2013 Solo and Small Firm Conference

Transcription

1 Vermont Bar Association Seminar Materials 2013 Solo and Small Firm Conference 4d) How Paralegals Can Help Your Law Practice May 16-17, 2013 Basin Harbor Club Vergennes, VT Faculty: Barry Butkus Laura Gorsky Ashley LaRose Carie Tarte

2 HOW PARALEGALS CAN HELP YOUR LAW PRACTICE Carie Tarte Vermont Paralegal Organization, President Sheehey, Furlong & Behm P.C., Paralegal 30 Main Street, Burlington, Vermont 1

3 What is a paralegal? The National Federation of Paralegal Associations (NFPA) defines a Paralegal as a person, qualified through education, training or work experience, to perform substantive legal work that requires knowledge of legal concepts and is customarily, but not exclusively, performed by a lawyer. This person may be retained or employed by a lawyer, law office, governmental agency or other entity or may be authorized by administrative, statutory or court authority to perform this work. Substantive shall mean work requiring recognition, evaluation, organization, analysis, and communication of relevant facts and legal concepts. Paralegal Tasks Paralegal tasks and roles are evolving with technology. While Paralegals still often perform traditional paralegal tasks such as title searching, interviewing witnesses, corresponding with clients, drafting pleadings and performing factual or legal research, the growing trend for paralegals, particularly with regard to document and case management, has taken on a more forensic and digital approach. Paralegals now are tasked with selecting and utilizing document management software, determining the field and depth of electronically stored information (ESI) that clients have, and contemplating the best and most efficient way to produce that information in the course of discovery. Even paralegals performing title searches in the land records must learn software that now exists in each town clerk s office in order to retrieve the growing numbers of electronically stored land and lien record information. With being the most utilized and often preferred method of communication, paralegals become integral in the process of collecting, storing and responding to electronic communications that take place daily in a given case. 2

4 In litigation, a paralegal can assist an attorney by performing necessary background investigation work: requesting and summarizing medical records, accident records, driving records, and collecting information and documentation from the client necessary for preparing initial disclosures and document productions. In litigation, there is also a large component of document management, and it is this aspect where a paralegal, well versed in technology, can be indispensable. Documents produced by other parties, as well documents that a client must produce relative to litigation, all require tracking. The electronic numbering and production of documents is now standard practice; a standard practice that can be difficult for a solo or small firm to meet without the assistance of a highly organized and tech savvy paralegal. A paralegal well-versed in technology can also tell the kind and volume of documents that should be received in discovery and can assist attorneys in crafting more effective document requests and responses. Litigation paralegals are also helpful in client management and control. Paralegals can field many calls from clients, who often are simply looking for reassurance. Paralegals also can draft responses to discovery and go over with the client a first draft of responses for the supervising attorney to review. Last, but certainly not least, litigation paralegals are vital in the trial preparation process: compiling and marking exhibits, creating exhibit lists, preparing exhibits for presentation to the jury, preparing PowerPoint presentations for opening or closing arguments, taking notes during trial to track admitted and offered evidence, and meeting and coordinating with trial witnesses. Real estate paralegals provide the leg work that makes commercial and residential closings possible. Meeting with clients to perform initial intakes and obtaining all necessary documentation or information, title searching, preparing title opinions, preparing Closing 3

5 Statements, coordinating information between lenders and clients are all fundamental parts of the real estate transaction process that paralegals perform. Many of the land records in the larger cities in Vermont have gone electronic. Performing title updates and 40-year searches and obtaining copies of deeds, discharges and other land records now often require the use of computers and databases in the land records. A real estate paralegals time is best spent performing these searches and obtaining documentation to prepare the attorney to attend closing. Real estate paralegals are also often responsible for the preparation of HUD forms and check disbursements, which involve the mastery of various software applications. Probate and Estate Planning Paralegals often meet with clients to complete intake questionnaires and gather documentation to prepare drafts of estate accountings. Paralegals often gather and coordinate the necessary information for either drafting Wills and other estate planning documents, or, in the instance of probate estates, paralegals gather, coordinate and summarize information to prepare petitions and accountings for the Court. Probate and Estate Planning Paralegals often meet with clients to complete intake questionnaires and gather documentation to prepare drafts of probate and estate planning documents. Probate paralegals often draft all required pleadings and other supporting documents to (1) open the estate, (2) collect and administer the estate, (3) prepare estate accountings, and (4) distribute and close the estate. Estate Planning paralegals also draft Wills, Trusts, Powers of Attorney, annual trust accountings, and other necessary documents to avoid potential tax implications, public probate proceedings, and delays in the distribution of assets to beneficiaries. These paralegals often prepare and maintain a calendar system, providing important estate administration deadlines and court appearances. 4

