require a listing in the complaint of all major facts
anticipated to be in dispute at trial. These are referred to as fact pleading
states. See Notice pleading.
Failure of consideration Failure of one party to receive value at the time a
contract is entered into.
Feasance Doing an act.
Federal National.
Felonious An act intended to commit a serious crime.
Felony A serious crime.
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211C
Fiat Latin for “let it be done.” Command.
Fiduciary A person or entity responsible for the money, property, or well-being
of another. Imparts a higher standard of care due to the potential exposure of
the client.
Followed Used as precedence.
Forbearance To refrain.
Forensic Having to do with the law.
Foreseeability When a consequence to an act should have been considered.
Forfeit To give up the right. To lose.
Form book Legal reference book with checklists, forms and examples of
documents and procedures. A how-to legal book.
Fornication Sexual intercourse.
Fortuitous Accident, or by chance. Does not indicate good fortune or luck.
Fraud Cheat.
Frivolous Worthless. Legally groundless.
Full faith and credit The doctrine by which one state will honor the laws and
judgments of another state.
GPO Government Printing Office.
Gag order A judge’s order that prevents parties and attorneys from publicly
discussing a matter before the court.
Garnishment Attachment of part of a judgment-debtor’s salary is automatically
turned over to the judgment-creditor until the judgment is satisfied. A judgment
is required in order to garnish wages.
Grand Jury Special jury impaneled to hear evidence from a prosecutor and
determine whether there is enough evidence to return an indictment against a
defendant to bring him to trial.
Guilty Responsible for a crime.
HB House bill.
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Habeas Corpus Latin for “You have the body.” A Writ of Habeas Corpus demands
the bringing of a person to court.
Headnote Summary of a portion of a case provided by the publisher at the
beginning of a case.
Hearsay Rule In-court testimony of an out-of-court statement made by someone
other than the in-court witness for the purpose of establishing the truth of
matters asserted. In determining hearsay, the question of credibility lies with
the out-of-court asserter.
Exceptions to the Hearsay Rule
Hearsay is inadmissible in court unless it falls under one of the hearsay
exceptions. These exceptions are found in the Rules of Evidence.
Holograph or holographic Handwritten.
Homicide Taking the life of another. May be murder, manslaughter, or not a
crime at all.
Hon. Honorable.
Honor To abide by.
Hornbook A book, usually for law school students, regarding a specific, individual
area of law.
Hostile Against. Adverse.
Hung jury A jury which cannot reach a verdict.
ILP Index of Legal Periodicals
Id. or ibid. Latin for the same. May refer to something found on the same page.
Illegitimate Contrary to the law.
Illicit Unlawful.
Immaterial Trivial, unimportant, or irrelevant.
Imminent Immediate, or about to occur.
Immunity To excuse from liability.
Impanel To formally appoint a jury.
Impeachment To show that a witness is mistaken or lying.
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Impediment A legal obstacle.
Impertinence Claim that some evidence may be relevant to the issue being
discussed, but that the issue is irrelevant to the trial.
Implied Indirect awareness.
Imputed Treated as if.
In camera In the judge’s chambers.
In forma pauperis Latin for “as a pauper.” To be allowed to sue without court
costs.
In limine Latin for preliminary. A Motion in Limine is a motion to exclude certain
evidence.
In loco parentis Latin, meaning acting in place of the parent for the benefit of
the trial.
In perpetuity Forever.
In re Latin. In the matter of. In regard to.
Inadmissible Evidence not to be considered by the jury.
Inalienable Rights which cannot be taken away.
Inchoate (pronounced in-ko-ate) Incomplete. Not due yet.
Incite To urge or encourage.
Incompetent Lacking the legal capacity to testify or perform at a certain
standard.
Incur To receive a burden, such as debt.
Indemnify To compensate or promise to compensate.
Indeterminate Without a fixed time period.
Indictment Formal accusation against a person of a crime by a grand jury.
Inducement Promise or statement that persuades another to enter into an act
or agreement.
Infirmity A defect or diminishment.
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Informed consent Approval of an act where the approval is based upon a
belief that all relevant information has been disclosed.
