CIVIL LITIGATION PRACTICE FOR PARALEGALS. Many attorneys, paralegals and legal assistants refer to pleadings as all

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1 CIVIL LITIGATION PRACTICE FOR PARALEGALS III. PREPARATION OF PLEADINGS Many attorneys, paralegals and legal assistants refer to pleadings as all court papers in the case. Technically speaking, the pleadings of the parties constitute the Complaint (including amended complaints) and the Answer (including amended answers). Thus, the specific claims, contentions, defenses and affirmative defenses set forth in these documents constitute pleadings. In both state and federal court, notice pleading controls. Thus, it is possible to write a very brief complaint and a very brief answer, which simply sets forth the allegations and the facts that constitute the cause of action and, defensively, a denial of these allegations and any affirmative defenses. From the plaintiff s perspective, the complaint is one of the most important documents, since it is the first communication (in many cases) with the risk manager, in-house counsel and defense attorneys. A well-drafted complaint that sets forth in vivid detail the facts, damages and legal theories should get the attention of your opponent and the court. A judge will read a complaint that invites reading. A boring complaint will not be read. The same is true for defensive pleadings. Well-drafted pleadings will also avoid motions to dismiss and motions for more definite statements, which simply waste time. It is always a good idea to consult AM JUR. PLEADING & PRACTICE, or another form book, to make sure that you are not missing any crucial elements of a cause of action claim or defense. Due consideration should also be given to Rule 11, which requires a well-founded

2 basis for any allegation in the pleadings, including a factual basis, to support this contention. An example of a complaint which we have recently filed in state court in a medical malpractice case is attached hereto as Exhibit 1. The rules of civil procedure set forth in detail any special pleading rules. Fraud, for example, must be pleaded with particularity and certain pleadings must be verified (suit on a sworn account). Before a pleading can be prepared it is simply necessary to have a complete understanding of the facts and a very specific knowledge of the law. In many ways it is harder for the plaintiff to plead --to prepare a complaint since the plaintiff must worry about matters of jurisdiction, venue, jurisdictional amount, diversity of citizenship, removal, etc. I recently drafted a complaint very consciously to avoid any federal law allegations, even though the complaint involved allegations of sexual discrimination. A copy of this complaint is attached as Exhibit 2. From the paralegal s perspective, one of the most important jobs can be to make sure that all the facts which have been gathered that need to be in the complaint are in the complaint. The idea here is to include facts which you want the other side to be forced to admit or deny. In effect, the complaint becomes a request for admissions, putting defense counsel to the burden of responding. Similarly, from the defense perspective, the defense needs to be careful in answering so as to not admit something that could be harmful and choosing words that will allow room for amendment, argument or development of proof

3 through discovery. Due care must be taken to set forth sufficient and affirmative defenses. Again, from the paralegal s point of view, it is simply important that all the facts that might make for a defense are known and set forth in the responsive pleadings.

4 IV. ETHICAL GUIDELINES FOR PARALEGALS For many years paralegals labored under the rule that they were not permitted to give legal advice and could not practice law. That rule generally holds true; however, the American Bar Association has recently published a report (October 19, 1995) entitled Non-Lawyer Activity in Law-Related Situations: A Report with Recommendations. This Report is the culmination of a three-year study by the Commission. In its Report, the Commission defines a paralegal as a, person who performs substantive legal work or provides advice to a client with the supervision of a lawyer or for whom the lawyer is accountable. One of the Commission s recommendations calls for expansion of the range of paralegal activities for which a lawyer is accountable. The Report defines a second type of non-lawyer provider as a legal technician who, provides advice or other substantive legal work to the public... without the supervision of a lawyer and for which no lawyer is accountable. See American Bar Association Journal, Regulating Non-Lawyers: Report Analyzes Non- Lawyer s Role in Legal Services, October, 1995 at 103. The Code of Professional Responsibility (Rule 8 of the Tennessee Supreme Court) and the American Bar Association s Model Code of Professional Responsibility, governs the ethical conduct for attorneys and the ABA has also enacted the Model Guidelines for the utilization of legal assistants, These guidelines were intended not only to be utilized by individual states in developing their own guidelines, but also to educate and encourage attorneys to use legal assistants effectively. These guidelines are not rules of law, but are suggested approaches for working with

