Solutions Manual For Paralegal Today The Legal Team at Work 8th Edition By Roger LeRoy Miller, Mary

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 1: Today’s Professional Paralegal

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 1: Today’s Professional Paralegal

Table of Contents Answers to the End-of-Chapter Questions .................................................................................. 1 Questions for Review ................................................................................................................................ 1 Ethics Question.......................................................................................................................................... 3 Practice Questions and Assignments......................................................................................................... 4 Group Project ............................................................................................................................................ 6 Video Questions ........................................................................................................................................ 6

Answers to the End-of-Chapter Questions Questions for Review 1. What is a paralegal? Is there any difference between a paralegal and a legal assistant?

Answer: A paralegal is a lawyer’s assistant. A paralegal may be qualified by education, training, or work experience for employment by a lawyer, law office, corporation, government agency, or other entity, and is an assistant who performs specifically delegated substantive legal work for which a lawyer is responsible.

Paralegals are employed by lawyers or other law offices, or assist attorneys in the delivery of legal services, but are not required to work for a lawyer.

The terms paralegal and legal assistant are no longer used synonymously. A paralegal performs substantive legal work that a lawyer could perform subject to the unauthorized practice of law requirements in their state, while legal assistants perform secretarial and administrative functions.

2. What types of educational programs and training are available to paralegals? Must a person meet specific educational requirements to work as a paralegal?

Answer: The types of educational programs and training available to paralegals include certificate programs and degree programs. The degree options include an associate’s degree and a bachelor’s degree. An associate’s degree is a two-year degree, typically obtained from a community college. A bachelor’s degree is a fouryear degree obtained from a college or university.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

1

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 1: Today’s Professional Paralegal

There are two types of certificate programs: postgraduate certificate and paralegal certificate programs. The postgraduate certificate is available to students who have already obtained a bachelor’s degree from a college or university. A paralegal certificate is available to anyone who has obtained, at a minimum, a high school diploma or its equivalent.

Currently, California is the only state with specific educational requirements for paralegals. In the other states, the job market, however, typically demands that a paralegal obtain a certain level of education in order to be employable.

3. What role does the American Bar Association play in paralegal education?

Answer: The ABA plays the role of ensuring quality in paralegal education through its paralegal program approval process. The ABA has played an active role in paralegal education programs since 1974, when it first established a set of educational standards for paralegal programs. Paralegal programs that meet standards established by the ABA are called ABA-approved programs.

4. What does certification mean?

Answer: Certification means recognition by a private professional group or a state agency that an individual has met specific standards of proficiency by taking and passing an exam administered by this group. It is not the same as a paralegal certificate, which means that a paralegal has successfully completed a specific course of study.

A CLA is a certified legal assistant (a CP is a certified paralegal for those who prefer the term paralegal) whose legal competency has been certified by NALA following an examination to test the legal assistant’s knowledge and skills.

An APC program is a credential awarded by NALA to a CP or CLA whose competency in a legal specialty has been certified based on an examination of his or her knowledge and skills in the specialty area.

PACE stands for Paralegal Advanced Competency Exam. This is a certification exam that was developed by NFPA for those with two years of experience who have met specific educational requirements. Those who pass it are designated as Registered Paralegals or RPs. 5. List and describe the skills that are useful in paralegal practice. Do you have these skills?

Answer: Skills that are useful for paralegals include the following: • Analytical skills are needed for legal investigation, legal research, and legal writing. Also helpful is the ability to synthesize, or put together, facts and legal concepts.

• Communication skills (including reading, writing, speaking, and listening skills) are critical to the legal profession.

• Interpersonal skills, including good listening skills, are needed to communicate and interact effectively with supervising attorneys, legal secretaries, and other © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

2

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 1: Today’s Professional Paralegal

•

• •

•

support staff in the law office, as well as other legal professionals outside of the office, clients, and witnesses.

Computer skills are necessary for survival in today’s law office. Word processing, document control, calendaring, and client billing procedures are all tasks that may be done on computers in law firms.

Organizational skills are essential for organizing your time, calendaring cases, creating procedural checklists, getting documents filed, and other similar tasks.

One important skill is the ability to keep confidences, which is the ability to keep client information confidential. It is a requirement of the legal profession that is imposed on attorneys and indirectly on their paralegals by the ethical rules that will be discussed in Chapter 4.

Another important skill is the ability to behave professionally at all times, which means being reliable, responsible, honest, unbiased, assertive, detailoriented, and accurate even under pressure, as well as professional in appearance, demeanor, and attitude.

6. Why is the paralegal profession an expanding field?

Answer: Growth is occurring in the paralegal profession because law firms and other employers with legal staffs are hiring more paralegals to lower the cost—and increase the availability and efficiency—of legal services. [return to top]

Ethics Question 1. Richard attends a six-month paralegal course and earns a certificate. In the West Coast city where he lives, certified paralegals—those with a CP or a CLA designation—are in great demand in the job market. Richard responds to a newspaper advertisement for a certified paralegal, indicating that he is one. Has Richard done anything unethical? What is the difference between a certificate and certification?

Answer: Richard has not violated any of the ethical or legal rules of the legal profession. Assuming that he knew the difference between holding a paralegal certificate and a CP designation, however, he has violated personal ethics in misrepresenting his status as a CP. The difference between a certificate and certification is that a certificate indicates a level of education, like a degree.

Certification, on the other hand, indicates that a person has passed an exam evidencing that the person has attained a certain level of knowledge and/or skill in a particular area. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

3

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 1: Today’s Professional Paralegal

Practice Questions and Assignments 1. Using the material found in the chapter, identify which of the following employees are paralegals: a. Graciela works in the file room of a major law firm checking out and returning files as they are needed by attorneys. b. Maria does all of the typing, filing, and answering phones for two attorneys in a small law office. c. Tameko drafts legal documents, meets with clients, and assists her supervising attorney with trials. d. Majora, who has an MBA, supervises the day-to-day operations of a 250-attorney law firm.

Answer: A paralegal is a person qualified by education, training, or work experience who is employed or retained by a law office, corporation, government agency, or other entity and who performs specifically delegated substantive legal work, for which a lawyer is responsible. Only Tameko (answer c.) is performing substantive legal work and would be considered a paralegal.

2. Using the material in the chapter, identify which of the following laws are substantive laws and which are procedural laws: a. A law requiring a person to be 16 years old to obtain a driver’s license. b. A court rule requiring that an answer to a complaint be filed within 21 days of receipt of service of process. c. A law requiring a manufacturer of an automobile to replace the vehicle or refund the purchase price if it cannot be repaired. d. A law requiring civil lawsuits exceeding $25,000 to be filed with the circuit court.

Answer: Substantive law includes all laws that define, describe, regulate, and create legal rights and obligations. Procedural laws establish the methods of enforcing the rights established by substantive law. Answers a. and c. create legal rights and obligations, while b. and d. establish methods to enforce these rights, and are thus procedural laws.

3. Which national paralegal organizations offer paralegal certification exams and what are the certifications called? Do states offer certifications for paralegals? Is a state certification a license to practice law? Explain your answer.

Answer: Paralegals who meet the background qualifications set by NALA are eligible to take a two-day, comprehensive examination to become a Certified Paralegal (CP). NALA also sponsors the Advanced Paralegal Certification (APC) program (previously called the Certified Legal Assistant Specialty, or CLAS).

Paralegals who have certain levels of education and experience can take the Paralegal Advanced Competency Exam (PACE®) through NFPA. The NFPA offers two

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

4

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 1: Today’s Professional Paralegal

credentialing exams. The first one, called the Paralegal CORE Competency Exam, covers general issues and ethics and provides designation as a Certified Registered Paralegal. Those who pass the exam may use the designation CRP after their name.

Paralegals with more experience may sit for the PACE examination. The Paralegal Advanced Competency Exam (PACE), if passed, enables one to use the designation “RP.” NALS offers the Professional Paralegal (PP) certification examination to paralegals who have five years of work experience or possess certain educational credentials. In addition, the American Alliance of Paralegals, Inc. (AAPI), also provides a Paralegal Certification Program for paralegals who have met specific educational or practice requirements.

Some states, including California, Florida, Louisiana, North Carolina, Ohio, and Texas have implemented voluntary state certification programs. In 2012, the Washington State Supreme Court adopted APR 28, entitled “Limited Practice Rule for Limited License Technicians.” Under the new rule, persons who are trained and authorized by a newly established Limited License Legal Technician Board will be able to provide technical help to the public on civil cases. Certification refers to formal recognition by a professional group or state agency that a person has met the standards of ability specified by the organization, but does not provide a license to practice law.

4. Tom and Sandy are having coffee after their paralegal class. The instructor discussed the recent change in the ABA definition of a paralegal, which no longer includes the term legal assistant as a synonymous term for a paralegal. Tom says he agrees with the ABA that the term paralegal is preferable because no one will confuse paralegals with legal secretaries. Sandy, who has worked as a legal secretary, is offended by Tom’s remarks. What do you think of this change? Why is it important to distinguish between a paralegal and a legal assistant?

Answer: Opinions will vary by student.

There are four national paralegal organizations, each having its own definition of the term paralegal. All four organizations define a paralegal as someone who is qualified by education, training, or work experience to perform, at a minimum, substantive legal work.

NALA restricts paralegals to working under the supervision of an attorney.

Likewise, the ABA requires that paralegals do substantive legal work for which a lawyer is responsible. The NFPA’s definition acknowledges that paralegals may work with attorney supervision, or be authorized by law to perform it. The AAfPE’s definition allows paralegals to perform legal work as authorized by law. Thus, the AAfPE’s definition avoids the issue of attorney supervision. The term legal assistant has become synonymous with legal secretary. So, to distinguish between the work performed by paralegals and legal secretaries, the ABA in February, 2020 removed the term legal assistant from its definition of a paralegal to distinguish between the © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

5

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 1: Today’s Professional Paralegal

two roles. The distinction needed to be made to recognized the higher level, substantive legal work that paralegals perform. [return to top]

Group Project This project asks the group to review information on the websites of NALA (www.nala.org) and NFPA (www.paralegals.org) about the organizations’ certification programs. The members of the group will do the following tasks to complete the project: • Student one will determine and summarize the requirements of the NALA certification exams.

• Student two will determine and summarize the requirements of the NFPA certification exams.

• Student three will compile the results in a chart or graph in PowerPoint or Excel.

• Student four will present the results to the class.

Answer: The requirements to sit for the NALA CP exam are found here and contain several PowerPoint type flow charts and a narrative explanation:https://www.nala.org/certification/certified-paralegal-cp-program.

Information on the APC exam is found here: https://www.nala.org/certification/advanced-paralegal-certification-and-statespecialty-certification The requirements for the NFA CRP and PACE exam were fast-tracked during the COVID-19 pandemic. A link to information on the exams is located here : https://www.paralegals.org/i4a/pages/index.cfm?pageid=3813 [return to top]

Video Questions Watch the video clip for Chapter 1 and answer the questions below.

Erin Brockovich was a paralegal who became famous in the movie Erin Brockovich for her hard-hitting legal investigation of the water pollution by a public utility in Hinkley, California, and the resulting toxic tort lawsuit that her firm won.

