Transcript PEOPLE MANAGEMENT

PEOPLE MANAGEMENT
CLIENTS – COMMUNICATION,
CORRESPONDENCE AND GUIDANCE
Paralegals can’t get away from the fact that everything we
do involves communication. Whether it is communicating
with a client, the court, a judge or even the local copy shop,
we need to know how to communicate. Paralegals are
called on to be the liaison between clients, witnesses,
experts and counsel. Strong communication and writing
skills are essential in fulfilling this role. This is not
something that is easily taught and/or learned in a
classroom. For most of us, this is something we learn over
time and/or while on the job. As liaison, you must
thoroughly understand the legal concepts of confidential
communications, work-product and conflicts of interest.
You must also understand the dangers of giving legal
advice which is often sought.
COMMUNICATION
CLIENT INTERVIEW
DISCOVERY
TRIAL
CLIENT INTERVIEW
PURPOSE FOR INTERVIEW
PREPARE FOR INTERVIEW
CONDUCT INTERVIEW
FOLLOWING INTERVIEW
DISCOVERY
WRITTEN DISCOVERY
DEPOSITIONS
TRIAL
TRIAL PREPARATION
INSTRUCTIONS TO CLIENT
CORRESPONDENCE
ATTORNEY-CLIENT PRIVILEGE
WORK-PRODUCT
CONFLICT OF INTEREST
DANGER OF GIVING LEGAL ADVISE
ATTORNEY-CLIENT PRIVILEGE
Attorney-client privilege is a legal concept
which protects communications between a
client and his or her attorney and keeps
those communications confidential. This
privilege encourages open and honest
communication between clients and
attorneys
Guideline 6, ABA Model Guidelines
for utilization of paralegal services:
It is the responsibility of a lawyer to take
reasonable measures to ensure that all
client confidences are preserved by a
paralegal
NFPA Model Code of Ethics and Professional
Responsibility and Guidelines for Enforcement
Canon 5, A paralegal shall preserve all
confidential information provided by the client or
acquired from other sources before, during and
after the course of the professional relationship
EC-1.5, A paralegal must protect the
confidences of a client, and it shall be unethical
for a paralegal to violate any statute now in
effect or hereafter to be enacted controlling
privileged communications
EC-1.5(b), A paralegal shall not use confidential
information to the disadvantage of the client
WORK-PRODUCT DOCTRINE
“tangible material or its intangible
equivalent" that is collected or prepared in
anticipation of litigation
WORK PRODUCT RULE
The work product doctrine was stated in a 1947 case,
Hickman v. Taylor, 329 U.S. 495
The doctrine was codified in the Federal Rules of Civil
Procedure, Rule 26(b)(3), which is the model for the
work product rule in many states
In Hickman the Supreme Court created a qualified
immunity from discovery for a lawyer’s trial preparation
If the opposition finds such informational material
essential to its case and does not have an effective
substitute, it may obtain the material by court order
The client may also waive such protection by actual or
implied consent
The work of paralegals in preparing litigated matters is
protected by the work product rule
NFPA Model Code of Ethics and Professional
Responsibility and Guidelines for Enforcement - Canon
1.5, A paralegal shall preserve all confidential information
provided by the client or acquired from other sources
before, during, and after the course of the professional
relationship
CONFLICT OF INTEREST
In the legal profession, the duty of loyalty
owed to a client prohibits an attorney (or a
law firm) from representing any other party
with interests adverse to those of a client
Guideline 7, ABA Model Guidelines for the
Utilization of Legal Assistant Services
A lawyer should take reasonable
measures to prevent conflicts of interest
resulting from a legal assistant’s other
employment or interests insofar as such
other employment or interests would
present a conflict of interest if it were that
of the lawyer
NFPA Model Code of Ethics and