Information A document which alleges that a defendant has committed a crime,
as opposed to an indictment by a grand jury.
Infra. Latin for below, or to follow.
Injunction Court order to refrain from something.
In Personam Jurisdiction Jurisdiction over the person.
In Rem Jurisdiction Jurisdiction over the controversy, often property. Also see
Quasi in rem jurisdiction.
Instant Present or current. The instant case is the case being discussed at the
present time.
Intent Indicates that an act was committed on purpose.
Intentional Infliction of Emotional Distress Doing mental or psychological
harm by act or omission.
Interrogatories Written questions to the opposing party which must be answered
under oath. (Example: Describe the events that led up to the accident.)
Intervenor One who voluntarily becomes part of a lawsuit already ongoing.
The act is known as an intervention.
Intervention An additional party (intervenor) having an interest in the outcome
of a lawsuit may attempt to intervene and become part of the suit by filing a
motion to intervene with the court.
Intestate To die without a valid will.
Intra Within
Invitee One who is enticed or invited onto property.
Involuntary manslaughter The unintentional killing of another.
Ipso facto Latin for “By the fact itself.”
Interlocutory appeal An appeal made prior to or during a trial asking the
higher court to provide a ruling on limited issues, not to determine final judgment.
A party must receive approval of the trial court to proceed with an interlocutory
appeal.
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Issue A question of law. When something is “at issue,” it is a matter that will
ultimately be decided by the court.
J. Judge.
JP Justice of the peace.
Jeopardy In danger or exposed to hazard or liability.
Joinder Joining together.
Joint and several liability Liable individually and collectively. When there are
multiple defendants, if only one has the ability to pay damages, he or she may
be liable for all of the damages, not just a percentage.
Judgment creditor Party that is awarded damages at trial.
Judgment debtor Party that must pay damages after a trial.
Judicial Branch The branch which interprets the law. The State and Federal
court systems make up the Judicial Branch.
Jurisdiction The power of a court to hear and decide a case.
Key Number System Legal research system by West Publishing Company.
L.Ed. and L.Ed.2d United States Supreme Court Reports, Lawyer’s Edition, by
Lawyer’s Cooperative Publishing Company.
Laches The doctrine that enforcement of a legal right can be delayed so long as
to make it nonenforceable.
Landmen Paralegals who work in the area of oil and gas law. Specific skills as
to geography and geophysical terminology are generally needed.
Larceny Stealing.
Law The rules, standard, and enforceable expectations of society.
Law review Law school published legal periodical.
Lay Non-professional.
Leading question A question which demonstrates the desired response.
Leave Permission. By leave of the court means with permission of the court.
Legal advice Applying the law to a specific set of client facts, and relaying that
information to the client. Only a lawyer may provide legal advice.
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Legal analysis The application of the law to facts.
Legalese Old fashioned, legal jargon. Often confusing, even to attorneys.
Legal Dictionary Dictionary of legal terms, such as Black’s or Barron’s.
Legal Periodical Law reviews, loose-leafs, and journals by law schools, bar
associations and private publishers which are published at regular intervals.
Legislative Branch The branch which creates, or enacts, the law. On the Federal
level, Congress is the highest entity. On the state level, the State Legislature is
the highest entity.
Lessee A person leasing something from someone.
Lessor A person leasing something to someone.
Liable, Liability Responsible for.
Lexis A computerized legal research system.
Libel Written defamation.
Limitation A restriction.
Limited liability Limiting exposure to lawsuits, usually limiting financial exposure
to the amount of interest the individual has in the corporation being sued.
Liquidate To pay off or eliminate a debt.
Lis pendens A lis pendens is an announcement attached to the title of a piece
of property informing that there is litigation pending that may affect the title of
that property. It’s purpose is to thwart transfer of the title, and to protect the
rights of parties in litigation as to the ultimate disposition of the title.
Litigation To sue.
Loose-leaf service A three-ring or post-binder containing material which is
sent out periodically as opposed to a hardbound publication.
MD Middle District
Magna Charta An English document which in 1215 gave specific rights to
individuals for the first time.