1. Which of the paralegal tasks identified in the chapter is Erin Brockovich performing in the video clip?

Answer: Conducting legal investigations and maintaining client contact are the tasks performed.

2. Which of the skills and attributes discussed in the chapter is Erin Brockovich using in the video clip? © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

6

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 1: Today’s Professional Paralegal

Answer: Erin Brockovich uses her strong speaking skills in the community meeting and her analytical skills in gathering and analyzing the water pollution data in Midland, Texas. She also uses her interpersonal skills in working with the clients who initially complained of “yellow water.”

3. Do you think that you would be comfortable holding a large community meeting and speaking in front of large groups as Erin Brockovich does in this video clip? Meeting one on one with clients? Investigating environmental law violations, or other client claims? If not, what other paralegal tasks interest you? Which ones are you comfortable with, and which ones are a “good fit” with your personality?

Answer: Answers will vary. You might encourage students to think about their answers to this question throughout the semester.

Instructor’s Note: Question 3 is similar to Questions for Review 5 in the textbook. The questions should be assigned accordingly. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

7

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 2: Career Opportunities

Table of Contents Answers to the End-of-Chapter Questions .................................................................................. 8 Questions for Review ................................................................................................................................ 8 Ethics Question........................................................................................................................................ 13 Practice Questions and Assignments....................................................................................................... 14 Group Project .......................................................................................................................................... 17 Answers to the MindTap Additional Questions ........................................................................ 18 Questions for Review .............................................................................................................................. 18 Ethics Question........................................................................................................................................ 22 Practice Questions and Assignments....................................................................................................... 23

Answers to the End-of-Chapter Questions Questions for Review 1. List and describe five types of organizations that hire paralegals.

Answer: Five types of organizations that hire paralegals are: 1. Law firms—Law firms vary in size from the small, sole practitioner’s office to the huge “megafirm” with hundreds of attorneys. The majority of paralegals working for law firms are employed by firms having fewer than twenty-five attorneys.

Working for a small, general practice law firm allows a paralegal to gain experience in many different areas of the law and may offer a variety of tasks and greater flexibility. Small firms are often more personal and less formal than large firms. A small firm may be in a convenient location, may not insist on an expensive wardrobe, and may offer free parking. However, on average, small firms pay lower salaries and offer fewer benefits to their employees than larger firms do. Large firms typically are more formal and tend to assign paralegals to more limited, well- defined types of tasks. Large firms offer greater opportunities for promotion, higher salaries, better benefit packages, more support staff, more sophisticated computer technology, and greater access to legal research resources.

2. Corporations and other business organizations—Nearly one-fifth of paralegals work in corporate environments. Most major corporations hire in-house

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

8

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

attorneys to handle corporate legal affairs. Some employ hundreds of attorneys. Paralegals working for corporations work under the supervision of in-house attorneys. Paralegals who are employed by corporations frequently receive higher salaries than those working for law firms. In addition, paralegals who are employed by corporations may work more regular hours. Unlike paralegals in law firms, corporate paralegals typically have not been required to generate a specific number of “billable hours” per year.

3. Government—Paralegals working for the government may work for administrative agencies, legislative offices, law enforcement offices, or courts. These paralegals normally work regular hours, tend to work fewer total hours per year (because they have more vacation time), and do not worry about billable hours. Salaries, however, are typically lower than those offered by law firms and others in the private sector. Benefits are typically comprehensive.

4. Legal aid offices—Paralegals working for legal aid offices provide services to the needy. While this work tends to be very rewarding, paralegals in this field often receive lower salaries. The job responsibilities are broad, however, and the experience gained is valuable.

5. Freelance paralegal operations—Freelance paralegals, also referred to as independent contractors or contract paralegals, generally own their own businesses and perform specified legal work for attorneys on a contract basis.

Attorneys who need temporary legal assistance sometimes contract with a freelance paralegal to work on a particular project. Depending on the nature of the project, the paralegal may work at home or in the attorney’s office. Freelance paralegals work under attorney supervision, which makes them different from legal technicians, also known as independent paralegals.

2. List and briefly describe each of the paralegal specialties discussed in this chapter. Which specialty area or areas interest you the most? Why? Answer: The paralegal specialties discussed in this chapter are: Litigation—Paralegals specializing in litigation assistance work with litigation, or trial, attorneys. Litigation paralegals work for all sizes and types of practices. They usually specialize in a certain type of litigation, such as personal injury, product liability, or specifically working on behalf of either the plaintiff or the defendant.

Corporate law—Paralegals specializing in corporate law may work for a corporation’s legal department or for a firm that specializes in corporate law. Tasks performed may include preparing articles of incorporation (to incorporate a new business) and filing them with the appropriate state agency, maintaining corporate records, or, if working in a corporate legal department, organizing, and scheduling shareholder meetings in accordance with state law.

Contract law—Paralegals who specialize in contract law may work for a corporation’s legal department, for a large law firm, or for a government agency.

They may draft contracts and contract forms and review contracts. They may be © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

9

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

involved in evaluating contracts when the firm is involved in a breach of contract action. They may also conduct research in the law governing contracts.

Real estate law—Paralegals specializing in real estate work for a variety of employers, including small law firms and real estate departments in large law firms, corporations, other firms that buy or sell real property, banks, title companies, and real estate agencies. Some of the tasks they perform include drafting contracts for the sale of real estate, drafting mortgage agreements, draft and record deeds, and schedule closings on the sale of property.

Personal-injury law—Paralegals who work in personal-injury law also work in litigation, but they tend to specialize in negligence cases that have resulted in personal injury to the client, such as auto accidents. Paralegals working in this capacity obtain and review medical and employment records to calculate the client’s lost income and to determine the plaintiff’s damages in a lawsuit. They are also hired by insurance companies to investigate claims. Defendants in personal-injury cases are typically covered by insurance, and a defendant’s insurance company has a duty to defend an insured customer who is sued.

Insurance law—Paralegals working in insurance law may be involved in reviewing contracts and government regulations, assisting in litigation, and performing factual and legal research related to insurance claims. They review insurance regulations and monitor an insurance firm’s compliance with the regulations, review insurance contracts, undertake factual and legal investigations relating to insurance claims, or provide litigation assistance in lawsuits involving the insurance company. Paralegals often help in litigation involving insurance. For example, a paralegal may be asked to provide investigative or litigation assistance for a client who is bringing a lawsuit or defending against personal-injury, malpractice, or other litigation in which insurance is a factor.

Employment and labor law—Paralegals working in employment and labor law may work for law firms, corporations and other business entities, or government agencies. Often paralegals specialize in just one of the many areas of employment law, such as labor (union) relations, employment discrimination, wrongful termination, pension plans, or retirement and disability income. Paralegals working in employment and labor law may also work with various administrative agencies.

Some state and federal agencies allow paralegals to represent clients during agency hearings. Paralegals must be familiar with the relevant federal and state agencies, as well as with their specific roles in resolving disputes. Each agency has its own rules and procedures a paralegal must also know.

Estate planning and probate administration—Probate and estate planning paralegals draft wills and the documents required to establish trusts, probate estates, gather information relating to the debts and assets of the deceased, and locate heirs.

Bankruptcy law—Both large and small firms practice bankruptcy law and hire © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

10

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

paralegals who specialize in this area. Bankruptcy law, imposes strict requirements, which means that paralegals working in this field may have detailed responsibilities.

The process can involve complicated court filings about the debtor’s assets and the claims against him or her. The paralegal might be responsible for interviewing debtors to obtain information about their income, assets, and debts. This often involves verifying the accuracy of information provided by debtors and ensuring that debtors have completed required credit counseling. The paralegal may also review the validity of creditors’ claims and prepare documents that must be submitted to the bankruptcy court.

Intellectual property law—Some law firms (or departments of large law firms) specialize in intellectual property law. Other firms provide a variety of legal services, of which intellectual property law is a part. Corporate legal departments may be responsible for registering copyrights, patents, or trademarks with the federal government. Paralegals may specialize in intellectual property research regarding existing patents and trademarks. They also assist in compiling patent applications in accordance with detailed regulations, draft documents necessary to apply for trademark and copyright protection, and assist in litigating disputes. Because of the expertise required, paralegal intellectual property specialists are paid more than average. This is an especially good practice area for paralegals with a science background. In fact, anyone, including a paralegal, with three years of undergraduate science courses can apply to the U.S. Patent and Trademark Office to become a registered patent agent and thus be qualified to prepare patent applications.

Environmental law—Employers of paralegal specialists in environmental law include administrative agencies (such as the federal Environmental Protection Agency [EPA], state natural resource departments, and local zoning boards), environmental law departments of large law firms, law firms that specialize in environmental law, and corporations. A company may employ a paralegal as an environmental coordinator to help maintain compliance with regulations, oversee company environmental programs, and obtain permits for certain kinds of land use. A familiarity with the terminology of biology, chemistry, and other sciences can be helpful to an environmental paralegal.

Family law—Family law paralegals could work for a small law practice, for a family law department in a large law firm, or with a state or local agency, such as a community services agency that assists persons who need help with family-related legal problems. They research and draft documents that are filed with the court in divorce and adoption proceedings and perform investigations into assets and the grounds for divorce. Paralegals in this area often have extensive contact with clients and need to be skilled at extracting information from sometimes emotionally distraught persons. Those with a background or interest in social work or counseling are particularly well suited to this specialty.

Criminal law—Paralegals who specialize in criminal law may work for public © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

11

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

prosecutors, public defenders, or criminal defense attorneys. A paralegal working for the prosecutor’s office, for example, might draft search or arrest warrants. A paralegal working for the defense attorney (public or private) might obtain police reports, conduct research, and draft documents to be filed with the court, such as a document arguing that the police violated the defendant’s constitutional rights.

Criminal law paralegals perform preparation for litigation tasks such as investigation, summarizing witness testimony, and the like.

Additional Specialty Areas—Opportunities for paralegals exist in many other capacities. As the U.S. population ages, for example, more attorneys are focusing on serving the needs of older clients.

Elder law is the term used to describe this broad specialty. Paralegals who work in this practice area may be asked to assist in a variety of tasks, including those relating to estate planning, age-discrimination claims, financial arrangements for long-term care, Medicare and Medicaid, abuse suffered by elderly persons, and the visitation rights of grandparents.

• Nurses have found profitable and challenging work as paralegals. A paralegal who is also a trained nurse is able to evaluate legal claims involving injuries, such as those involved in personal-injury, medical-malpractice, or productliability lawsuits. A specialty area among nurses—and within the legal profession—is that of the legal nurse consultant (LNC). LNCs usually work independently (offering their services on a contract basis) and are typically well paid for contract services. Some LNCs work for law firms, insurance companies, government offices, and risk management departments of companies as salaried employees The specialty area of most interest to the individual student will vary, as will the rationale behind this interest.

•

3. How can paralegals locate potential employers? How does networking help paralegals find jobs?

Answer: Most jobs can be found online. Additionally, paralegals can locate potential employers by reviewing advertised job openings, contacting attorneys or law firms found in legal directories, contacting job-placement services (legal staffing firms) and schools’ placement offices, interning while in school, and networking by joining professional associations.