Professional Responsibility and Guidelines
for Enforcement
EC1.5(e), A paralegal shall keep those individuals responsible for the legal
representation of a client fully informed of any confidential information the paralegal
may have pertaining to that client
Canon 1.6, A paralegal shall avoid conflicts of interest and shall disclose any possible
conflict to the employer or client, as well as to the prospective employers or clients
EC-1.6(a), A paralegal shall act within the bounds of the law, solely for the benefit of
the client, and shall be free of compromising influences and loyalties. Neither the
paralegal’s personal or business interest, nor those of other clients or third persons,
should compromise the paralegal’s professional judgment and loyalty to the client
EC-1.6(b), A paralegal shall avoid conflicts of interest that may arise from previous
assignments, whether for a present or past employer or client
EC-1.6(c), A paralegal shall avoid conflicts of interest that may arise from family
relationships and from personal and business interests
EC-1.6(d), In order to be able to determine whether an actual or potential conflict of
interest exists a paralegal shall create and maintain an effective recordkeeping
system that identifies clients, matters and parties with which the paralegal has
worked
EC-1.6(e), A paralegal shall reveal non-confidential information about a client or
former client to reasonably ascertain if an actual or potential conflict of interest exists
LEGAL ADVICE
Legal advice is the giving of a formal and
binding opinion regarding the substance or
procedure of the law by an officer of the
court, ordinarily in exchange for financial
or other tangible compensation
NFPA Model Code of Ethics and
Professional Responsibility and Guidelines
for Enforcement
EC-1.7(a), A paralegal’s title shall clearly indicate the individual’s
status and shall be disclosed in all business and professional
communications to avoid misunderstandings and misconceptions
about the paralegal’s role and responsibilities
Canon-1.8, A lawyer may not delegate to a paralegal (1).
Responsibility for establishing an attorney-client relationship; (2).
Responsibility for establishing the amount of fees to be charged for
legal services; and (3). Responsibility for a legal opinion rendered to
a client
Canon 7, A paralegal shall not engage in the unauthorized practice
of law
EF-7.1, A paralegal shall comply with the applicable legal authority
governing the unauthorized practice of law in the jurisdiction in
which the paralegal practices
IN WHICH OF THE FOLLING SCENARIOS
WOULD A PARALEGAL BE CONSIDERED
TO BE GIVING LEGAL ADVISE?
A.
B.
C.
D.
The firm’s client hasn’t paid the bill. After checking
with the lawyer, the paralegal tells the client, “The
lawyer told me that if you don’t pay your bill in 30 days,
legal proceedings will begin.”
A new lawyer asks an experienced family law
paralegal what to tell a divorce client about the
chances of having sole custody of the children. The
paralegal tells the lawyer, About 70-30 in the client’s
favor.”
A client is upset because the trial begins tomorrow and
the paralegal advises, “Try not to look so worried when
you’re in court. Try to stay calm.”
A client requests information on how to classify a car
on a self-help form.
PARALEGALS WRITTEN
COMMUNICATION WITH CLIENT
USE CLEAR LANGUAGE
CORRECT GRAMMAR
CORRECT SPELLING
INDICATE TITLE
USE “ATTORNEY-CLIENT PRIVILEGE”
PROVIDE CLIENT WITH COPIES OF ALL
CORRESPONDENCES, PLEADINGS AND
DISCOVERY
PROVIDE CLIENT WITH COPIES OF ALL
WORK-PRODUCT
Letter Writing Techniques
Always carefully proofread and edit any
letters
Delete any unnecessary words or legalese
Write as you speak
Use plain English rather than legalese
Use proper grammar, punctuation, and
capitalization
Avoid slang, profanity, fad words, or other
sloppy language
Common Errors in Letter Writing
Writing so your reader has trouble