6 Both Probate and Estate Planning, as well as Family law areas, are ideal for utilization of paralegals because often, the paralegal has the strongest rapport with the client and can assist the client with support in often difficult circumstances. Moreover, the clientele in both of these areas of law are often fee sensitive and cannot afford to pay an attorney hundreds of dollars per hour to rummage through belongings or speak with family members. Advantages of Paralegal Utilization Billing As mentioned with respect to probate and family law clients, there is a growing population of legal service users that are fee sensitive. Not only are individual clients fee sensitive, but also, more and more corporate clients are now becoming more mindful of legal fees and are often shopping around for cut-rate legal services. Utilizing paralegals is the best way to retain and obtain corporate and individual clients who may be fee sensitive or fee savvy, while at the same time, recouping your costs to pay the paralegal s salary and benefits. The hourly billing rate for paralegals generally depends upon the client. Many insurance companies limit the amount an attorney and paralegal can bill for, and in exchange, that insurance company provides several claims and files to the firm (volume versus fee based). Generally speaking, paralegals are billed out at a rate of anywhere from $50 per hour to $120 per hour, with paralegals focused on specialty areas or obtaining national certification often billed at an even higher rate. 5

7 Client Management As mentioned above, in almost every area of law, a paralegal can be invaluable in providing clients, both individual and corporate, with support. Paralegals are often in the office and more available to clients, and therefore, can obtain from clients necessary and important information, and field questions or concerns that clients may have. Paralegals can coordinate with clients about court appearances, depositions, mediations, closings, and can provide clients with important information that might otherwise not be conveyed like proper attire, proper decorum, and what to expect in the process. Document Management With the discovery rules regarding electronically stored information, and the amount of documentation that can be generated in a case, the storage and management of case information and documents are a vital paralegal role. Imagine for a moment a client advising you that in response to a discovery request, he or she has a few thousand s spanning a ten year period that you need to review and potentially produce. Would you know the steps to take to preserve the metadata? Would you be able to produce the s in native format? On the flip-side, imagine receiving several CDs or thumbdrives filled with thousands of different documents with different file types in response to discovery requests that you made to the opposing party. Would you know where to begin to review, process and assimilate that information? This is where having a tech savvy paralegal to process, store or obtain this information for you gives you the ability to spend your time reviewing documents for substance, rather than trying to figure out the logistics of where and how to store them. 6

8 Case Management All legal malpractice carriers require the use of at least two calendaring systems in order to avoid missing deadlines, thereby, creating claims for malpractice. Next to document management, the calendaring and tracking of case-related events is another vital role that a paralegal plays. Having a paralegal track and calendar filing and discovery deadlines is that second fail safe calendaring system that a legal malpractice insurer wants to see in a firm practice. Paralegals calendar deadlines and due dates, and then organize and prepare all of the necessary materials for their supervising attorney in advance of the deadline. Often times, paralegals will draft responsive pleadings or filings in advance of the deadline for a supervising attorney s review. Discovery responses, Requests to Admit, Answers to Complaints, Interim and Final Accountings can all be drafted by paralegals in an effort to have the filings made on time. Paralegals also send reminder letters to opposing parties when discovery responses are not received, and conversely, correspond and work with clients when responses are coming due to ensure timely production. Free Time When paralegals are collecting, organizing and summarizing documents, communicating with clients, tracking and calendaring deadlines and drafting responses, this allows the attorney to work on higher-level, non-paralegal tasks like developing new clients, retaining current clients, providing clients with legal analysis and advice, and complex legal research and writing issues. Newer attorneys can often develop good time management skills by closely working with paralegals who can assist them with more routine tasks, leaving the attorney to focus on the 7