Networking involves making personal connections and cultivating relationships with people in a certain field, profession, or area of interest. It can also be done online by using social networking sites such as LinkedIn, through professional associations, or during internships.

Many career opportunities often go unpublished. Many firms post notices within their own organizations first before posting jobs online. This opens doors to their employees before the public. If you have connections in an organization, you may be told that a position is opening before other candidates. More paralegals find © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

12

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

employment through networking than through any other means.

4. What are some of the factors that affect compensation for paralegals?

Answer: The size of the firm or legal department (see Exhibit 2.1) and the specialty area in which the paralegal practices affect compensation. Another incomedetermining factor is the paralegal’s years of experience. The more experienced paralegals enjoy higher rates of compensation. (See Exhibit 2.2). Another major factor is geographical location. (See Exhibit 2.3). Cost of living and taxes are one more factor. Job benefits are another factor. Benefits may include paid holidays, sick leave, group insurance coverage (life, disability, medical, dental), pension plans, and possibly others. Benefits packages vary by firm. Lastly, how a paralegal is compensated whether by salary and bonuses, or hourly wages and over-time or compensatory time off, affects paralegal compensation.

5. What are the three key steps involved in planning a career as a paralegal?

Answer: Career planning involves three key steps. The first step is defining long-term goals, such as what are you looking for in a career? Is salary or job satisfaction more important, and the like. The second involves coming up with short-term goals and adjusting them to meet the realities of the job market by finding a job that meets your salary and benefits needs and utilizes your education and training, and recognizing that your first job may not be the perfect job. The third step involves reevaluating your career after having gained some on-the-job experience.

6. What is a digital shadow? List three ways a paralegal can increase his or her digital shadow.

Answer: A digital shadow is a person’s online reputation. The Chapter lists seven ways to invest in your digital shadow. The top three in the author’s opinion are: 1.

Keep your profile on career sites, such as LinkedIn, up-to-date; 2. Create content that give a positive impression of you, by writing well, posting regularly, and sharing useful information; 3. Invest 15 minutes a week managing your digital shadow, by reviewing your connections and endorsing those you have for their skills. [return to top]

Ethics Question 1. Sheila, a paralegal with twenty years of bankruptcy law experience, sets up a practice to provide bankruptcy forms and advice directly to the public. She advises a client to file for bankruptcy under Chapter 7, but due to the means test he should have filed Chapter 13. The wrong advice causes the client distress and added expense. What type of paralegal is Sheila working as? Is it permissible for a paralegal to provide legal services without attorney supervision? Should it be?

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

13

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

Answer: Sheila is not working under the supervision of an attorney and is providing legal services directly to the public, making her an independent paralegal, or legal technician. These services can include helping members of the public obtain and fill out forms for certain legal transactions, such as bankruptcy filings. However, legal technicians and independent paralegals run the risk of violating state statutes prohibiting the unauthorized practice of law. Since Sheila has done more than just helping her client obtain and fill out forms (advising the client to file for bankruptcy under Chapter 7), she has likely violated the unauthorized practice of law rules in her home state. These rules vary from state to state and would need to be researched to confirm Sheila’s violation of the state’s rules.

Students opinions will vary as to whether it should be permissible for paralegals to provide legal services without attorney supervision. [return to top]

Practice Questions and Assignments 1. Where do most paralegals work? What are some advantages and disadvantages of working for a small law firm? For a large law firm? Which would you prefer to do? Why? Answer: Most paralegals work in law firms that employ fewer than twenty-five attorneys. In addition to the traditional law firm, paralegals work for corporations and other businesses, government agencies (including administrative agencies, legislative offices, and the courts), and legal aid offices. Additionally, some paralegals work as freelance or contract paralegals.

Larger firms often provide career paths for their paralegal employees. Moving from the entry- level position of legal assistant clerk to the position of legal assistant manager, for example, may be one career track within a large law firm. A career track within a state government agency might begin at a legal technician level and advance to a legal specialist level.

Smaller firms, in contrast, usually have no predetermined career path or opportunities for promotion and career advancement. If you are the only paralegal in a small law firm, there will be no specified career path within the firm for you to follow. If you find yourself in this situation, you might consider staying with the firm and creating your own position or career ladder. An advantage to a small firm is that a paralegal gains experience in a number of areas of law and works in a less formal environment, may not require an expensive wardrobe and may provide free parking.

Paralegals in small firms often earn less than those in large firms, however, and often must perform secretarial duties. Paralegals working for large firms tend to specialize in a few areas of law, which can be either an advantage or a disadvantage, depending on personal preference; they enjoy better employee benefits; and they have more support staff.

Personal preference will vary by student. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

14

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

2. Using the material in the chapter, identify which kind of employer the paralegals in the following scenarios work for: a. Isabella works on a team of one attorney, three paralegals, and two secretaries. They defend product liability cases brought against their employer, a medical device manufacturer. b. Ramon works as a case manager for a U.S. district court judge. c. Miranda works for a county legal aid office that provides low-cost legal services to elderly people in a large city. d. Anthony works for all of the attorneys in his firm. He has gained a variety of experience as he does all of the clerical work as well as the paralegal work on the various cases his firm handles. He enjoys the casual environment of the office. e. Felicia’s practice is limited to discovery work in the commercial litigation department. The office environment is formal, but she is paid a high salary, along with good benefits, and has opportunities for promotion. f. Michael provides paralegal services to attorneys in his local community on a contract basis. Most of his work involves support on litigation matters from discovery through trials.

Answer: a. b. c. d. e. f.

in-house counsel at a corporation a federal district court setting legal aid office small law firm large law firm freelance paralegal

3. What is the difference between a freelance paralegal and a legal technician (also called an independent paralegal)? How would working as a freelance paralegal compare to working for a law firm, or other paralegal employer? How would working as a freelance paralegal compare to working as a legal technician?

Answer: A freelance paralegal owns his or her own business and performs work for attorneys on a contract basis. A legal technician (also called an independent paralegal) does not work under the supervision of an attorney and provides legal services directly to the public. Some of the differences between working as a freelance paralegal and a paralegal at a law firm are that freelance paralegals are their own bosses and they can set their own schedules. They enjoy a greater degree of work flexibility and they may work at home or in attorney’s offices. On the other hand, freelancers’ income depends on their ability to promote and maintain business and they do not enjoy benefits such as employer-provided medical insurance.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

15

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

Legal technicians differ from freelancers in that they do not work under attorney supervision and are limited in the types of services they can provide to the general public to avoid providing legal advice in violation of state unauthorized practice of law statutes.

4. Using the material in the chapter, identify each of the following types of questions (closed-ended, open-ended, hypothetical, pressure) that an interviewer might ask during an interview: a. Are you available to travel on weekends? b. Please explain your work history. c. What would you do in the following situation? Attorney Jones is in trial and at 4 P.M., the judge assigns attorney Jones to research the rules of evidence and bring her findings to him in the morning when the trial resumes. At 5 P.M., attorney Jones asks you to stay and help her do the research, indicating that it will “be a late night.” d. Thinking that you look like a polite person who is not assertive enough to work in a law firm, a human resources manager grabs your paperwork from you and says, “I’ll complete that for you. You need to go to the lobby and wait for attorney Smith to interview you.” There is clearly plenty of time for you to complete the paperwork.

Answers: a. Closed-ended question b. Open-ended question c. Hypothetical question d. Pressure question 5. Using the material in the chapter, determine which of the following are illegal questions that an interviewer might ask during a job interview: a. Are you married? b. How many children do you have? c. How do you think that your prior work experience as a social worker will help you in this job as a family law paralegal? d. You’re quite a bit more mature than other applicants. Will you be thinking of retiring in the next ten years?

Answers: a. Illegal b. Illegal c. Proper d. Illegal

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

16

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

6. Draft a résumé for yourself using the samples in this chapter for guidance. Think of your strong suits that should be highlighted. Also, write a cover letter that introduces you in a favorable manner.

Answer: Answers will vary by student. A sample resume’ for those with paralegal experience is found in Exhibit 2.4 and a sample for students without paralegal experience is provided in Exhibit 2.6. [return to top]

Group Project 1. The group selects a legal specialty discussed in this chapter. Students one and two find an article about the area from a paralegal publication or website. They each write a one-page summary of the article, including the pros and cons of working in this specialty. Student three interviews a paralegal who works in this practice area, and likewise discusses the pros and cons of the specialty during the interview. Student four summarizes the results of both the research and the interview and presents the results to the class.

Answer: Answers will vary. Instructors may want to select several legal specialties for the groups to research and allow students to sign up for the group/specialty in which they are interested in working (on a first-come, first-served basis). [return to top] 2. Do an Internet search to see if you can determine which social media site may be most relevant for your career.

Provide links to three websites and write two to three paragraphs discussing which results are the best and why. Include your opinion of which site you would choose to promote your career as a paralegal.

Using the material in the chapter on using social media, write two to three more paragraphs discussing what you think are the top three ways to manage your digital shadow.

Answers: These answers will vary by student, but possible choices could be Facebook, Twitter, Google+, LinkedIn, and other social media. The relative strengths of how to manage the digital shadow will vary and the websites chosen can differ by student. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

17

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

Answers to the MindTap Additional Questions Questions for Review Describe the work environments (hours, salary, variety of tasks, advantages, disadvantages, etc.) for each of the non-law-firm organizations where paralegals work: Corporations Government Legal aid offices Freelance paralegals Legal technicians Answer: The following are descriptions of the work environments of the non-lawfirm organizations where paralegals work.

Corporations More regular hours, no billable hours required, higher salaries than law firms, and a variety of work characterize the corporate work environment.

Government Paralegals in government may work for government agencies, legislative offices, prosecutors’ or public defenders’ offices, or the courts. Regular working hours with more vacation time, highly specialized practice areas, no billable hours, and extensive employee benefits describe the government agency environment.

Legal aid offices Paralegals who work for legal aid offices often find it rewarding work because they help needy individuals who could not otherwise obtain legal representation. Paralegals typically receive a wider array of job responsibilities, and paralegals working for certain agencies may be allowed to represent clients in agency hearings and judicial proceedings. One disadvantage is that salaries tend to be lower, in part because of the nature of the work.

Freelance paralegals Freelance paralegals own their own businesses and work on a project basis for law firms or individual attorneys. This allows them a greater degree of flexibility in working hours and the possibility of working either at home or in an attorney’s office. It is an ideal working situation for paralegals with a great amount of responsibility and motivation. The disadvantage of freelancing is that a freelance paralegal’s income depends on his or her ability to promote and maintain the business, and months with no clients produce no paychecks. Also, job benefits such as medical insurance, vacation, and sick time are not provided.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

18

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

Legal technicians Legal technicians provide their services directly to the public—not to attorneys as do freelance paralegals. They run the risk of violating state statutes prohibiting the unauthorized practice of law. Otherwise, they own their own businesses and their work environments and advantages and disadvantages are similar to those of freelance paralegals.