Majority Opinion The strongest form of opinion. When more than 50% of the
court agrees on a decision. A majority opinion is usually law until it is superseded
or overturned.
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Malfeasance A public official committing a wrongful act.
Malice With bad intentions.
Malicious Prosecution and Abuse of Process Forcing a party to defend herself
against warrantless prosecution.
Mandamus Latin for “command.” May be an order by one branch of government
instructing another branch to do something.
Mandatory authority Authority which the court must rely upon in reaching its
decision.
Manslaughter Killing without malice.
Martindale-Hubbell Kind of a yellow pages for lawyers.
Mediation A manner of settling a dispute without going to court. Where a third
party attempts to find a satisfactory resolution to the dispute.
Memorandum opinion Very brief opinion, not much longer than the caption,
which simply informs as to the appellate courts disposition of a case, such as
“Rehearing denied,” or “Writ of Certiorari Granted.”
Miranda warning The right to remain silent. The warning must be given by the
police to someone once the person is suspected of a criminal act if the police
want to use any statements made at trial. Based on the U.S. Supreme Court
case of Miranda v. Arizona.
Misfeasance A lawful act which is improperly done.
Misprision Failure to carry out a public duty.
Misrepresentation Deceit. Knowingly misleading another.
Mistrial Ending a trial due to a procedural error. The case may usually be brought
again.
Mitigating circumstances Facts that may limit the level to which one is held
responsible.
Mitigating damages A party who has been damaged has the responsibility to
attempt to limit the furtherance of those damages. For instance, if Party A
injures Party B, but Party B refuses medical treatment for a week causing the
injuries to worsen, Party A will not be liable for the damages which could have
been mitigated by proper medical attention.
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Modify When the appellate court alters the decision of the trial court.
Monition A warning by a judge.
Motion, or move A request that the court take some sort of action. It may be
written or oral.
Motion for continuance A motion to postpone a date set for trial.
Motion for protective order A motion filed in response to some action or
conduct by the opposing party asking the court for some sort of relief. For
instance, if one party feels that discovery requests are unfair, this motion may
be filed.
Motion for Directed Verdict Motion during the trial made by a party asking
that the judge enter judgment on behalf of her/his client due to the fact that the
other party has failed to establish a prima facie case, thereby, foregoing the
need to consult the jury (if there is one).
Motion for Judgment NOV (Non Obstante Verdicto, or Not Withstanding the
Verdict) A motion made after the jury has returned its verdict which asks the
judge to enter a judgment opposite the verdict reached by the jury.
Motion for New Trial A motion that the court grant a new trial based on
procedural errors made during the trial.
Motion for Summary Judgment A motion made before trial requesting the
court to enter judgment on behalf of a client without going through an entire
trial based on the fact that there are no material facts in dispute, only issues of
law. The argument is that since the jury is the “trier of fact,” and since there is
no material fact in dispute, the court does not need the jury to apply the law
since the court is the “trier of law,” and therefore, the court should enter judgment
without going through a trial. A Motion for Summary Judgment may also be
filed to try and limit the issues that will be determined at trial.
Motion to dismiss A request to end a case without going through a trial, or to
end a trial in progress.
Motion to compel A motion filed asking the court to require that the other
party perform some act, such as answering discovery requests or producing a
witness for questioning. If the court agrees and issues an order, in the other
party ignores the order, the court may find that party in contempt.
Motion to dismiss for lack of prosecution If a plaintiff takes no action on a
filed matter for an extended period of time, a defendant may choose to file this
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motion. It is at the discretion of the court to determine how much time or
delay warrants a granting of this motion.
Murder The unlawful killing of another, with premeditation or malice.
NALA National Association of Legal Assistants.
N.E. or N.E.2d North Eastern Reporter
National Reporter System West Publishing Company’s series of case law books,
made up of regional reporters.
Negligence Establishment of a duty, followed by a breach of that duty, and an
establishment of damages. (For compensation to be awarded, it must be
established that the negligence was the proximate cause of the damages.)
Negligence per se Negligence while violating the law.
Next friend One appointed to act in the interest of a child without being a
guardian.
