NEBRASKA PARALEGAL ASSOCIATION
IN BRIEF
VOLUME MMXVII ISSUE 4
DECEMBER 2017
IN THIS ISSUE: From the President ..... 1 Save The Dates............ 5 The Crucial Role of the Project Manager in eDiscovery ................... 8 District I News .......... 11 Top Ten Resolutions for 2017 .......................... 13 Student Education Award Info ................ 14 Federal Judges Give EDiscovery Advice at InFusion 2017 ........... 15 Juror Impartiality ...... 18 ACP Scholarship ........ 19 Are You Ready to Take the Certified Paralegal Exam ......................... 20 Relay for Life Fundraiser Info ........................... 21
www.nebraskaparalegal.org
FROM THE PRESIDENT: BRIDGET STUHR, ACP Happy Holidays! I hope you’ve all had an opportunity to take at least a few moments away from the hustle and bustle surrounding the chaos of the end of the year, to spend some welldeserved quality time with your family and friends. I know…for many of us, that’s easier said than done. Working in the legal field is hard and sometimes unreasonably demanding, especially this time of year, but as paralegals, that’s the kind of atmosphere we thrive in. For me, this year has been no exception. In 15 years, this year has been one of the worst, if not THE worst, fourth quarter I have had to battle through. I have spent more time making revisions than making cookies. More time shuffling the workload on my plate at work than arranging plates of Christmas goodies at home. More time sending document comments and signature pages than sending Christmas cards. More time talking to my attorneys about the impossible demands of our current deals than talking to my children about the true meaning(s) of the season. I know I’m not alone. It’s a sacrifice many of us make every year, every month, maybe even every day. We are hardworking. We are loyal. We are dependable. We are team players and will do whatever is needed to complete the task at hand. It’s what makes us ridiculously good at what we do. However, being that dedicated to our jobs can be stressful and we need to remember our options. As I have mentioned before, there is power in numbers. If you find yourself overwhelmed, you don’t need to struggle alone. Take advantage of the people and the resources the Nebraska Paralegal Association (NePA) has available. Whether you need suggestions for how to streamline a process, recommendations for a last-minute translator or court reporter, or if you are simply looking for someone to join you for happy hour after a stressful day at work, NePA members are a fabulous network of people who, at a moment’s notice, would drop what they’re doing to help. Our members are our best asset. Without you, our association wouldn’t exist. NePA was founded as a group of people working together for a common purpose and our purpose is to (including, but not limited to) establish fellowship among our members and the legal community, promote the paralegal profession, and provide an opportunity to advance and exchange education, experience and information to better ourselves. (Continued on Page 3)
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The Publications Committee hopes you’ve all had a very Merry Christmas and we wish you a Happy New Year! Publications Committee Members Shannon Persoma, Chair Jill Lorkovic Kimberly Brown, ACP Amber Roberts, ACP Kim Hansen Nicole Day, ACP Do you like what you’ve seen in this issue? Do you have questions or comments? Notice an error? Please let us know at: Shannon.Persoma@koleyjessen.com.
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FROM THE PRESIDENT CONTINUED In an attempt to make it through the final push of the year, don’t be afraid to reach out to one (or more) of the members of NePA (and yes, I have called on a few of them over the last few weeks, even if it was just to vent). They may not be able to physically come to your aid, but they are a great group of people who are always willing to provide whatever support, advice, tips, etc. they can. As you approach the end of year (and beyond), I hope you take advantage of the networking and life-long friends you will gain by reaching out to members of NePA, whether it is via email, phone or in person as you attend various NePA events scheduled for the year ahead. The members of the Nebraska Paralegal Association may very well be the best support system you have during the stressful times at work. Don’t let them, and the opportunity for them to support you, slip away. Here’s to a happy (and more relaxing) new year!! Cheers!
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SAVE THE DATES January 9th - BOD Meeting (Koley Jessen) January 24th - District I Luncheon (Anthony’s Steakhouse) - Ann Atkinson, 10 Essential Soft Skills for Paralegals February 7th - District II Luncheon February 28th - District I Luncheon (Anthony’s Steakhouse) - Lance Kotschwar, True Stories of a Former Washington Lobbyist March 6th - BOD Meeting (Kutak Rock) March 28th - District I Luncheon April 2nd (6:30-8:30) - Relay for Life Fundraiser (Corky Canvas in Midtown, Omaha) April 20th - Spring Seminar and SemiAnnual Meeting (Mahoney) May 9th - District II Luncheon
RELAY FOR LIFE 2018 More info coming soon!