How are paralegals compensated? On average, in what specialty areas do paralegals receive the highest salaries? What is the average salary for your region?

Answer: Paralegals are compensated primarily through annual salaries. The average salary for a paralegal will vary by region. The specialty areas in which paralegals receive the highest salaries include intellectual property, bankruptcy, contract law, corporate law, and litigation. The average salary will vary by region.

Exhibit 2.4 in Chapter 2, paralegal salaries by region, gives the following salaries: Region West South Northeast Midwest

Average $66,013 Salary $57,643 $61,363 $51,198

What factors affect paralegal compensation?

Answer: Factors that affect paralegal compensation include size of the law firm or legal department, practice area, years of experience, geographical location, cost of living, and job benefits.

What are the advantages of being paid a salary? List some advantages of being paid an hourly wage. What are the disadvantages of each type of paralegal compensation?

Answer: The advantages of being paid a salary include having a steady, set income so that the paralegal always knows what he or she will earn. Also, many paralegals who receive a salary also receive an annual bonus, which may compensate paralegals for overtime, or may be a recognition of their quality of work or devotion to the firm. The main disadvantage of being paid a salary is that, typically, overtime compensation is not paid on a regular basis to compensate for overtime work.

However, overtime is often compensated by either a year-end bonus or compensatory time off from work.

Employees who are paid an hourly wage have an income that varies. This can be either an advantage or a disadvantage, depending on the perspective of the employee. Employees who work overtime get paid an hourly overtime wage, which can increase their income. However, if there is not enough work for the paralegal, he or she can work fewer hours than anticipated and have less income.

List and describe the materials that are needed for the job application process.

Answer: The following are materials needed for the job application process:

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

19

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

Résumé—A document that summarizes the paralegal’s employment and educational background. Applicants should not include personal details.

Cover letter—The letter that accompanies the résumé and is used when contacting an employer. It represents the applicant, so it should be drafted carefully.

Professional references—A list of people the firm can contact to obtain information about the applicant’s abilities.

Professional portfolio—A selection of documents prepared by the student that represents his or her writing ability. The portfolio should also include another copy of your résumé, a list of references, letters of recommendation, transcripts, and other relevant professional information.

When preparing your résumé, what should do if you have no work experience? Whom should you list as references, and what is required in order to use someone as a reference?

Answer: If you do not have work experience, you should add more information on your educational background and experience. You can list specific courses that you took, particular skills—such as computer skills—that you acquired during your paralegal training, and student affiliations.

Instructors, internship supervisors, and former employers all make good references, as they can attest to your paralegal skills and abilities. Always seek the individual’s permission to use him or her before listing the individual as a reference.

This avoids a surprise call to the reference and allows you to further network and update the reference about your skills and experience, which the individual may convey to the employer when the employer checks your reference.

What should you do before a job interview? What steps should you take after a job interview?

Answer: Before a job interview, you should do your homework on the employer to learn as much as possible about the employer. Additionally, you should anticipate questions and review and practice possible answers. For example, if you did not graduate from high school with your class but later received a general equivalency diploma, you might be asked why you dropped out of school. If you have a prepared answer, it will make things go more smoothly. Applicants should also be prepared to be interviewed by a legal team. Additionally, you should plan to arrive early by knowing the amount of time needed to get to the interview, obtaining directions to the interview location, and ascertaining parking arrangements. Last, you should plan your appearance so that you wear conservative clothing, hairstyle, and jewelry or other accents.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

20

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

The steps that should be taken after an interview include sending a follow-up letter to the interviewer within a week of the interview to thank him or her for meeting with and interviewing you. The follow-up letter should also include a discussion of your availability and interest in the job. A paralegal who is looking for a position should also set up a filing system for job-search activities, which should include a copy of all follow-up letters.

Describe the types of questions that may be asked during a job interview.

Answer: During the interview, the following types of questions may be asked: Closed-ended questions—These questions require a “yes” or “no” answer.

Open-ended questions—These questions require a discussion, in some detail, of a specific topic or experience.

Hypothetical questions—The hypothetical question is a way of determining how the interviewee might handle a situation that might arise at work.

Pressure questions—Pressure questions are intended to see how the interviewee deals with uncomfortable situations or unpleasant discussions.

When is salary discussed during the job application process? What factors other than salary should you consider when determining what a job is worth?

Answer: Sometimes a firm states a salary or a salary range in its advertisement for a paralegal. During a first interview, a prospective employer may offer that information as well. In other situations, an applicant does not know what the salary for a certain position will be until he or she is offered the job.

Other factors to consider when determining what the job is worth include the following: Benefits Career opportunities Compensation—salary or hourly, bonus or overtime Competition Job description and duties, training, qualification, stress Job flexibility Location Permanent or temporary position Travel required What are some ways in which you can advance in your paralegal career?

Answer: Some of the ways in which a paralegal can advance in his or her career include the following: Being promoted or transferring to another department within the firm Moving to another firm and perhaps another legal specialty Creating opportunities within the current firm, if there is not a predetermined career ladder Returning to school to obtain further education

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

21

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

Being proactive and managing your digital shadow to enhance your future career prospects and help ensure that those you deal with both online and offline have a positive impression of your professionalism, your abilities, and your work ethic Publishing articles in a paralegal association’s newsletter or other publication to improve your professional reputation [return to top]

Ethics Question Leah Fox, a legal assistant, has been asked by the attorney for whom she works to contact several potential witnesses to see what they know about an event. The first witness Leah calls says: “I don’t know if I should get involved. I don’t want to get in trouble. You see, I was supposed to be at work, but I called in sick. If I get involved and my employer finds out where I really was, I might get fired. You’re a lawyer, what do you think?” How should Leah respond?

Answer: Leah must respond by making it clear to the witness that she is a lawyer’s assistant and not a lawyer. Otherwise, Leah may have problems with the unauthorized practice of law. Leah should have introduced herself as a paralegal in order to prevent this problem from occurring in the first place. Leah should not give the witness any advice about whether or not the witness’s employer could legally fire the witness.

Laura Bronson has just started her first paralegal job with the firm of Thompson & Smith, a general law practice. Laura is asked to prepare articles of incorporation for one of the firm’s corporate clients. Laura did not take corporate law while studying to be a paralegal and has never prepared articles of incorporation before. Should Laura accept the assignment? If she does accept it, what obligations does she have?

Answer: Laura has an obligation to honestly disclose her lack of experience and not tell any “white lies” about it. If she accepts the assignment, Laura has an obligation to competently prepare the articles of incorporation. This means she will have to do significant research into the state law governing articles of incorporation, as well as the forms required by the state. She should also try to locate an experienced paralegal to mentor her.

Tom Brown is a paralegal in a large firm with a busy litigation practice. As he walks in the door at 8:30 A.M., he passes Mike Walker, his supervising attorney, who is on his way to court to begin a trial. As they pass, Mike says to Tom, “I need a motion filed in the Jones case in seven days. I’ve left the file on your desk.” Mike walks out the door and down the street to court. Tom becomes very anxious because he knows very little about the case and the law involved. He is concerned about his ability to competently prepare the motion. What should he do? © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

22

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

Answer: Tom should read the file and see if that makes him any more comfortable with the case. If not, he can do several things. First, he can do some legal research to learn more about the law. If he is still uncomfortable, he can find out who else in the firm has worked on the file and discuss the case with the other paralegals and attorneys involved in the case to learn more about both the law and the facts. He might also be able to ask one of them to mentor him on this project. His last resort should be to leave questions for Mike to answer when he comes back to the office during breaks in his trial. Tom needs to make sure that he is adequately supervised.

Paralegal Samantha is aware that a recently hired associate attorney, Kathy, lied about her prior legal experience. Samantha is working with Kathy to set up a large estate for a client, and it is apparent that she does not know the law governing the estate and that what Kathy is doing will ultimately harm the client. Does Samantha have an obligation to report Kathy’s misrepresentation to her employer?

Answer: Because Kathy is committing malpractice, Samantha has an obligation to go to the supervising attorney and inform her of what she knows about Kathy to protect the client and the firm from her malpractice. [return to top]

Practice Questions and Assignments Using the material in the chapter, determine which of the following are illegal questions that an interviewer might ask during an interview: a. Are you married? b. How many children do you have? c. How do you think that your prior work experience as a social worker will help you in this job as a family law paralegal? d. You’re quite a bit more mature than other applicants. Will you be thinking of retiring in the next ten years?

Answer: Questions a, b, and d are illegal.

Using the material in the chapter, which of the following are questions that you might want to ask an interviewer during a first interview? a. How do paralegals function within the organization? b. Does the job involve travel? How will travel expenses be covered? c. What computer technology is used by the firm? d. Can I leave at 4:30 P.M. every day?

Answer: Questions a, b, and c are all questions that an interviewee might want to ask during an initial interview. Question d is not recommended at an initial interview because it will make the job candidate sound like he or she is not interested in working as a professional and dedicated team member.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

23

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 2: Career Opportunities

Using the material in the chapter, identify each of the following types of questions (closed ended, open ended, hypothetical, pressure) that an interviewer might ask during an interview: a. Are you available to travel on weekends? b. Please explain your work history. c. What would you do in the following situation? Attorney Jones is in trial and at 4 P.M., the judge assigns attorney Jones to research the rules of evidence and bring her findings to him in the morning when the trial resumes. At 5 P.M., attorney Jones asks you to stay and help her do the research, indicating that it will “be a late night.” d. Thinking that you look like a polite person who is not assertive enough to work in a law firm, a human resources manager grabs your paperwork from you and says, “I’ll complete that for you. You need to go to the lobby and wait for attorney Smith to interview you.” There is clearly plenty of time for you to complete the paperwork.

Answer: a. Close-ended question b. Open-ended question c. Hypothetical d. Pressure Using the sample résumés in Exhibit 2.5 and Exhibit 2.6 as models, prepare a résumé.

Try creating a highly professional résumé using word-processing software or other software. Also create a cover letter to accompany your résumé; the letter should highlight your strengths to the potential employer of your ideal paralegal job.

Answer: Students’ résumés should resemble those in Exhibit 2.5 and Exhibit 2.6.

Cover letters should resemble the sample letter. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

24

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 3: The Inner Workings of the Law Office

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 3: The Inner Workings of the Law Office

Table of Contents Answers to the End-of-Chapter Questions ................................................................................ 25 Questions for Review .............................................................................................................................. 25 Ethics Question........................................................................................................................................ 28 Practice Questions and Assignments....................................................................................................... 29 Group Project .......................................................................................................................................... 32 Video Questions ...................................................................................................................................... 33

Answers to the End-of-Chapter Questions Questions for Review 1. List and define the basic organizational structures of law firms discussed in the chapter. What is personal liability?

Answer: The three basic organizational structures of law firms are sole practitioners (sole proprietorships), partnerships including limited liability entities such as LLP’s and PLLC’s), and professional corporations. Personal liability means that the owner’s personal assets may have to be sacrificed to pay business obligations if the business fails.

2. What is the difference between an associate and a partner? Are there attorneys in other roles in law firms? If so, what are their roles? Who supervises the work performed by paralegals?