No contest See nolo contendere.
Nolle prosequi Latin. The prosecution decides not to prosecute.
Nolo contendere When a party enters a Nolo Contendere, or No Contest,
plea, she or he is refusing to contest the charges, but is not admitting to any
guilt. However, a person entering such a plea can be sentenced as though she
or he had entered a guilty plea.
Non-authority Authority which the court would not rely upon, such as invalid
authority, digests, or Shepard’s.
Non prosequitur (non pros.) Latin for “does not follow-up.” When the plaintiff
fails to act on a filed lawsuit for an extended period, the defendant may be
granted a favorable judgment.
Notary public A person authorized by the state to witness and verify signatures
and administer oaths.
Notice Knowledge of facts, or being informed.
Notice of Appeal The vehicle by which the case is taken from the trial court to
the appellate court. The Notice of Appeal is typically filed with the trial court and
copies sent to the other parties and the appellate court to which the appeal is
being taken.
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Notice pleading States which only require that a complaint generally notice
the defendant of the allegations being made are called notice pleading states,
as opposed to fact pleading states.
Null No longer legally valid.
Nunc pro tunc Latin for “now for then.” When something is done now, but the
court declares that for all legal purposes, it shall be treated as though it occurred
then.
Nuncupative will Oral will.
Oath To swear.
Obligation A duty imposed by a contract.
Obligee A person to whom a legal duty is owed.
Obligor A person owing a legal duty.
Of counsel A lawyer who is not a member of a firm, but has a business
relationship with the firm involving representing common clients. Also, when an
attorney represents a client, he is of counsel for that client.
Officer of the court Judge, bailiff, sheriff, etc. are officers of the court.
Lawyers are also officers of the court and have a fundamental obligation to
uphold the integrity and expectations of the court.
Official Published by or under authority of the government.
Official Reports A law book containing opinions of the court, also called cases.
A report, as opposed to reporter, is generally official, meaning it is published by
or under authority of the state.
Opinion Written decision of the court.
Oral Evidence Evidence given verbally. Also called testimonial evidence.
Original jurisdiction The first court to hear a specific legal matter.
Overt In the open.
P. or P.2d Pacific Reporter, 2d Series
Paralegal A non-lawyer performing legally related tasks that require specific
legal skills, usually under the supervision of an attorney.
Parallel cite An additional publication which publishes the same case.
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Parol Oral. Not written.
Parol evidence rule Oral evidence may not be produced as evidence to
controvert written evidence if the written document was intended to be a complete
statement as to the agreement.
Parties Individuals, groups, or entities involved in a legal action.
Pecuniary Monetarily related.
Per curium By the court. When the whole court is taking credit for writing the
opinion as opposed to an individual justice.
Perjury Lying while under oath.
Perpetuating testimony Allowing previously taken testimony to be presented
at trial. Usually a deposition of a seriously ill person.
Personal service Service of legal papers upon an individual as opposed to a
corporation, business, or registered agent.
Petition To make a formal request to the court. In some court actions, such as
a divorce or probate case, a petition initiates the legal proceedings. Also, in
some states, such as Texas, a petition is a complaint.
Physical Evidence Evidence which can be touched. Also called tangible or
demonstrative evidence.
Pinpoint citation Citing not just the page on which a case begins, but the
specific page on which a quotation appears. For example, if a lawyer quotes the
case of Smith v. Jones in a memorandum or a legal document, the cite would
look appear as follows: Smith v. Jones, 453 F.2d 390, 393 (9th Cir. 1986). This
informs the reader that the case of Smith v. Jones is found in volume 453 of the
Federal Reporter, Second Series, and that the case begins on page 390. It also
pinpoints 393, the page on which the quotation appears.
Plain view doctrine Police do not need a warrant to initiate a search or
investigation based on something that was observed in plain view. For instance,
if a police officer knocks on a door to return lost property, and upon the opening
of the door sees a bag of marijuana, the officer does not need a warrant to
proceed.
Plaintiff The party who initiates the suit. The party making the initial claims
or allegations.