understanding you
Talking down to your reader
Failing to be clear about the things you
want your correspondent to do and when
Follow the Golden Rule
If you don’t need to say it, don’t say it at all
GUIDANCE
Traditional paralegal
Freelance/contract paralegal
Independent paralegal
TRADITIONAL PARALEGAL
A PARALEGAL WHO WORKS WITH
SUPERVISION BY AND/OR
ACCOUNTABILITY TO A LAWYER
FREELANCE/CONTRACT
PARALEGAL
A PARALEGAL WHO WORKS AS AN
INDEPENDENT CONTRACTOR WITH
SUPERVISION BY AND/OR
ACCOUNTABILITY TO A LAWYER
INDEPENDENT PARALEGAL
A PARALEGAL WHO PROVIDES
SERVICES TO CONSUMERS WITH
REGARD TO A PROCESS IN WHICH
THE LAW IS INVOLVED AND FOR
WHOSE WORK NO LAWYER IS
ACCOUNTABLE
Also included under the category of
Independent Paralegal are the following:
Special Advocate
Agency Representative
Special Advocate
A paralegal who is authorized to
participate in court proceedings involving
specified classes of parties or cases. The
special advocate may be referred to as a
“court appointed special advocate” (CASA)
Agency Representative
A paralegal who is authorized by statute or
agency rule to provide representation in
agency proceedings
Harkness v. Unemployment
Compensation Board of Review
Employers can be represented by nonlawyers at unemployment compensation
proceedings, a deeply split Pennsylvania
Supreme Court has ruled
WITNESSES AND EXPERTS
WITNESSES
Witnesses are persons who give evidence
in a cause before a court and who attests
or swears to facts or gives or bears
testimony under oath
WITNESSES
IDENTIFY ALL POTENTIAL WITNESSES TO A
CASE
KEEP A LIST OF ALL NAMED WITNESSES
DECIDE WHETHER YOU WILL DEPOSE
WITNESSES
SUBPOENA WITNESSES FOR DEPOSITIONS
NAME ALL WITNESSES IN PRE-TRIAL
MEMORANDUM
SUBPOENA ALL POTENTIAL WITNESSES
FOR TRIAL
EXPERT WITNESSES
Expert witnesses are persons with
specialized knowledge, skill, experience,
training or education who, once qualified,
are able to provide testimony concerning
opinions formed
EXPERTS
LOCATING POTENTIAL EXPERTS
INTERVIEWING POTENTIAL EXPERTS
CONDUCTING BACKGROUND
INVESTIGATION ON EXPERTS
SERVING AS LIAISON WITH EXPERTS
PREPARING EXPERTS FOR LEGAL
PROCEEDINGS
FOCUS GROUPS/MOCK TRIALS
WHAT IS A FOCUS GROUP
WHAT IS A MOCK TRIAL
WHY RESEARCH?
QUALITY JURY RESEARCH
PARLEGAL FUNCTION IN
COORDINATING FOCUS GROUP/MOCK
TRIAL
FOCUS GROUP
A focus group is an exploratory, creative
conversation with jurors guided by one or
two consultants. A focus group usually
takes half a day or an evening
MOCK TRIALS
A mock trial is a structured, argumentative
case presentation in which attorneys
present both sides of the case. A mock
trial usually takes at least one day if not
more
WHY RESEARCH?
Jury research is any of several types of
exercise using surrogate jurors. It is
designed to answer any question we may
have about how jurors may receive the
case as a whole, or any piece of it
RESEARCH TAKES MANY
FORMS DEPENDING ON USE
Situation
Research Solution
.
To gain better understanding of general
opinions in a particular venue -----
.
Community attitude telephone survey
.
To help us begin to put our case story
together early in discovery---
.
Neutral format to see how jurors develop
story
.
To determine how best to test one or two
particular issues when we have a limited
budget for a case---
.
Case issue study or abbreviated focus group
.
To see how jurors value a case to inform
settlement negotiations-----
.
Damage assessment research
.
To test our key themes and strategies as we
approach trial---
.
Focus group
.
To assess how jurors are receiving our case
and our witnesses at trial
.
Shadow jury
Quality Jury Research
Is conducted in trial venue (or matched)
Uses surrogate jurors matched to venue
demographics
Ensures confidentiality
Is conducted by social science
research/statistical experts
PARALEGAL FUNCTION IN
COORDINATING FOCUS
GROUP/MOCK TRIAL
. SEARCHES TO FIND PROVIDER
. WORKING WITH PROVIDER TO
COORDINATE FOCUS GROUP/MOCK
TRIAL