Answer: The difference between an associate and a partner is that an associate is a lawyer-employee of the law firm, while a partner is an owner. Associate attorneys do not have an ownership interest in the firm. They are usually less experienced attorneys and may be invited to become partners after working for the firm for several years. A staff attorney is hired by a firm as an employee. These attorneys have no ownership rights in the firm and will not be invited to become partners in the firm. Contract attorneys provide services on a project basis. The work of paralegals in a law firm is supervised by attorneys, office managers, and paralegal managers.

3. What kinds of files do law firms maintain? What general procedures are typically followed in regard to client files?

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

25

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 3: The Inner Workings of the Law Office

Answer: Law firms typically maintain client files, work product files, and forms files.

The general procedures typically followed in regard to client files include opening a new client file, adding subfiles, using and storing files, and closing and destroying old files.

Proper file maintenance is crucial to a smoothly functioning firm. An efficient filing system helps to ensure that important documents will not be misplaced and will be available when needed. Filing procedures must also maximize client confidentiality and the safekeeping of documents.

4. List and define the different ways law firms bill their clients. What ethical obligations do attorneys have with respect to legal fees?

Answer: Law firms bill their clients on a fixed fee, hourly or contingency fee basis. A fixed fee is a set fee for specific legal services, such as $500 for a basic will. Hourly billing is a set hourly rate for work performed for a client. A contingency fee is a percentage of the client’s winnings in a civil lawsuit, which is contingent on the client recovering something in the case. If there is no recovery, then the attorney does not receive a fee, but will be reimbursed for his costs.

Normally, fee arrangements are discussed and agreed on by the attorney and client at the outset of the attorney-client relationship. Most law firms require each client to agree, in a signed document called a retainer agreement, to the fee arrangements that have been made. Some states also require, by law, that fee arrangements be stated in writing.

An attorney’s ethical obligations with respect to charging reasonable legal fees comes from the ABA’s Rule 1.5 in the Model Rules of Professional Conduct. Factors included in determining the reasonableness of a lawyer’s fee include the time and labor required to perform the legal work, the fee customarily charged in the locality for similar legal services, and the experience and ability of the lawyer performing the services. Thus, lawyers must keep accurate records of their time to avoid charges of unethical billing practices, including double billing. Lawyers are required by state ethical rules to maintain client trust accounts to avoid commingling clients’ funds with law firm funds.

5. How do lawyers and paralegals keep track of their time? What is the difference between billable and nonbillable hours? What is a client trust account?

Answer: Lawyers and paralegals traditionally used time slips to keep track of their time. Most firms now use computer systems for timekeeping, by entering the amount of time (in hours or increments of hours) spent on a particular client’s work, the name of the client for whom the work was undertaken, the date, and other identifying information. The time keeping software provides the basis for billing the clients for services rendered.

Billable hours are the hours or fractions of hours that attorneys and paralegals spend in client-related work that requires legal expertise and that can be billed directly to clients. Nonbillable hours are hours spent in other law-office work, such as © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

26

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 3: The Inner Workings of the Law Office

administrative work, staff meetings, performance reviews, and the like.

Nonbillable hours cannot be billed directly to the client and constitute part of a law firm’s overhead expenses.

A client trust account is a special bank account that is established to hold any funds, including retainers, received on behalf of a client. The ethical rules governing attorneys require that funds received from or on behalf of clients be held in an account separate from that of the attorney or law firm.

6. List some factors that may be considered in a paralegal’s performance evaluation.

Answer: Paralegals should learn at the start of a new job, exactly what their duties will be and what performance is expected. This way, they will be able to prepare for their first evaluation from the moment they start a new job. Some of the factors that may be included in a paralegal’s performance evaluation include: 1. RESPONSIBILITY-Making sure that all tasks are performed on time and following up on all pending matters.

2. EFFICIENCY- Obtaining good results in the least amount of time possible.

3. PRODUCTIVITY- producing a sufficient quantity of work in a given time period.

4. COMPETENCE -Knowledge level and skills.

5. INITIATIVE-Taking responsibility and creativity for tasks and making appropriate recommendations.

6. COOPERATION-Getting along well with others on the legal team.

7. PERSONAL FACTORS-Appearance, grooming habits, friendliness, and poise.

8. DEPENDABILITY-Arriving at work consistently on time and being available when needed.

7. What are some of the things a paralegal should consider when investigating a law firm’s culture?

Answer: Some of the things you should think about when investigating a law firm’s culture include: •

• •

•

Turnover—Because it is costly to train new employees, no firm wants to constantly replace staff. If a firm has high turnover, that may tell you that many employees are unsatisfied with the environment. Ask how long the average employee has been at the firm to get a sense of turnover.

Competitive compensation—Are employees paid based on seniority, or are there rewards for exceptional performance?

Creative benefits—Does the firm offer more than the usual package of medical and retirement benefits? Is telecommuting or flextime possible? Are there provisions for emergency backup child care? • Does the firm provide candid assessments of performance?

How does the firm mentor new employees? Will you be assigned a mentor, or

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

27

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 3: The Inner Workings of the Law Office

• • •

will you have to figure out on the job who can guide you?

What is the firm’s philosophy of management and its goals?

What is the firm’s vision and brand?

What does it take to be successful at the firm?

[return to top]

Ethics Question 1. Sam Martin, an attorney, receives a settlement check for a client’s case. It is made out jointly to Sam and his client. Sam endorses the check and instructs his paralegal to deposit it into his law firm’s bank account, instead of the client’s trust account, because he wants to take out his fee before he gives the client his portion of the money. Can Sam do this? Why or why not? What should Sam’s paralegal do?

Answer: Sam may not do this. Attorneys are required to place a client’s funds in a client trust account. This prevents the money from being spent on law firm expenses, such as monthly rent, utilities, or equipment, instead of being paid to the client. What Sam should have done was deposit the check into a client trust account and then, assuming that he had earned his fee, make a withdrawal in the amount of this fee.

Sam’s paralegal should bring this ethical violation to his attention. The paralegal might approach Sam by saying, “I know that this is your responsibility, but were you aware depositing this client’s check into the firm’s bank account is an ethical violation?” The paralegal might also want to have a copy of the state’s ethical rule prohibiting commingling of clients’ funds handy, in the event that the attorney is unaware of the rule.

2. James Johnson is a sole practitioner. His office is about an hour’s drive from the federal district court in which he files many of his lawsuits. He used to talk on his cell phone to clients as he traveled the two hours to and from the courthouse. He would then bill the client on whose behalf he was going to the courthouse for two hours and the clients with whom he talked on the phone for increments of the same two hours. When the American Bar Association issued its rule prohibiting double billing, he was concerned that the rule would drive him out of business due to the drop in income. Is what Johnson is doing ethical? Why or why not?

Answer: This is a debatable point. It should be noted, however, that lawyers in large firms typically have large corporate clients who pay large sums of money for the firm’s representation, and they also have numerous attorneys. Therefore, there is usually someone to complete work on behalf of a client in a timely fashion. The sole practitioner, in contrast, represents clients with less ability to pay and is usually the only attorney in the office. Therefore, the sole practitioner must complete all of the legal work himself in a timely manner.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

28

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 3: The Inner Workings of the Law Office

[return to top]

Practice Questions and Assignments 1. Using the material presented in the chapter on the organizational structure of law firms, identify the kind of law practices involved in the following scenarios: a. Rosa Suefentes practices immigration law. She owns her legal practice, the building, and the office furniture. She leases some office equipment. Rosa employs one secretary and one paralegal. b. Mosabi Hamdei owns a general practice law firm with Hassam El-Khouri.

They own equal interests in the firm, participate equally in the firm’s management, and share jointly in its profits and losses. Hamdei & El-Khouri has three associates, six secretaries, and three paralegals who work for the firm. c. Ajay Singh, Arun Patel, and Chandra Jindal need to limit their personal liability resulting from a potential legal malpractice claim against their partnership, not all of which will be covered by insurance. They file paperwork with the state to convert to an entity that, in most states, protects innocent partners from debts and obligations arising from negligence, which is the basis for a legal malpractice claim.

Answer: a. Sole proprietorship b. Partnership c. Professional corporation 2. Using the material in the chapter, identify the following law office personnel: a. LaToya works as a paralegal in a large law firm. After twelve years with the firm, she was promoted and now oversees paralegal staffing, assignments, and professional development. b. Ani was hired by the partners of a large law firm to manage the day-to-day operations of the firm. c. Alicia is an attorney who works as an employee of Marsh & Martin, a law firm with 250 attorneys. She is not on the partnership track. d. Jamal is a file clerk for Wright & Goodman. e. Michael is a lawyer. He owns O’Dowd & O’Dowd LLP with his sister, Jane. f. Kathy is an attorney working on a document-review project in a mass tort litigation case for the BigLaw law firm. Her job will end when the project is completed.

Answer: a. Paralegal manager b. Legal administrator c. Staff attorney d. Support personnel © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

29

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 3: The Inner Workings of the Law Office

e. Partner f. Contract attorney 3. Using the material in the chapter on fee arrangements, identify the type of billing that is being used in each of the following examples: a. The client is billed $200 per hour for a partner’s time, $150 per hour for an associate attorney’s time, and $125 per hour for a paralegal’s time. b. The attorney’s fee is one-third of the amount that the attorney recovers for the client, either through a pretrial settlement or through a trial. c. The attorney charges $250 to change the name of a client’s business firm.

Answer: a. Hourly billing b. Contingency fee c. Fixed fee 4. A law firm hired to represent a client in a paternity action withdrew from representation of the client while the case was pending, citing irreconcilable differences. In the retainer agreement, the client had agreed to pay hourly fees of $475 for the senior attorney, $425 for the junior attorney, $275 for any other attorney in the firm, and $150 for paralegal and law-clerk time. At the time the attorneys withdrew from representation, the client’s total bill was $39,561, which she refused to pay. The law firm sued to recover its fee. a. What argument might the client make to get the fees reduced? Would it make a difference if the typical fee for a paternity case was usually less than $10,000? b. What argument would the law firm make to support its lawsuit for collecting its fee?

Answer: a. Most law firms charge clients hourly rates for legal services. Hourly rates vary widely from firm to firm. State ethical codes require legal fees to be reasonable and the client could assert that $39,000 was unreasonable given that most paternity cases only cost $10,000. b. In response, the law firm would articulate the different elements that go into calculating the reasonableness, such as the time and labor required to perform legal work, as well as the legal experience and ability of the lawyer performing the services.

5. A lawyer representing indigent defendants as a court-appointed attorney billed the county courts for more than twenty-four hours a day on three different days and more than twenty hours a day five other times. On other occasions, she billed between fourteen and nineteen hours a day. The attorney did not keep detailed records of the hours that she worked, so she often guessed at how much time she had spent on a case. Using the material in the chapter on ethics and client billing practices, explain what this attorney did wrong.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

30

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 3: The Inner Workings of the Law Office

Answer: Because attorneys have a duty to charge their clients reasonable fees, legal professionals must be careful in their billing practices. Otherwise, they run the risk of double billing (billing more than one client for the same time) which is generally considered to be unethical. They must also not pad their bills by including more billable hours and actually worked on behalf of those clients. Because no one can work more than 24 hours a day, and it is unlikely that she worked 20 hours a day for five days, she either padded the bill, or double-billed for her time.