9 complex legal issues of a case while knowing that the factual portion of the case can be attended to by a highly skilled paralegal. Hiring A Paralegal: Where To Begin and What To Look For? Although newspapers like The Burlington Free Press, or 7 Days often reach a broad range of individuals, you should also expect to receive a broad range of applications and resumes for a paralegal position when advertising in those sources. Moreover, you should expect to spend thousands of dollars to place your advertisement to find a paralegal. The best candidates are often found in one of two ways: (1) word of mouth among the legal community or (2) trade associations (the Vermont Bar and the Vermont Paralegal Organization). Other paralegals and attorneys can give the best recommendations and critiques regarding the skill level of a potential paralegal hire. Moreover, organizations with members of the very class of people you are looking for is your best bet to begin locating a paralegal for your practice. Starting with a target audience is much more effective than a broad net. Now that you have an idea of where to begin, who should you look for? As NFPA s definition of paralegal states, a paralegal should be someone who is qualified, through education, training or work experience, to perform legal work that requires knowledge of legal concepts. So what kind of education and training should a paralegal have? Initially, the paralegal field was created to increase access to affordable legal services. At the time, many early paralegals were secretaries in law offices that were given specific tasks to perform under the supervision of an attorney to increase access to legal services. It was commonplace in the 1970 s and 1980 s to promote law firm secretaries into the position of paralegal. While this may still be the practice to some extent in firms across Vermont and the 8

10 rest of the country, with the advent of specific paralegal educational programs, paralegals are less often morphed from other positions within a law firm. In today s job market, most employers require at least some college degree, and most employers prefer a Bachelor s Degree. Because they are expected to perform substantive legal work that is typically performed by an attorney, a paralegal should be no exception to this educational expectation. In order to be a voting member within the Vermont Paralegal Organization, a potential member must meet a combination of education and experience. Generally speaking, the higher the education, the fewer years or months of experience are required, and, conversely, the lower the education level, the higher the number of years of paralegal experience required. For example, a potential member with a Bachelor of Science in Paralegal Studies need only six (6) months of in-house paralegal training to be a voting member of the Vermont Paralegal Organization (VPO), whereas, a potential member with only a high school diploma would require five (5) years of in-house paralegal training to be a voting member of the VPO. Currently, only Burlington College offers a 1-year program with a certificate for completion in Paralegal Studies locally 1. Champlain College has now switched to a four-year Bachelor s Degree Program in Pre-Law/Legal Studies. Because there are no licensing requirements for paralegals, virtually anyone can assume the title of Paralegal. That said, not all Paralegals are created equally, and, without proper training and education, that fact can quickly become apparent. Hiring your brother-in-law s neighbor s daughter who used to be an office cleaner with no legal experience or education is the absolute wrong way to hire a paralegal. A combination of an educational degree (preferably 1 As discussed more fully below, there is an important distinction between being a Certified paralegal, and receiving a certificate from an educational institution in paralegal studies. 9

11 in Legal Studies or Paralegal Studies or Criminal Justice ), and paralegal training are the minimum qualifications for a law office paralegal. 10

12 Understanding Certification of Paralegals By Laurie S. Noyes, RP PACE Registered Paralegal Primmer Piper Eggleston & Cramer PC Many attorneys confuse paralegals holding a paralegal certificate with those paralegals who are actually certified. To most, the two concepts would seem interchangeable, but they are in fact very different. Paralegal Certificate A paralegal certificate speaks to the level of education earned by the paralegal. Although in past years, many paralegals were legal secretaries who had morphed into paralegal positions either by promotion or longevity, the current paralegal profession touts higher education credentials. Paralegals may have Associates Degrees, Bachelor s Degrees, or even Masters Degrees. A common education level achieved by paralegals is the Associates Degree or Bachelors Degree, in combination with a paralegal certificate. Prior to the development of today s bachelor and associate degree programs that major in legal/paralegal studies, the certificate program was developed as a one-year course of instruction centered on legal studies that could be earned in addition to an underlying degree in any field. For example, a paralegal may have an Associate s Degree in criminal justice, with a paralegal certificate, or bachelor s degree in political science, coupled with a paralegal certificate. The certificate covers basic legal concepts and principles, and prepares the paralegal for an entry position in the field. The certificate program remains a popular option for those individuals in the work force who are either switching careers or had majored in a field that did not take them into the career they intended. Certified Paralegal A certified paralegal is a paralegal that has passed a qualification examination of a professional association. Paralegal certification is generally a voluntary 11