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Plea Bargain When the accused and the prosecutor in a criminal case negotiate
a disposition of the case. It usually involves the defendant agreeing to plead
guilty to lesser charge, and in return the state drops the more serious offense.
Pleadings Legal documents filed with the court asking the court to take some
sort of action. Typically in adversarial proceedings, pleadings are always filed
with the court. When filing any document with the court, in most cases, the
party filing the document must also send a copy to the other party or parties so
they may have an opportunity to respond. The major pleadings are the complaint,
answer, affirmative defenses, counterclaims, cross-claims, and the reply.
Pocket part Supplement in the back of a volume that alters or adds to material
contained in the hardbound volume. When information from previous pocket
parts is combined with new information, the pocket part may be referred to as
a cumulative supplement. See cumulative and supplement.
Polling the jury Asking each juror individually to state what they believe the
outcome of the case should be.
Popular name Some statutes are referred to by a popular name as well as a
cite. For instance, the Mann Act. Federal statutes have a separate volume that
acts as an index to these cases.
Positive law Law that has been enacted by a legislature.
Preponderance of the evidence Degree of proof when it is “more likely than
not” that a fact is as one party alleges it to be. It often requires that a simple
majority (or some other degree less than 100%) of the jury agree.
Prerogative A privilege or special power.
Presumptive To be assumed or inferred.
Pre-trial hearing A hearing held usually for the purpose of clarifying issues
and determining the length of the upcoming trial.
Prima facie case A case or argument which is sufficient on its face. If all
representations made are eventually proven true, that there would be a legitimate
cause of action. When one party claims that the other party has failed to establish
a Prima Facie case, he is claiming that even if all the representations made are
true, there is still no legitimate cause of action. A Prima Facie case must exist to
proceed or prevail under any cause of action.
Privilege The right to refuse to testify, or to prevent someone else from testifying.
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Probable cause A reasonable basis to believe that a person has committed a
crime.
Probate Establishing the validity of a will.
Pro bono When an attorney takes a case for no charge or a reduced fee, he
takes it pro bono.
Promissory note A legal document which acknowledges a debt and promises
to pay the debt.
Proponent One who proposes something.
Proprietary Involving ownership.
Proximate cause The event or point at which a series of incidents begin which
ultimately result in an event with damages occurring.
Prudent person rule Doctrine where a trustee is expected to invest funds in
relatively safe and conservative investments.
Punitive damages Damages not related to the actual harm incurred, but
intended to punish or deter the acts in the future.
Quash To annul or suppress.
Quasi In Rem Jurisdiction Jurisdiction over property even though the property
is not the controversy.
Query Question.
Quid pro quo Latin for “this for that.”
Quit To leave or abandon.
Reaffirmation Accepting a continuing obligation to pay a debt even when there
may not be an obligation to do so.
Reasonable An expected standard as set by society or community.
Rebut To refute or dispute.
Receiver A court appointed person who manages money during a suit.
Recess To take a break.
Recidivist Repeat offender.
Reciprocal Of mutual benefit.
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Record The official collection of the transcripts, pleadings, and exhibits from
the trial.
Recourse The right to legal satisfaction.
Recovered or recovery Monies awarded during trial which cover damages.
Recuse or Recusal When a judge dismisses himself from a case.
Re-direct Examination The party conducting direct examination conducts the
re-direct examination to clarify matters brought up during cross. The party
conducting re-direct cannot introduce a new line of questioning, but must limit
himself or herself to matters discussed during cross. (While some courts allow
re-cross examination, it is not typical.)
Redress To seek attention of the court.
Registered or resident agent A business or person authorized to accept service
on behalf of a corporation as though the corporation itself had been served.
Release To give up a claim.
Relevant The existence of one fact that tends to make the existence of another
fact more probable or less probable than it would be without that fact.
Remand When the appellate court sends the case back to the trial court for
further deliberation.
Remittitur The process whereby a judge subtracts from the amount of damages
a jury has rewarded. In effect, the judge gives the party awarded damages the
choice of accepting a lesser amount or the judge will grant the other side a new
trial.
Render To pronounce.
Repeal To remove.