6. José Hernandez hires Maria Alvarez, an attorney with the law firm of Alvarez, Banderos, & Sedillo, located at 1000 Canyon Road, Phoenix, Arizona, to represent him in a divorce. He agrees to pay attorney Alvarez at a rate of $350 per hour and to pay a paralegal $150 per hour. He also agrees to pay all costs and expenses, such as filing fees, expert-witness fees, court-reporter fees, and other fees incurred in the course of her representation. Using Exhibit 3.4, A Sample Retainer Agreement, draft a retainer agreement between José Hernandez and Maria Alvarez.

Answer: The following is a sample retainer agreement between José Hernandez and Maria Alvarez.

RETAINER AGREEMENT I, José Hernandez, agree to employ Maria Alvarez and her law firm, Alvarez, Banderos, & Sedillo, 1000 Canyon Road, Phoenix, Arizona, as my attorneys to represent me in my divorce action.

I agree to pay my lawyers a fee of $350.00 per hour for attorney Alvarez’s time and $150.00 per hour for paralegal work. I agree that Maria Alvarez and her law firm, Alvarez, Banderos, & Sedillo, have an express attorney’s lien on any property, real or personal, to ensure that their fee is paid.

I agree to pay all necessary costs and expenses, such as filing fees, expertwitness fees, court- reporter fees, travel expenses, long-distance telephone and facsimile costs, and photocopying charges. I understand that these costs and expenses will be billed to me by my attorney on a monthly basis and that I am responsible for paying these costs and expenses, even if no recovery is received.

I agree that this retainer does not cover matters other than those described above. It does not cover an appeal from any judgment entered, any efforts necessary to collect money due because of a judgment entered by a court, or any efforts necessary to obtain other benefits, such as insurance. I agree to pay a carrying charge amounting to the greater of $2.00 or 2 percent per month on the average daily balance of bills on my account that are 30 days overdue. If my account is outstanding for more than 60 days, all work by the attorney shall cease until the account is paid in full or a monthly payment plan is agreed upon.

This contract is governed by the law of the state of Arizona.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

31

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 3: The Inner Workings of the Law Office

I AGREE TO THE TERMS AND CONDITIONS STATED ABOVE: Date: José Hernandez I agree to represent José Hernandez in the matter described above. I further agree to notify José Hernandez of all developments in this matter promptly, and I will make no settlement of this matter without his consent.

I AGREE TO THE TERMS AND CONDITIONS STATED ABOVE: Date: Maria Alvarez Alvarez, Banderos, & Sedillo 1000 Canyon Road Phoenix, Arizona [return to top]

Group Project In this project, the group will research the use of social media by law firms and present its findings to the class. Student one will research for what purpose law firms use social media and what the pros and cons of using social media are. Student two will research statistics on how many law firms use social media. Student three will research statistics on which social media sites law firms use and what the trends are among law firms for using various sites. Student four will summarize and compile the results of the research and will present the group’s findings to the class.

Answer: Law firms use social media to enhance team collaboration among employees.

In the legal environment, social media are being used in many ways: • Private client spaces created to keep clients up to date on case developments.

• Internal wikis where knowledge can be shared.

• Collaborative spaces, secure behind firewalls, where a legal team can share documents.

• Internal community calendars to keep the legal team posted on where team members are and what they are doing, as well as progress on specific tasks.

• Firm-specific Twitter-like services for secure communication among the legal team.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

32

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 3: The Inner Workings of the Law Office

•

Firm Twitter feeds and other external social media that build the firm’s digital shadow and help attract clients.

Although social media use can be beneficial for law firms, firms need to address the issue of client confidentiality as they determine how they will employ social media.

Note to Instructor: The use of social media by law firms will likely change as new social media are developed, but these answers are provided as a starting point for addressing this question. [return to top]

Video Questions The law firm in the video represented banks and other clients who held mortgages. When the foreclosure crisis hit in 2009, with 2.8 million mortgages foreclosed nationally, the firm handled more than 70,000 foreclosures, or about 20 percent of foreclosures in the State of Florida, bringing in $260 million in revenue. David Stern was one of the attorneys investigated for “Robo-signing” the required affidavits in order for the courts to proceed to foreclose on the property.

The lender proves the facts in a judicial foreclosure by submitting documents and a written statement signed under oath in the form of an affidavit, by a person who is usually a bank employee, who has reviewed the documents, and who is supposed to have some personal basis for believing the facts to be true. The idea is to prevent foreclosures on homes where the foreclosing bank cannot prove that it actually owns the mortgage, or where the homeowner is not actually in default to the degree asserted in the foreclosure papers. Some big banks and law firms like Stern’s were signing thousands of these affidavits a month without the personal knowledge required that the homeowner was in default. They would spend thirty seconds on each one of the thousands of affidavits signed and had no idea whether the facts in them were true, hence the term “Robosigning.”

A former paralegal to the law firm testified in a deposition that employees were told to forge signatures, change dates, and use the wrong social security numbers to finish paperwork. On the video, she is quoted as saying, “mortgages would get placed in different files; mortgages would get thrown out.”

1. Why were the mortgage files handled this way?

Answer: To foreclose on thousands of properties within the deadlines for mortgage foreclosures.

2. What was the likely impact of the law firm’s treatment of the mortgages?

Answer: When the mortgages were placed in the wrong files or thrown out, there was no way to prove that there was a mortgage on a piece of property, who owned the © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

33

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 3: The Inner Workings of the Law Office

mortgage, or who, if anyone, was in default. People may have lost their homes without being in default if judges were not looking closely at the paperwork.

3. Chapter 3 discusses the need to safeguard client files. In a perfect world, how should the mortgage default files, including the mortgages and affidavits, been handled?

Answer: A file should have been set up for each mortgage that was in default and all of the necessary paperwork to prove a default should have accompanied it. That way the signers could review all of the documentation and truthfully sign an affidavit, or inform the bank or mortgage company that a foreclosure was not warranted. Nothing should have been thrown out.

4. Google “Robo-signing” and indicate how the Robo-Signing scandal ended.

Answer: There was a moratorium on foreclosures and an investigation by the federal government’s banking regulators, after which a $50 billion settlement was reached between the federal government and the big banks to compensate those whose mortgages were wrongly foreclosed. http://www.cnbc.com/id/101500856# 5. What would you do if you found yourself working for a law firm like the one in the video? Would you break the law to keep your job, as was alleged was the case in video clip?

Answer: All of the students should say that they would not break the law to keep their jobs and, further, that they would quit their jobs and expose their bosses by testifying against them as the paralegal in the video clip did. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

34

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 4: Ethics and Professional Responsibility

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 4: Ethics and Professional Responsibility

Table of Contents Answers to the End-of-Chapter Questions ................................................................................ 35 Questions for Review .............................................................................................................................. 35 Ethics Question........................................................................................................................................ 38 Practice Questions and Assignments....................................................................................................... 39 Group Project .......................................................................................................................................... 42 Video Questions ...................................................................................................................................... 42

Answers to the End-of-Chapter Questions Questions for Review 1. Why is the legal profession regulated? Who are the regulators? How is regulation accomplished?

Answer: The legal profession is regulated to ensure that anyone practicing law is competent to do so and to protect the public interest against unethical attorney behavior that may affect a client’s welfare. The regulators are state bar associations, state supreme courts, state legislatures, and, in some cases, the U.S. Supreme Court. Regulation is accomplished through education and licensing requirements (which ensure that anyone practicing law is competent to do so) and by ethical rules governing the conduct of attorneys.

2. How is the paralegal profession regulated by attorney ethical codes? How is it regulated by paralegal codes of ethics?

Answer: The paralegal profession is indirectly regulated by attorney ethical codes.

Only attorneys are subject to disciplinary proceedings for violating these codes.

Paralegals are not sanctioned by the state bar association or other regulators for violating ethical codes. However, the attorney ethical codes have a regulatory effect on paralegals. For example, an attorney will not want to hire or maintain as an employee a paralegal who violates the state ethical codes (which could result in disciplinary actions against the attorney).

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

35

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 4: Ethics and Professional Responsibility

The paralegal profession is regulated by the paralegal codes of ethics, which explain and enforce, especially for paralegals who are members of a paralegal organization, the various duties and obligations of a paralegal as well as the restrictions all paralegals must be aware of in order to do their job well. Paralegal ethical codes provide ethical guidelines for paralegals to follow. Compliance with a paralegal ethical code is not legally required for paralegals. If a paralegal does not comply with a paralegal association’s code of ethics, the association cannot start government-sanctioned disciplinary proceedings against the paralegal. However, a paralegal may have his or her membership in the organization revoked. For instance, in the 1997 NFPA revised code, the NFPA took the bold step of appending a list of enforcement guidelines setting forth recommendations on how to discipline paralegals who violate ethical standards promulgated by the code.

3. What does the duty of competence involve? How can violations of the duty of competence be avoided?

Answer: Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation. Often, breaches of the duty of competence result from missed deadlines. Other breaches of competence can occur when, for example, erroneous information is included in a legal document that is filed with the court. Ways to avoid violations of the duty of competence include using organizational techniques, such as consistently using a calendar or tickler system; asking the supervising attorney for specific instructions when uncertain of what to include in a document; obtaining adequate attorney supervision; and being especially careful in drafting and proofreading documents.

4. What is the duty of confidentiality? What is the attorney-client privilege?

What is the relationship between confidentiality and the attorney-client privilege? What are some potential consequences of violating the confidentiality rule?

Answer: The duty of confidentiality is an ethical rule that comes from the Model Rules. It requires that all information relating to the representation of a client be kept confidential, unless the client consents after disclosure, or if one of the exceptions to the rule is met. The attorney-client privilege is a rule of evidence requiring that confidential communications between a client and his or her attorney (relating to a professional matter) not be disclosed even in the course of legal proceedings. The attorney-client privilege can be vitally important during litigation. As discussed in Chapter 10, prior to a trial each attorney is permitted to obtain information relating to the case from the opposing attorney and other persons, such as witnesses. This means that attorneys must exchange certain information about their clients. An attorney need not provide privileged information, however—unless

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

36

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 4: Ethics and Professional Responsibility

the client consents to the disclosure or a court orders it. Similarly, if an attorney is called to the witness stand during a trial, the attorney may not disclose privileged information unless the court orders it. The attorney-client privilege lasts indefinitely unless waived.

Some of the potential consequences of violating the confidentiality rule include the following: (1) disciplinary action may be taken against the attorney by the state bar association; (2) the client may bring a malpractice lawsuit against the attorney and possibly the legal assistant, or against the firm; and (3) the paralegal may place his or her job—and possibly his or her career—in jeopardy by violating the confidentiality rule.

5. How is the practice of law defined? What is the unauthorized practice of law (UPL)? How might paralegals violate state statutes prohibiting UPL? What types of tasks can legally be performed by paralegals?