5 paralegals. The National Federation of Paralegal Associations, Inc. (NFPA) has also published a Model Code of Ethics and Professional Responsibility. A copy of these standards is attached hereto as Exhibit 3. Essentially, the paralegal can be just as vigilant as the attorney in avoiding conflicts of interest and breach of confidentiality. One issue that may arise is whether the paralegal or legal assistant has ever worked for another law firm. Generally speaking, conflict of interest guidelines that govern attorneys also apply to paralegals. In a recent California case, an appellate court upheld the disqualification of a plaintiff s attorney from 21 asbestos cases, an enormous loss for the practitioner, because the attorney had failed to do a conflict of interest check for a paralegal who had once worked for the defense attorneys in asbestos cases. In Re Complex Asbestos Litigation, 232 Cal. App. 3d 572 (Cal. Ct. App. 1991).

6 V. IDENTIFYING AND ASSISTING EXPERT WITNESSES The paralegal can be invaluable in identifying, obtaining and working with expert witnesses. Few civil cases are litigated without some form of expert witness testimony. The rules pertaining to expert witnesses grow in their complexity each year. Today, expert opinions must not only be from a credible and qualified expert, they must be scientifically reliable, otherwise the court may exercise discretion and exclude the expert testimony. Thus, it is important for experts to not only be retained, but to be adequately armed and prepared. That is where the paralegal can be great assistance. Finding expert witnesses is often very easy. If there has been another case tried or settled in which experts were used, many publications list who the experts were, their address and areas of specialty. Our firm subscribes to a number of publications, including Jury Verdict Research and National Products Liability Database Reporter and various newsletters to provide an easy source of identifying expert witnesses. We keep a computerized data file of all areas and experts. If those sources fail, the next place to look is the appropriate medical or scientific literature. Often, by reading the literature, one can find who the real experts are in the area and contact them directly. They are often flattered to know that someone has read their scientific article and would be interested in retaining them as an expert. Those are the experts that you wish to retain. Experts who advertise should not be excluded categorically, but are often not the best expert for the job. Finding services, such as Technical Assistance Bureau

7 (TASA) are easy sources for finding experts and can be very productive. Inquiries to the Association of Trial Lawyers of America are often productive. Once the expert is identified, the paralegal s job is to gather the materials to send to the expert. Working with the lawyer, the appropriate package to review is then sent out. Presenting that in a professional form with an eye towards its future discovery is very important. The expert should be given enough information so that he or she can say that they have done a thorough job, mindful that all this review is going to cost money. Summaries can be very helpful. No expert should be asked to read hundreds of pages of deposition testimony where a summary can provide the essential points. Similarly, volumes of medical records should be index, tabbed and highlighted for the experts. A summary should also be provided. There should be a summary not only of the medical records, but a summary of the case itself. The expert should be told specifically what the questions are that you are asking. Once the expert has reviewed the materials, the expert should give the report over the telephone and then the attorney and paralegal should make the decision of whether the expert opinion should be reduced to writing and, if so, by whom. I believe the preferable practice is to obtain the expert s opinion over the phone, dictate an appropriate memorandum to the file and then, at the appropriate time, prepare a comprehensive expert affidavit or report for the expert s review and signature. That is the only way to ensure success in this business. The paralegal then is responsible for keeping the expert updated as discovery progresses, by sending the expert additional information and making sure that that expert is very happy

8 (and paid). Often, nothing hurts a case more than having an expert who is lazy or won t work on the case. Do not assume that the expert will do all the work for you. Just the opposite is true. You will need to make sure the expert is working and prod him or her to do so. Expert witnesses are value and money maximizers. They will do as little as possible for as much as possible (in most cases), unless you are on them constantly.