Reply Plaintiff’s response to new facts contained in the Answer, Affirmative
Defenses, or Counterclaim.
Report A law book containing opinions of the court, also called cases. A report,
as opposed to reporter, is generally official, meaning it is published by or under
authority of the state. (See Official Reports)
Reporter A law book containing opinions of the court, also called cases. A
reporter, as opposed to reports, is unofficial, meaning it is published by a private
publisher.
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Request for Admissions Written statements which the opposing party must
admit or deny under oath. Failure to respond within a specified period of time
(usually 30 days) means that the statements will be deemed admitted. (Example:
Admit or deny you had been drinking alcohol shortly before the accident.)
Request for Production of Documents A request that documents be provided
for the purpose of inspection. (Example: Please produce any and all receipts for
Acme Dry Cleaning between July 1 and July 14, 1991.)
Request for Mental or Physical Examination Request that the other party
(usually the plaintiff) be subjected to a mental or physical examination. This is
the one form of discovery that may require court approval so that it cannot be
used just to try to intimidate.
Request or demand for jury trial In most courts, a party must request a jury
well in advance of the trial.
Res Latin for “thing or things.”
Res gestae Connected to or concurrent with an event or occurrence.
Res Judicata The doctrine that a case that has been decided on its merits will
not be re-litigated.
Rescind To annul or reverse.
Rescission Annulment of a contract.
Resident agent See registered agent.
Respondeat superior Latin for “the master will answer.” Doctrine by which one
in a supervisory position, such as an attorney, will be held accountable for the
acts of those under his supervision.
Respondent One who responds to an appeal or suit. Same as appellee.
Responsive pleading A pleading which responds to another.
Restatements of Law A series of legal treatises by American Law Institute
(ALI).
Restitution To give back or return.
Retainer Money paid to secure the services of an attorney. Actual services will
be deducted from the retainer. Similar to a deposit.
Reverse When the appellate court disagrees with the decision of the trial court.
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Revoke To reverse or remove in effect.
SC Supreme Court.
S.Ct. Supreme Court Reporter by West Publishing Company.
SD Southern District
S.E. or S.E.2d South Eastern Reporter.
ss Sworn statement.
So. or So.2d Southern Reporter
Sanction Penalty or fine. May also mean to permit something.
Satisfaction Paying a debt.
Sequester To separate or isolate.
Sentence In a criminal case, the sentence is the punishment provided by the
court, sometimes after a recommendation by a jury.
Sentencing phase In some trials, after the jury returns its verdict, a new
phase of the trial begins to determine what the sentence, or punishment, will
be. During this phase, both parties may call witnesses and present evidence,
not to argue guilt or innocence anymore, but to argue the most appropriate
punishment.
Serve To present legal documents.
Service of process “Process” is the Summons & Complaint. Therefore, Service
of Process is the presenting of the Summons & Complaint upon a defendant in
a court action.
Settlement A compromise between parties prior to or involved in litigation
negating the necessity for further judicial proceedings Once a settlement is
signed, the parties give up their rights to further court action.
Setoff An equalization of debt.
Shepard’s The major citator. Validates law.
Show cause order An order to explain why the person should not be held in
contempt for failing to obey a previous court order.
Slander Oral defamation.
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Slip law Manner in which a new statute is first published (in pamphlet form).
Slip opinion Manner in which a recently decided case is first published (in
pamphlet form).
Solicitation To pursue business from specific prospective clients, which is
unethical for lawyers, paralegals, and legal secretaries.
Specific performance Being required to fulfill the specific obligations of a
contract.
Star paging, or star pagination A tool which unofficial reporters utilize informing
the researcher what page they would be on if they were in the official publication.
Stare Decisis To stand by previous court decisions. “Let the decision stand.”
The doctrine whereby a previous court decision will guide the court in deciding
a current case unless there is a compelling reason to hold otherwise.
Stay To postpone or delay enforcement.
Stipulation Facts agreed to by parties that will not be contested at court.
Strict liability Where one may be held liable or guilty even when the damage is
not caused directly by that individual.
Sua sponte Latin. Voluntarily.