Answer: Neither state statutes nor the ABA Model Rules clearly define what constitutes the practice of law. This makes it difficult to predict with certainty what constitutes the unauthorized practice of law. Generally, state statutes regulate the practice of law, and court decisions define what constitutes both the authorized and unauthorized practice of law. These decisions indicate that certain types of activities, because they lie at the heart of the attorney-client relationship, can be performed only by attorneys. Thus, paralegals are prohibited from performing such activities. These activities typically include establishing attorney-client relationships; setting legal fees; giving legal advice or opinions; representing a client before a court unless authorized to do so by the court; and engaging in, encouraging, or contributing to any act that could constitute the UPL. It would be easy for paralegals to violate state statutes prohibiting the UPL by, for example, giving legal opinions and advice, failing to disclose paralegal status and thus being assumed to be an attorney by the client, establishing an attorneyclient relationship, setting legal fees, appearing in court or before government agencies unless authorized to do so (this varies by agency rules), or working as an independent paralegal (in some states).

The types of tasks that may legally be performed by paralegals include virtually any legal task that is supervised by an attorney, except for giving legal advice or representing a client in court. Paralegals may interview clients and witnesses, investigate legal matters, draft legal documents for attorneys’ signatures, and represent clients before some state or federal agencies. Depending on state law, there may be more tasks that paralegals may perform. Tasks that are considered to constitute the practice of law are limited to attorneys.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

37

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 4: Ethics and Professional Responsibility

Explain the difference between licensing and certification. What are the positions of the NFPA, NALA, and the AAfPE on the issue of licensing for paralegals? Do you think paralegals should be licensed?

Answer: Licensing is a government’s official act of granting permission to an individual, such as an attorney, to do something that would be illegal in the absence of such permission. Certification is an attainment of professional competency or standards issued by a professional organization or an educational institution.

The NFPA endorses the regulation of the paralegal profession on a state-by-state basis, including using strong education requirements and competency exams, such as its PACE exam. NALA supports self-regulation through voluntary certification, such as its Certified Paralegal exam. AAfPE takes no position on licensing of paralegals.

Students’ answers will vary as to whether or not they think paralegals should be licensed. [return to top]

Ethics Question 1. Norma Sollers works as a paralegal for a small law firm. She is a trusted, experienced employee who has worked for the firm for twelve years. One morning, Linda Lowenstein, one of the attorneys, calls from her home and asks Norma to sign Linda’s name to a document that must be filed with the court that day. Norma had just prepared the final draft of the document and had placed it on Linda’s desk for her review and signature. Linda explains to Norma that because her child is sick, she does not want to leave home to come into the office. Norma knows that she should not sign Linda’s name—only the client’s attorney can sign the document. She mentions this to Linda, but Linda says, “Don’t worry. No one will ever know that you signed it instead of me.” How should Norma handle this situation?

Answer: Norma should handle the situation by being assertive and asking Linda to review the document first. If Linda is unable to come to the office to sign the document, then it would not be unreasonable for Norma to offer to e-mail a copy of it to Linda for her review. Linda might otherwise ask another attorney familiar with the file to review the document and sign it. Norma could then sign Linda’s name, indicating “S.N.” in parentheses, and keep the faxed or e-mailed approval in the file.

2. The law firm of Dover, Cleary, and Harper decides to store all of its data in the cloud and enters into a contract with Cloud Service Provider for data storage. The firm does not mention its conversion to cloud storage to any of its clients. Six months later, an employee of the Cloud Service Provider notices that one of the firm's clients, a local celebrity, has declared bankruptcy and broadcasts this fact on Facebook, causing significant embarrassment to the client. The client is able to track the disclosure of her confidential information on Facebook to the Cloud Service

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

38

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 4: Ethics and Professional Responsibility

Provider, which obtained the client’s file from Dover, Cleary, and Harper. Is the law firm guilty of an ethical violation?

Answer: Whether the firm is guilty of an ethical violation, in terms of notifying its clients as to how the firm’s data storage is handled, depends on state law. At least one state, Massachusetts, requires client consent before using cloud storage for particularly sensitive data.

The firm had two duties to fulfill before deciding to use an online cloud computer data backup system, and as long as it fulfilled these duties, there is no ethical violation. First, the firm needed to take reasonable care to ensure that the cloud system was secure. Second, the firm needed to take reasonable care that client confidentiality would be maintained. “Reasonable care” to protect a client’s confidential information against unauthorized disclosure would be fulfilled by considering the following: •

•

•

Ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information.

Investigating the online data storage provider's security measures, policies, recoverability methods, and other procedures to determine if they are adequate under the circumstances.

Employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that are stored.

It would also have been prudent to ensure that the company providing confidential data storage has a legally enforceable obligation to maintain the confidentiality of the client data involved. [return to top]

Practice Questions and Assignments 1. In which of the following instances may confidential client information be disclosed? a. The client in a divorce case threatens to hire a hit man to kill her husband because she perceives that killing her husband is the only way that she can stop him from stalking her. It is clear that the client intends to do this. b. A former client sues her attorney for legal malpractice in the handling of a breach-of-contract case involving her cosmetics home-sale business. The attorney discloses that the client is having an affair with her next-door neighbor, a fact that is unrelated to the malpractice or the breach-of-contract case.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

39

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 4: Ethics and Professional Responsibility

Answer: The attorney must disclose the client’s threat to kill her husband. This is required under the exception to the client confidentiality rule (client intends a harmful act). An attorney is obligated to disclose any information to the extent the lawyer reasonably believes necessary to prevent certain death or substantial bodily harm, under the Revised Model Rule 1.6.

The attorney may not disclose the information regarding the former client’s affair with the next-door neighbor because it has no bearing on the malpractice issue in the lawsuit by the former client against her attorney. Students should note that an attorney may only disclose confidential client information that is related to the lawsuit against the attorney.

2. Using the material presented in the chapter on conflicts of interest, determine which type of conflict of interest is presented in the situations below: a. A lawyer has a case pending before the state supreme court, advocating that divorced parents must obtain court permission for their children to move more than 300 miles from the other parent. The same lawyer takes a case for a client who wants to move 700 miles from the other parent, and he argues that the court does not need to grant permission. This case will likely end up before the state supreme court. b. Melissa is an attorney with a criminal law practice. She has a big case in which her client was convicted of violating the state’s recently enacted medical marijuana law, and she is appealing his conviction to the state supreme court.

Tom, her husband, is a paralegal who works for the state attorney’s office and has been assigned to gather research opposing the brief that Melissa filed on behalf of her client. c. Attorney Sam prepares a will for a client; the will leaves the client’s vacation home to Sam. d. A new client brings a case to attorney Mark and asks Mark to represent him.

The case would require Mark to sue a former client whom he previously defended on the same issue.

Answer: a. Issues conflict. b. Family conflict. c. “Gift” conflict. d. Former client conflict.

3. Which of the following actions should you take as a paralegal to avoid charges of engaging in the practice of law? a. Include the title “paralegal” when signing letters and e-mails. b. Introduce yourself without using your title in meetings with clients. c. Include the title “paralegal” on your business cards. d. Disclose your status as a paralegal when communicating with a court. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

40

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 4: Ethics and Professional Responsibility

Answer: a, c, and d.

4. Matthew Hinson is a legal technician. He provides divorce forms and typing and filing services to the public at very low rates. Samantha Eggleston uses his services. She presents him with her completed forms, but she has one question: How much will she be entitled to receive in monthly child-support payments? How may Matthew legally respond to this question?

Answer: Generally, the mere dissemination of legal information does not constitute the unauthorized practice of law. There is a fine line, however, between disseminating legal information (by providing legal forms to a customer) and giving legal advice (which may consist of merely selecting the forms that best suit the customer’s needs), and the courts do not always agree on just where this line should be drawn. Matthew needs to be familiar with his own state’s unauthorized practice of law rules, which answering the question of the monthly amount of child support the client will be entitled to receive likely is. If the state has tables showing monthly child support based on the income of the payor, then Matthew could direct the client to the tables to look up the answer herself.

5. A paralegal experienced in employment discrimination law was hired by an attorney to develop a practice requiring appearances before both the state discrimination agency and the Equal Employment Opportunity Commission (EEOC).

The paralegal had previously advocated for clients before this state agency as permitted by state law. The attorney had no experience with employment discrimination cases. The attorney’s clients were charged contingency fees, with the attorney receiving two-thirds of the fees and the paralegal one-third. The paralegal solicited clients and handled their cases without supervision, to the extent of having more than forty cases pending before the state agency. The paralegal also removed cases from the agencies and refiled them in the courts using the attorney’s name and bar license without seeking the attorney’s approval for doing so. Using the material in the chapter, what ethical violations did the paralegal commit? Did the attorney violate any ethical duties?

Answer: Fee-splitting arrangements with an attorney are considered the unauthorized practice of law and his paralegal is violating that rule and likely state law. The attorney has a duty to supervise the paralegal in this case, who has filed cases in court using the attorney’s name and bar license. This is a violation for the attorney, even though the attorney was merely negligent.

6. According to this chapter’s text, which of the following tasks can a paralegal legally perform? a. Provide legal advice to clients in the course of helping them prepare divorce pleadings. b. Interview a witness to a car accident. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

41

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 4: Ethics and Professional Responsibility

c. d. e. f.

Represent a client in court.

Set legal fees.

Work as a freelance paralegal for attorneys.

Work as a legal technician providing legal services directly to the public.

Answer: A paralegal may legally perform tasks b and e and, in some states, f. Task a, providing legal advice to clients, is not legal. Task c, representing a client in court, is not legal unless authorized by that court. Task d, setting legal fees, is not legal. Task f, working as a legal technician providing legal services directly to the public, depends on state law. [return to top]

Group Project This project involves the review of your state’s version of one of the ethical rules of competence, conflict of interest, or client confidentiality as assigned by your instructor.

Students one, two, and three will locate your state’s version of the rule using online sources, your school’s library, or a local law library. Students one, two, and three will summarize the assigned sections of the rule. The group will determine which rule is the law in your state. Student four will compare the summarized sections of the state rule to the ABA Model Rule discussed in this chapter and will present the comparison to the class.

Answer: Answers will vary by state. [return to top]

Video Questions Watch the “Robo-signing” video clip and read the background information on the Robosigning scandal below, and then answer the following questions. The Robo-signing video clip is used as the subject of the questions that follow because of the legal ethics involved.

The law firm in the video clip represented banks and other clients who held mortgages. When the foreclosure crisis hit in 2009, 2.8 million mortgages were foreclosed nationally; the firm handled more than 70,000 foreclosures, or about 20 percent of foreclosures in the state of Florida. David Stern was one of the many attorneys investigated for Robo-signing the required affidavits in order for the courts to proceed to foreclose on the property.