9 VI. COMPUTERIZED LITIGATION ASSISTANCE The case file is the core of any litigation practice. We believe that the paper file should mirror the electronic file. At our office we use the Eurofiles (Bindertek) paper file (notebook) system and WordPerfect (for Macintoshapple). When a new file is set up, the paralegal should give the secretary the information obtained in the initial client interview and should work with the secretary to open up the new file. The secretary first opens an electronic file, showing the new client under the client s name and assigns the client a new 4-digit number. The client s electronic file then has subfiles showing: Deadlines/To Do Client Interview Fee Agreement Authorizations Costs Correspondence Notes/Memos Legal Research Investigation Pleadings Interrogatories/Answers Deposition Summaries Document Production

10 Medical/Hospital Records Medical Bills Damages Insurance Witnesses Exhibits Settlement/Arbitration/Mediation. In a computer-networked office, this allows anyone on the litigation team to access this information at any time. We have separate software programs which list the client s name, address and personal statistical information and which are then integrated into the calendar program. In our opinion, it is absolutely essential for the paralegal to have full computer support. The paralegal should have a computer on his or her desk and that computer should be assisted with complete software programs to maximize the paralegal s time and efficiency. At our office we use the following software programs: a. WordPerfect (Version 3.1 for Macintoshapple) b. Now Up-to-Date 3.0 (Calendar program) c. Now Contact (personal contact/information manager) d. Ready for Trial! (legal case manager, for Macintoshapple)

11 The computerized calendar should be networked such that the attorney s secretary, paralegal and all others in the office can view the calendar and see important appointments. An example of the monthly, weekly and day views available are attached (Exhibit 10). The word processing system should permit the paralegal to electronically open all the files to see court papers, notes, correspondence, memos, etc., without having to leave the desk every time information is necessary from the file. The Now Contact program allows the client s information to be listed on the computer, as well as names of other attorneys, witnesses, etc. 1. Electronic mail. When our office was first set up we used a simple system. Our office has now progressed to voic . Voic is far beyond a simple electronic answering machine. requires the sender to type in a message and send it to the other person s computer. This permits the message to be printed and also allows it to appear on the computer screen. We still have the electronic mail system, but it has been largely replaced by voic . It is simply much easier to pick up the telephone and leave the voic message for the intended party (secretary, attorney, paralegal). It also has the advantage of being much more easily accessible remotely. Voic can also be archived to the file and transferred to the secretary for typing. Telephone conversations can also be recorded by simply pressing a button. If the attorney or paralegal is out of the office, they can call in and get messages. While somewhat more expensive, every office should have voic . It will replace many mundane and difficult tasks. When important messages need to

12 be preserved they should be sent to the secretary for typing and put into the file. Voic messages can also be archived and downloaded on a computer disk. 2. Faxing From Computer Screen. Having the ability to fax from the computer screen is of great assistance. In scheduling depositions you can call up a form letter, fill in the blanks, hit one button and it will send it. 3. Dictaphone. All paralegals should have their own dictaphone station and portable dictaphone. 4. Video Presentation. In personal injury practice, visual materials for presentation (photographs, camcorder, tapes, x-rays, still shots, etc.) can now be presented at trial on a telephone screen through a visual presenter. Assembling these exhibits and working to prepare them will be a new area for many paralegals. It has now become cost-effective for a small law firm to use a digital camera or videocamera to download the images into the computer for presentations as part of the settlement brochure. CD Rom technology also permits the capturing of images for the introduction into settlement brochures. 5. Portable Computer. A portable computer (Powerbook ) is of great use at depositions and interviews in the field. Essentially, the paralegal can download pertinent portions of the file and bring them anywhere. This can

13 be valuable in sending and receiving faxes, typing up notes and planning depositions. At our office we have an office Powerbook that is available to anyone who needs it. 6. Remote Dictaphone. Despite the advantages of voic , secretaries prefer typing from a tape since it is more easily stopped and started than a computerized voic message. Dedicating a Dictaphone line to a central tape will allow paralegals, attorneys and others in the office to call in message that are earmarked for transcription.

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