May 23rd - District I Luncheon June 5th - BOD Meeting (Whitmore) June 27th - District I Luncheon July 11-13th - NALA Convention (St. Louis) August 8th - District II Luncheon
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THE CRUCIAL ROLE OF THE PROJECT MANAGER IN EDISCOVERY Dealing with electronically stored information (“ESI”) is complex. The details to be handled are endless, and the skill set needed to do it effectively is highly technical. Those of you who deal with ESI are nodding your heads, and those of you who let someone else do it truly do not understand the complexity that is involved. That’s ok, but you need to learn so you can have the right people doing the right jobs. And you need to learn to appreciate the expertise that they bring to the table. By way of example, remember the last time you tried to search for an email you knew was in your inbox but you couldn’t find it, no matter how many searches you tried? The systems that we use to create, send, store and manage ESI were never designed to pull data for purposes of litigation. That means that to engage in ediscovery effectively, you need people who think about how data functions, where it lives, and the complexities of the various forms of data. As a litigator, you need someone to handle that data and get it into a format that you can look at. That person is your project manager. You may call the role something else at your firm (e.g., litigation support manager), but the role is the same. As I work with clients across the country - large firms, small firms, corporations, government offices - I see lawyers assuming that picking up the complexities of ESI and handling data is something their paralegals can just do. I’m here to tell you that it’s not. And understanding the difference between these two roles may help you understand why you aren’t getting the help you need in ediscovery.
If you are expecting your paralegal to have the skill set necessary to manage ESI, including setting up and managing your databases, without some serious training, you are putting yourself and your clients at risk. Let’s look at the traditional role of the paralegal — one that is critical to the success of any good litigator. Your practice may vary to some degree, but as a general rule, these are some of the broader tasks of a paralegal:
Managing the case file Sending out subpoenas Setting up depositions (court reporters, etc.) Tracking productions from all parties Organizing witness binders Deposition preparation Handling appellate filings Creating trial exhibits Preparing for trial
Compare and contrast that list with the duties of a project manager:
Working with the litigation team to identify key custodians and sources of ESI for collection Working with IT at the client to figure out how to collect effectively and efficiently from the client Performing or managing the collection process with a provider Receiving data Loading data and resolving any issues with data - examples can include corrupted files, records without files attached, rendering issues, etc.
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THE CRUCIAL ROLE OF THE PROJECT MANAGER CONTINUED
Performing a check that all required metadata has been received Ensuring documents are OCR’d as needed Setting up a database for a matter Creating searches, filters, and tags, and utilizing the features of the review platform to enhance the lawyer’s goals for the case Creating redactions, privilege sets, and production sets Doing quality control on production sets according to defined parameters for the case, including date ranges, custodians, topics, etc. Sending out productions Loading productions from other parties and identifying holes in the productions or metadata provided
See? The two sets of skills and requirements are completely different. I want to be clear — there are many paralegals out there who both have the capability and desire to learn the skill sets of a project manager, so that may be a viable path. But they have to have training, and their roles need to be defined. If you are using your paralegals for ediscovery, find out what they really know and what they don’t know. You can outsource some or all of the required skill sets, but you need to identify where the gaps are and what you need to fill. Your paralegal manages the matter; your project manager manages the database of ESI. The paralegal is your expert on case knowledge; the project manager is an expert on your review software. The paralegal knows who everyone is at all parties, what has happened in the case, and the case status. Your project manager knows who the custodians are with data, how many productions have been made and how, and what can be done to better manage the database more efficiently for your client. The project manager role is new - it’s unique to dealing with ESI. You need one, and you need one who knows the technology you are using like the back of his or her hand. Not all firms have enough work to have a full-time project manager, that’s true. So train up those paralegals at user conferences for the software you are using, and whatever methods you have so they can do the job you are asking them to do. Or get outsourced project management from your software provider. Acknowledge the difference in skill sets. You wouldn’t have a tax lawyer try your commercial litigation case, would you?
