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 DISCOVERYTRIAL

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.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.” B.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 in the client’s favor.” C.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.” D.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 non- lawyers 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.To gain better understanding of general opinions in a particular venue To help us begin to put our case story together early in discovery---.To determine how best to test one or two particular issues when we have a limited budget for a case---.To see how jurors value a case to inform settlement negotiations-----.To test our key themes and strategies as we approach trial---.To assess how jurors are receiving our case and our witnesses at trial Research Solution.Community attitude telephone survey.Neutral format to see how jurors develop story.Case issue study or abbreviated focus group.Damage assessment research.Focus group.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