13 process obtained through or regulated by some non-governmental professional association. The non-governmental agency or association grants recognition to individuals who have met certain predetermined qualifications, specified by that agency or association. Such qualifications can include graduation from an accredited program, taking a qualifying examination, completion of a certain amount of work experience, or a combination thereof. Certification can be used as a regulatory device by state governmental agencies as well (i.e., Certified Public Accountant). Currently there are three organizations nationally that provide certification of paralegals: NFPA (National Federation of Paralegal Associations), NALA (National Association of Legal Assistants), and NALS. Each organization has developed and administers a qualification examination of its own, which results in similar designations or credentials. NFPA has the RP designation, which means Registered Paralegal or PACE Registered Paralegal, while NALA uses both the CP (Certified Paralegal) or CLA (Certified Legal Assistant) designations for those individuals who have passed their qualification examination. NALS uses the PP (Professional Paralegal) designation. These credentials may be used only by paralegals passing the qualification examinations, and must be maintained by fulfilling mandatory CLE quotas set by the organization. Both NFPA and NALA s examinations are intended for paralegals with more substantive experience, and paralegals intending to sit for the exam must meet certain educational and/or criteria to be eligible to the take the exam. NFPA s eligibility requirements state that the paralegal must have (1) an associate s degree plus six years of substantive paralegal experience, or (2) a bachelor s degree in any course of study plus three years of substantive experience, or (3) a bachelor s degree in a paralegal studies program with two years of substantive paralegal experience. In addition, there 12

14 is a grandfathering exception that allows paralegals with at least four years of substantive paralegal experience prior to December 31, 2000 to take the examination. The NFPA examination is a four-hour exam consisting of 250 questions, split through five domain areas. The domains tested include (I) Administration of Client Legal Matters, (II) Development of Client Legal Matters, (III) Factual/Legal Research, (IV) Factual/Legal Writing, and (V) Office Administration. These domains cover all necessary elements of paralegal work: effective communications, ethics, legal research and writing, judgment and analytical ability, and substantive law. Over the last few years, NFPA has also created an entry-level examination intended for students graduating from paralegal programs to test their skills, and gain an edge in entering the workforce. Successful completion of this entry-level examination results in the CRP designation, and is intended to give employers some reassurance that new paralegal recruits have the basic skills necessary to complete the functions of entry level paralegals. Paralegal certification is an independent, unbiased measurement of the paralegal s ability to successfully fulfill the functions of a paralegal. By obtaining certification, a paralegal has proven that he or she has achieved a nationally recognized and standardized level of professional achievement, and that they will be able to provide quality service to their employer and to their employers clients. 13

15 Laura E. Gorsky Born and raised on her family s dairy farm in Update NY, Laura E. Gorsky offers a rural mind to the law and is happy to call Vermont her home. Laura recently completed a four year Law Office Study clerkship under the supervision of David M. Sunshine. Laura has worked for the Law Office of David M. Sunshine PC for 4 ½ years and serves as the office s sole paralegal. She received a B.S. from Cornell University and a Paralegal Certificate from Woodbury College. Laura will sit for the Vermont bar exam this summer. She is also an active member of Central Vermont American Inns of Court and Vermont Paralegal Organization. Ashley LaRose, RP Ashley LaRose, RP is a real estate paralegal with the firm Doremus Kantor and Zullo in Burlington, Vermont. She has worked as a paralegal in the real estate field for approximately four years doing residential and commercial transactions, as well as foreclosure work. Ms. LaRose obtained her Bachelor's Degree in Paralegal Studies from Champlain College 2008, and recently achieved the designated of Registered Paralegal in October, Ms. LaRose is also the current the Treasurer for the Vermont Paralegal Organization. Barry Butkus Barry Butkus is now retired, but offers his services, on a part time basis, as a Contract/Freelance Paralegal through his own company, Champlain Valley Paralegal Services, LLC, d/b/a Champlain Paralegal. With a main concentration in probate estate administration, Barry has over 13 years of paralegal experience, the last 8 years with Lisman Leckerling, P.C. Carie Tarte Carie is a criminal and civil litigation Paralegal with the law firm of Sheehey Furlong & Behm in Burlington. Carie has over 15 years of experience in litigation, as well as insurance defense and insurance services/third Party Administration. She received her Bachelors of Science in Paralegal Studies/Pre-Law from Rivier College in Nashua, New Hampshire. Carie is President of the Vermont Paralegal Organization and is a board member of the Boys and Girls Club of Greater Vergennes.