Kelly Twigger gave up the golden handcuffs of her Biglaw partnership to start ESI Attorneys, an eDiscovery and information law Firm, in 2009. She is passionate about teaching lawyers and legal professionals how to think about and use ESI to win, and does so regularly for her clients. The Wisconsin State Bar named Kelly a Legal Innovator in 2014 for her development of eDiscovery Assistant— an online research and eDiscovery playbook for lawyers and legal professionals. When she’s not thinking, writing or talking about ESI, Kelly is wandering in the mountains of Colorado, or watching Kentucky basketball. You can reach her by email at Kelly@ediscoveryassistant.com or on Twitter: @kellytwigger. This article first appeared in Above the Law on 9/12/17 at https:// abovethelaw.com/2017/09/the-crucial-role-of-the-project-manager-inediscovery/?rf=1. Reprinted with permission. Get more information at www.esiattorneys.com or www.ediscoveryassistant.com.
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DISTRICT I NEWS - KIM BROWN, ACP NePA's District I provided two fantastic speakers this fall! In October, Sara McCue, Associate Attorney with Baird Holm, LLP, presented It's Raining Cats, Dogs, and Emotional Therapy Monkeys. Sara's presentation covered the Fair Housing Act and the Americans with Disabilities Act and how each relate to assistance animals, service animals, and emotional support animals. In November, Ryan Sothan, Outreach Coordinator with the Nebraska Attorney General's Office, presented Elder Abuse: Protecting Data & Money from Cybersecurity Threats. Ryan's presenSara A. McCue tation covered identify theft, consumer protection, the Equifax breach, and general financial protection for you and your elders. Both presentations prompted great questions from attendees. NePA provided 1 hour of Continuing Legal Education (CLE) credit during the November luncheon. We hope that everyone enjoyed that format as we will provide another CLE opportunity in February 2018. Following the Ryan Sothan November lunch, we asked the attendees to complete a short survey for feedback. For those of you who completed the survey...THANK YOU! The top two reasons for attending were the presentation topic and the CLE opportunity. We also received constructive feedback from the members relating to: (1) the timing of food service (which has been an issue in the past – we are working hard with Anthony's to resolve this issue), (2) the issues relating to the loud group next to our presentation (we will work with Anthony's to try and prevent this in the future); and (3) NePA's late notification to the members of the luncheon date (members want more advance notice, which we will provide in the future). See below for our next two meetings. We hope to see you there! Future Meetings: January 24, 2018 Ann Atkinson Former NALA President
10 Essential Soft Skills for Paralegals. February 28, 2018 Lance Kotschwar Chief Ethics & Compliance Officer at Gavilon
True Stories of a Former Washington Lobbyist. (1 hr CLE)
“Ryan Sothan was the best speaker I have heard in a long time, maybe ever. Thank you for arranging his presentation today.” - Linda Hess, ACP
10 Essential Soft Skills for Paralegals Speaker: Ann Atkinson January 24, 2018
Past President of NALA
Cost: $12 Members $17 Non-members
Anthony's Steakhouse 7220 F. Street Omaha, NE 68127 11:00-11:30 Networking 11:30-12:00 Lunch 12:00-12:30 Education RSVP at https://www.surveymonkey.com/r/D9NKNYHÂ by January 19, 2018
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TOP TEN NEW YEAR’S RESOLUTIONS FOR 2017 1. Lose Weight/Healthier Eating 2. Life/Self Improvements 3. Better Financial Decisions 4. Quit Smoking 5. Do more exciting things 6. Spend More Time with Family 7. Work out more often 8. Learn something new on my own 9. Do more good deeds for others 10.Find the love of my life
21.4% 12.3% 8.5% 7.1% 6.3% 6.2% 5.5% 5.3% 5.2% 4.3%
These resolutions were pulled from https://www.statisticbrain.com/new-years-resolutionstatistics/ and are for entertainment purposes only. The picture is from PicturesFunny.net and was posted at http://laughshop.com.
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877-567-5669 RUBY SPONSOR
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$500.00 STUDENT EDUCATION AWARD Applicants must be Nebraska residents or Members of NePA admitted and accepted in a paralegal program at an accredited University, College, Community College or Business College located in Nebraska.