Subordination Admission that a claim or right is weaker than another.
Subpoena A document issued under authority of the court to compel the
appearance of a witness.
Subpoena duces tecum A document issued under authority of the court to
compel the appearance of a witness, and for the witness to provide documents
at the time of his or her appearance.
Subrogation The replacing of one person for another in a legal matter, conferring
all rights and obligations.
Substitute service Service upon a designated or registered agent instead of
the party.
Summons The legal document which notifies a defendant she or he is being
sued or charged in a legal action and which notifies him or her that he or she
must respond or appear within a specific period of time. Usually served upon
the defendant with the Complaint.
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Sunset law An administrative agency will cease to exist unless the legislature
specifically extends its existence.
Sunshine law A law that certain governmental meetings or records must be
open to the public.
Supercede To replace.
Supplement A manner in which publishers update materials. Examples include
pocket parts and cumulative supplements.
Supra Latin for above or earlier.
Surety A company or person that guarantees a loan or debt.
Surrogate A person who stands in place of another.
Sustain To uphold.
TRO Temporary Restraining Order
Tender To offer money.
Testate or Testacy To leave a valid will.
Testify To give evidence under oath.
Tickler system A method of calendaring which reminds the lawyer, paralegal,
or secretary at periodic intervals that something is due at a certain point.
Tort A civil wrong.
Tortious Related to a tort.
Tort-feasor One who commits, or is alleged to have committed, a tort.
Total Client Service Library (TCSL) Legal research system by Lawyer’s
Cooperative Publishing Company which directs the researcher to other materials
and authorities referencing the same subject matter.
Transitory action A suit which may be brought in many places.
Treatise A book on a specific area of law written by a private individual or
company.
Trespass and Nuisance (Environmental Torts) Unwarranted and
unauthorized entry on one’s property or the devaluation of enjoyment of one’s
property due to intrusive acts of another.
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Trial court Court where legal actions commence. The trial court has one judge
and often a jury.
Trial notebook A collection of all the materials the attorney will need at trial.
Trier of fact The jury.
Trier of law The court.
Turpitude Immoral. Dishonest.
UCC Uniform Commercial Code
USC United States Code (official).
USCA United States Code Annotated (unofficial, by West).
USCS United States Code Service (unofficial, by Lawyer’s Coop.).
USDC United States District Court.
Unauthorized practice of law Non-lawyers doing what only lawyers may do.
United States District Court Trial court where federal actions commence.
United States Courts of Appeal Federal appellate court which is broken into
Federal Circuits and is, therefor, often referred to as the Circuit Court of Appeals.
A Circuit is a collection of Districts. Thus, a Circuit Court is responsible for appeals
from a collection of District Courts.
United States Supreme Court Highest court in U.S. Court of last resort.
Usery Charging an unfairly high rate of interest.
v. or vs. versus, as in Smith v. Jones.
Vacate To set aside or replace.
Vel non Or not.
Venue Place of trial.
Verdict Determination of the jury.
Vested A part of. Not to be taken away.
Vicarious liability Liability for an acts of another person. For example, a lawyer
may be responsible for the acts of the paralegal if the acts were within the scope
of the paralegal’s employment.
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Voidable May be made void.
Voir dire Questioning prospective jurors to determine their fitness to sit for a
case. Also, the questioning of potential witnesses to determine the relevance or
appropriateness of their testimony. The questioning is done outside the hearing
of the jury.
WD Western District
Waive To give up a right.
Westlaw Computerized legal research system by West Publishing Company.
Willful Intentional.
Witness One making a sworn statement under oath, often one who has observed
something.
Work Product Rule See Attorney Work Product
Writ An order by a judge that something, out of court, be done or completed.
Writ of Certiorari The vehicle by which the case is taken from the Court of
Appeals (state or federal) to the Supreme Court (state or federal). Also, the
means by which a case is taken from a state supreme court to the U.S.
Supreme Court.
Wrongful Death Death due to another’s negligence.
Wrongful Imprisonment Restriction of an individual’s freedom of movement,
physically or mentally.
Appendix 1: The Paralegal Glossary
231C