Application deadline is March 1, 2018 Selection of scholarship recipients shall be made without regard to race, color, creed, sex, age, national origin or marital status. For more information on eligibility requirements and application procedures visit: http://
nebraskaparalegal.org/paralegal -students/ Have questions? Contact Joyce Buller at 402-319-7926.
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FEDERAL JUDGES GIVE E-DISCOVERY ADVICE AT INFUSION 2017 LegalTechNews.com reports that a recent panel discussion among federal judges resulted in a wealth of advice for legal teams that need guidance on ediscovery. The judges - retired Magistrate Judge Frank Maas, Magistrate Judge Andrew Peck of the Southern District of New York, and District Judge Xavier Rodriguez of the Western District of Texas - conferred at inFusion 2017 in a session titled “State of E-Discovery: A Candid E-Discovery Conversation Between 3 Judges.” According to the article, the conversation generated four strains of advice. One is to “be mindful of new data types.” According to Maas, there are always cutting-edge communication technologies that pose problems for e-discovery practitioners. “Back in the ‘90s it was email, now it’s text messaging and other media like that. There is the problem that corporations by and large don’t know where their data is, who is keeping it, or where it is kept,” he said. Judge Rodriguez noted that texting is particularly nettlesome because it’s a method that tends to “bypass all of a company’s [communication] systems.” The judges also encouraged more communication with outside counsel. Peck suggested that often the outside counsel provides arguments in court that are not entirely accurate, owing to a lack of sufficient communication with corporate counsel. “Document everything” was also guidance the judges agreed upon. While the 2015 amendments to the U.S. Federal Rules of Civil Procedure give more leeway in deleting data in-house, organizations must still be able to demonstrate why they are not keeping the records. Rodriguez encouraged corporate counsel to “loop back in with outside counsel to get their opinion” when deleting data. The fourth prevailing piece of advice was to obtain Federal Rules of Evidence 502(d) orders. The order essentially stresses there is no waiver of attorney-client privilege or work product privilege during the process of production. According to Peck, “It is akin to malpractice if you’re the producing party and you have more than five documents to produce, to not consider or obtain a 502 (d) order.” This article first appeared in the November/December issue of Information Management, © 2017 ARMA International, www.arma.org. Reproduced with permission.
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DIAMOND SPONSOR
True Stories of a Former Washington Lobbyist Speaker: Lance Kotschwar February 28, 2018 Cost: $12 Member $17 Non-Member
Chief Ethics & Compliance Officer Gavilon
Anthony's Steakhouse 7220 F, Street Omaha, NE 68127 11:00-11:30 Networking 11:30-12:30 Education & Lunch RSVP:Â https://www.surveymonkey.com/r/DQK736V by February 23, 2018
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Juror Impartiality: The Equivocal Juror Article I Section 22 of the Missouri Constitution holds that litigants have a right to trial by a fair and impartial jury of twelve qualified jurors. A qualified juror has been defined as one who is “in a position to enter the jury box disinterested and with an open mind, free from bias or prejudice.” Catlett v. Ill. Cent. Gulf R.R. 793 S.W.2d 351, 353 (Mo. Banc 1990). The Missouri Supreme Court held earlier this month in Thaddeus Thomas et. al v. Mercy Hospitals East Communities, et. al, No. SC96034 that “The trial court is in the best position to evaluate a potential juror and is afforded broad discretion in determining whether the potential juror is ultimately qualified to serve.” The Court provided wide discretion to the trial judge’s ruling regarding the impartiality of a prospective juror. The Supreme Court was addressing Plaintiff’s motion to strike a prospective juror for cause that was overruled. The case involved a medical negligence claim, alleging fault of the nurses during the delivery of a child through a cesarean section. The prospective juror in question—juror 24—admitted during venire by the Plaintiff’s Counsel that she might lean toward the defendant hospital because her sister was a nurse for a related hospital and stated that she would “probably” be slightly in favor of defendant. After Plaintiff’s Counsel moved to strike the juror for cause, the judge gave the attorneys an opportunity to rehabilitate juror 24. When questioned by defense counsel, she noted that she could put aside her sister’s relationship with the hospital and “do [her] best currently decide this case based on what [she] hear[s] in the courtroom, not what her sister has told [her]. The Plaintiff still moved to strike for cause, saying she only stated that she would “do her best.” The trial court overruled the motion, seated Juror 24, and she took part in the verdict which was in favor of defendant hospital. Plaintiff moved for a new trial based on the trial court’s overruling of the motion to strike prospective juror 24. On appeal, the Supreme Court of Missouri held that there are two types of bias that are proscribed by Section 494.470 of the Missouri Code. One involves those jurors who have formed an opinion on the material facts of the case; the other type of bias focuses on opinions of larger issues. The Courts treat these types of biases differently. The Court reiterated the holding in State v. Debler, 856 S.W.2d 641 (Mo. banc 1993) and held that the second type of bias only disqualifies a juror if the prospective jurors’ views would preclude following the instructions given by the court, noting that these types of biases exist in all prospective jurors to some extent. The Court found that this was the type of bias at issue in the case, and thus, the juror needed to be disqualified only if it was found that her bias precluded her from following instructions given by the Court. Importantly, the Court held that it is not improper for the trial court to rely on the juror’s own assessment of her ability to remain impartial, and thus, the trial court’s assessment of juror 24 was not an abuse of discretion. The Court also held that where answers are equivocal as to impartiality, as was the case with juror 24 before the second round of questioning, “it is incumbent upon the trial judge to question the juror further to either confirm the lack of qualifications to serve, or to rehabilitate the venireperson.” The Court noted that failure to do so “may undercut any basis for a trial judge’s exercise of discretion and constitute reversible error.” (Internal citations omitted). This sentence should be flagged as it merely states that it may constitute reversible error. The Court goes on to hold that “mere equivocation is not enough to disqualify a juror.” Further demonstrating this point, the Court affirmed Joy v. Morrison, 254 S.W.3d 885 (Mo. banc 2008), which held that there was no violation of the right to a jury trial when the prospective juror was silent while the group of prospective jurors were asked if they believed they could follow the trial court’s instructions or could keep an open mind until they had heard all of the evidence. This presents the question as to what would occur if a juror was intentionally silent when directly asked these types of questions.
This post first appeared 8/24/2017 on the legal blog Byte Back, written by Natalie Holden, copyright © 2017, Husch Blackwell LLP. Reprinted with permission. Get more information at www.huschblackwell.com or https:// www.huschblackwell.com/professionals/natalie-holden.
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- WANTED ACP SCHOLARSHIP APPLICANTS The NePA ACP Scholarship Committee is seeking applications for the
ACP SCHOLARSHIP Applications are due March 1st, 2018. Details can be found at: NebraskaParalegal.org/membership/scholarships
REWARD: If chosen, a scholarship to advance your Paralegal Studies and earn the ACP credential. Email NePAACPScholarship@yahoo.com with any questions.
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Are You Ready to Take the Certified Paralegal Exam? Written by Kai Ellis, ACP, CAS, CEDS In 2017, NALA announced that there would be substantial changes to the format of its Certified Paralegal (CP) examination.i Beginning in 2018, the test will be administered in two parts, a Knowledge Exam consisting of multiple choice questions and a Skills Exam consisting of a written assignment. Candidates will be required to pass the Knowledge Exam before they are eligible to sit for the Skills Exam portion. The new system of on-demand testing will remove deadlines to apply for the examination. Candidates will be able to apply when they are eligible. Once NALA approves an application for the Certified Paralegal examination, candidates will have 365 days from the approval date to sit for the Knowledge Exam. If the candidate does not take the Knowledge Exam within 365 days of the initial approval date, NALA will return the application to the candidate. The examination fee is nonrefundable. Since the announcement of this new format, prospective applicants have expressed a great deal of concern about how to prepare for and study for the exam and the availability of study materials. In addition to the tried and true methods and study materials, NALA rolled out a new practice exam platform. CP Prep Courses that were presented live at the 2017 NALA Conference this past July are available as on-demand webinars. Applicants may also join the NALA – CP Exam Review Online Study Group on Facebook.ii This is a great platform where CP/ACP’s and candidates share tips and tricks for studying and study materials. Besides the change to the on-demand, two-part exam format, the new Exam will feature some new subjects. Previously the exam was broken down into five sections with four substantive law sections: iii 1. Communications 2. Ethics 3. Legal Research 4. Judgement & Analytical Ability (which contained an essay) 5. Substantive Law » American Legal system » Civil Litigation » Contracts » Business Organizations The Knowledge Exam will consist of multiple choice questions covering the topic areas of: United States Legal System Civil Litigation
Contracts Corporate/Commercial Law Criminal Law and Procedure Estate Planning and Probate Real Estate and Property Torts Professional and Ethical Responsibility
The Skills Exam will consist of a written assignment administered during four testing windows each year: February, April, July and October One thing that has worked for most successful examinees, those that are now CP’s, is that they studied and practiced. They took the practice exams over and over, under timed and non-timed circumstances. When they could not answer or understand a question they researched it and discussed it with other candidates, CPs, and attorneys. NALA has worked with experts in the field, attorneys, educators, and leaders in the paralegal profession to put together an extensive bank of practice questions. Reading through, getting to know, outlining, and studying the primary source of law for many of these subjects is also important. Candidates should be familiar with the layout and specific rules from the Federal Rules of Civil Procedure, the Uniform Commercial Code, NALA’s Code of Ethics, and the American Bar Associations Model Rules of Professional Conduct. Some paralegals recommend textbooks or Law in a Nutshell series books helpful to study for some of the substantive sections with which they are less than familiar. Strunk & White’s, The Elements of Style, and the Harvard Bluebook: A System of Citation are also great resources for candidates. In addition, there are several other sources that many applicants have found to be helpful. Many of NALA’s affiliated associations put together study courses or review groups several times a year. YouTube also offers several resources that candidates have found invaluable: Writing a Legal Memorandum for the CP:CLA with Leanne the Lawyer is mentioned time and again as having been invaluable in preparing for writing the essay on the exam (currently the Judgement & Analytical Section which will become the Skills Exam.).iv I recommend, for those that like flash cards, there is quite a bit of benefit in preparing your own and keeping them handy and studying whenever the opportunity arises. An internet search of Flashcards + NALA CP exam will provide flashcard options.
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Are You Ready to Take the Certified Paralegal Exam? In short, studying for and taking the CP Exam can seem daunting, especially for those that will be in the first wave sitting for the 2018 Knowledge Exam. You may feel that you are in uncharted territory, but as with those that have been taking the exam since its inception in 1976, the best advice and path towards success is studying and practice, practice, practice! i ii iii iv
https://www.nala.org/sites/default/files/files/users/NALA%202017%20Exam%20Announcement.pdf https://www.facebook.com/groups/457104991164031/ https://www.nala.org/sites/default/files/files/users/CP%20Program%20Effective%20through% 20September%202017.pdf https://youtu.be/UcfQ2g3w3iY
Kai works as a civil litigation paralegal focusing on complex insurance coverage litigation. She obtained her BS in Paralegal Studies and is a NALA certified Advanced Certified Paralegal (ACP) in Trial Practice, Discovery, eDiscovery, and Workers Compensation; a California Advanced Specialist (CAS) in Discovery; and a Certified eDiscovery Specialist (CEDS). She recently taught Civil Litigation at the College of the Canyons in Valencia, California. Kai has served as an officer and director of the Los Angeles Paralegal Association and the California Alliance of Paralegal Associations (CAPA). Reprinted with permission of Kai Ellis and the National Association of Legal Assistants, Inc. This article originally appeared in the November/December 2017 issue of FACTS & FINDINGS, the bimonthly journal of NALA. Inquiries should be directed to NALA, 7666 E. 61st, Suite 315, Tulsa, OK 74133, or by e-mail to nalanet@nala.
RELAY FOR LIFE FUNDRAISER April 2, 2018 6:30-8:30pm Corky Canvas in Midtown Join us for a fun night of painting, music, and good friends. NePA’s Relay for Life team is once again hosting a night at the Corky Canvas in Midtown in Omaha. We’ll be doing the painting to the right. Use the link below to register. Cost is $35 and $12 of every registration will go to our Legal Beagles team. We need a minimum of 15 people to hold the event and it’s open to the public. Bring all your friends and family (16 and older) and spread the word. Hope to see you there!
Register at https://www.corkycanvas.com/event/1913/relay-forlife-fundraiser-open-to-the-public