The lender proves the facts in a judicial foreclosure by submitting documents and a written statement signed under oath in the form of an affidavit, by a person who is usually a bank employee, who has reviewed the documents, and who is supposed to have

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

42

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 4: Ethics and Professional Responsibility

some personal basis for believing the facts to be true. The idea is to prevent foreclosures on homes where the foreclosing bank cannot prove that it actually owns the mortgage, or where the homeowner is not actually in default to the degree asserted in the foreclosure papers. Some big banks, and law firms like Stern’s, were signing thousands of these affidavits a month without the personal knowledge required that the homeowner was in default. They would spend thirty seconds on each one of the thousands of affidavits signed and had no idea whether the facts in them were true; hence the term Robo-signing.

A former paralegal to the law firm testified in a deposition that employees were told to forge signatures, change dates, and use the wrong social security numbers to finish paperwork. In the video clip, the paralegal is quoted as saying, “Mortgages would get placed in different files; mortgages would get thrown out.”

1. Banks and law firms involved in Robo-signing hired many people to process record numbers of residential mortgage foreclosures. If you were a paralegal working for a bank or a law firm that instructed you to execute affidavits attesting to having reviewed documents and records supporting the bank’s foreclosure of the property in question, what are your ethical obligations if, in fact, you have not reviewed (or perhaps even seen) the documents in question?

Answer: Statements in an affidavit are substantially the equivalent of testimony under oath.

Accordingly, it is unlawful to sign an affidavit attesting to a set of facts when one knows the facts are not as stated. Likewise, it is unlawful to sign an affidavit indicating that the statements made are based upon one’s personal knowledge, when one has no knowledge of the matters stated.

Accordingly, the fundamental ethical obligation of a person confronted with the situation is either to refuse to sign the affidavit or to first obtain the requisite knowledge, so that the attested statements are indeed correct and based on the affiant’s personal knowledge.

2. What are some of the ethical violations that the attorney committed during the Robosigning scandal, assuming that the allegations against him and his firm are true? Did the attorney in the video clip have an obligation under the ethics rules to supervise his nonlawyer staff to avoid the Robo-signing? Can attorneys be prosecuted under the criminal laws in addition to being charged with ethics violations? What might be the outcome for the attorney in the video clip and others like him being charged with mortgage fraud?

Answer: As indicated in the answer to Question 1, an affidavit—particularly one filed with a court in support of a legal action commenced in the court (i.e., a complaint for judicial foreclosure, in each of the Robo-signing cases)—is the equivalent of sworn testimony: a statement submitted to the court under oath. Putting aside whether those actions were sufficient to support the affiants’ convictions of perjury (or Stern’s

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

43

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 4: Ethics and Professional Responsibility

conviction for “suborning”—or inducing—their perjury), an attorney is an officer of each court before which he practices law. As such, he owes the court a duty to conduct himself in a manner consistent with the standards set forth in the canons of ethics.

While students may come up with answers from the text based on violations of the ethics rule of competence and perhaps legal malpractice, they probably won’t find the “real answer,” which includes violations of Model Rules 3.3 and 8.4 discussed below.

They should come up with a violation of Model Rule 5.3, requiring supervision of nonlawyer assistants, also analyzed below. If they Google “David Stern,” they will find out that he was disbarred in 2019 when the Florida Bar alleged he failed to supervise employees who improperly processed thousands of foreclosures. Below is an analysis of the ethics rules that were violated.

In particular, Rule 3.3(a) of the Model Rules prohibits lawyers from making false statements to courts, among others, as well as failing to correct false statements already made by the lawyer.

Likewise, lawyers may not provide false evidence to courts under this rule.

According to the allegations, each Robo-signed affidavit contained some sort of factual error that was known to the person signing the affidavit and the attorney who filed the foreclosure action, including one or more of the following types of defect: •

•

•

The affiant was not authorized to sign the affidavit on behalf of the owner of the mortgage in question because the affiant was forging the authorized person’s signature.

The affiant did not have personal knowledge of the information stated in the affidavit—for example, whether the borrower had failed to make payments in a timely manner or otherwise defaulted under the mortgage loan documents— because the affiant had never seen (let alone examined) the loan file.

The owner of the property was improperly identified in the complaint (either by errors in the borrower’s name or last known address), which in some cases resulted in the owner of a property not receiving proper notice of the foreclosure action prior to the property’s foreclosure sale and the owner’s eviction. It would not exonerate the attorney to demonstrate that he did not actually file any false affidavits. Under Rule 5.3 of the Model Rules, a lawyer is responsible for supervising a nonlawyer employee’s conduct and must insure that a nonlawyer employee’s conduct does not violate the Model Rules. Obviously, a lawyer cannot direct a nonlawyer to violate the rules on the lawyer’s behalf, and if the lawyer learns of a violation by a nonlawyer employee, the lawyer must take steps to correct it.

Even assuming that Stern could establish that he did not direct the fraudulent conduct, it does not appear that he took corrective steps once he learned of the fraudulent behavior. For example, he could have filed motions with the courts in © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

44

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 4: Ethics and Professional Responsibility

question to set aside the foreclosures that, in light of the fraudulent pleadings that his firm filed, were wrongfully completed. Moreover, even if the attorney (or someone in his position) could demonstrate that he did not direct the massive falsification of affidavits and that, instead, a group of rogue employees filed the false affidavits at their own instance, there appears to have been, at the very least, a gross failure to supervise the nonlawyer employees of the law firm.

Under Rule 8.4 of the Model Rules, sanctions up to and including disbarment may be imposed on attorneys who engage in unethical conduct that violates the ethics rules (including using others to do so), or who engage in dishonest, fraudulent, or other deceitful conduct, or who behave in a manner that negatively affects the judicial process. Indeed, David Stern has been disbarred under Rule 8.4. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

45

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 5: Sources of American Law

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 5: Sources of American Law

Table of Contents Answers to the End-of-Chapter Questions ................................................................................ 46 Questions for Review .............................................................................................................................. 46 Ethics Question........................................................................................................................................ 49 Practice Questions and Assignments....................................................................................................... 49 Group Project .......................................................................................................................................... 52 Video Questions ...................................................................................................................................... 52

Answers to the End-of-Chapter Questions Questions for Review 1. Define law. What are the primary sources of American law?

Answer: Law consists of the body of rules of conduct established and enforced by the controlling authority (the government) of a society. There are four primary sources of American law: the common law doctrines developed in cases; the United States Constitution and the constitutions of various states; statutory law, including laws passed by Congress, state legislatures, and local governing bodies; and regulations created by administrative agencies.

2. Why is the doctrine of stare decisis the cornerstone of American common law and what is its relationship to binding authority? May courts depart from precedent?

What is a case of first impression?

Answer: Stare decisis means, literally, to stand by things decided. Under this doctrine, judges are obligated to follow the precedents established by higher courts within their jurisdiction. The doctrine of stare decisis became the cornerstone of American law because it was the foundation on which the common law system was based. Stare decisis created consistency, stability, and predictability in the decisions of the courts.

Under the doctrine of stare decisis, judges are obligated to follow the precedents established by their own courts or higher courts within their jurisdiction. These precedents are called binding authorities. Binding authority is any source of law that a court must follow when deciding a case, including constitutions, statutes, regulations that cover the issue being decided, and court decisions that are

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

46

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 5: Sources of American Law

controlling precedents within the jurisdiction. When no binding authority exists, courts will often review persuasive precedents, which are precedents decided in similar cases in other jurisdictions. This is called persuasive authority.

Occasionally, courts will depart from precedent, if the precedent is based on a clearly erroneous application of the law or if the political and cultural environment has changed so significantly that the precedent is wrong. Sometimes there is no precedent on which to base a decision, for example, when a case involves a new technology. This is called a case of first impression.

3. What remedies were originally available from courts of law? Courts of equity?

How did courts of equity evolve? Are the courts of law and equity still separate?

Answer: The difference between courts of law and courts of equity has to do with the remedies that are available from each. Courts of law could grant economic remedies only: land, items of value, and money. Courts of equity evolved to provide additional remedies, based on fairness, that were not available through courts of law, such as orders of specific performance, and injunctions. Today, courts of equity and courts of law have been merged so that one court can award both legal and equitable remedies.

4. What is a statute? How is statutory law created? What is the difference between a statute and an ordinance? What happens when a state statute conflicts with a federal statute?

Answer: A statute is a written law passed by a legislature, such as the federal Congress or a state legislature. Statutory law is the body of written laws enacted by the legislature. An ordinance is a statute (law, rule, or order) passed by a city or county government unit to govern matters not covered by federal or state law.

Any state law that is found to conflict with federal laws enacted by Congress will be deemed invalid. Because some powers are shared, however, it is necessary to determine which law governs in a particular circumstance. Concurrent powers are those shared by the federal government and the states, such as the power to impose taxes or to establish courts. Preemption occurs when Congress chooses to act exclusively in a concurrent area. In this circumstance, a valid federal law or regulation in the preempted area will take precedence over a conflicting state or local law or regulation. Often, it is not clear whether Congress, in passing a law, intended to preempt an entire area of law. In these situations, the courts must determine Congress’s intention. No single factor determines whether a court will find preemption.

5. What is the supremacy clause and where is it located? Briefly describe each article of the U.S. Constitution. What is the Bill of Rights?

Answer: The supremacy clause states that the Constitution, laws, and treaties of the United States are “the supreme Law of the Land.” It is found in Article VI of the U.S. Constitution.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

47

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 5: Sources of American Law

Article I of the U.S. Constitution creates and empowers the legislature. Article II establishes the executive branch, the process for electing and removing a president from office, the qualifications to be president, and the powers of the president.

Article III creates the judicial branch and authorizes the appointment, compensation, and removal of judges; and Article IV requires that all states respect one another’s laws and otherwise establishes relationships between the states. Article V governs the process for amending the Constitution. Article VI establishes the Constitution as the supreme law of the land, and Article VII required the consent of nine of the original thirteen states to ratify the Constitution.

The first ten amendments to the U.S. Constitution are known as the Bill of Rights. They were adopted in 1791 as a series of protections for individuals and, in some cases, businesses.

6. What is national law? What is international law? Explain the three types of legal systems that most countries have.

Answer: National law is the law of a particular nation. International law is defined as a body of written and unwritten laws observed by independent nations which governs the acts of individuals and governments. The three types of legal systems that countries may have are: 1. Common law: used in England, the United States, and countries that were once colonies of Great Britain, such as Australia, Canada, India, Ireland, and Nigeria.

2. Civil law: based on Roman and later French civil or code law, which refers to codified law. It is an ordered grouping of legal principles enacted into law by a legislature or governing body. In a civil law system, the primary source of law is a statutory code and case precedents are not judicially binding; that is, the doctrine of stare decisis does not apply. Today, the civil law system is followed in most of the continental European countries, as well as in the Latin American, African, and Asian countries that were once colonies of the continental European nations. China, Japan, and Thailand also have civil law systems. The legal systems of the state of Louisiana, Puerto Rico, Scotland and Quebec are based on civil law.

3. Islamic or Sharia law: The law in Muslim countries is based on the Koran and on hundreds of years of jurisprudence by religious scholars and covers a wide range of subjects. Countries differ in which areas are governed by religious law.

Sharia has an increasing international influence because its principles shape Islamic finance because it prohibits the payment of interest. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

48

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 5: Sources of American Law

Ethics Question Paralegal Carlos is asked by his supervising attorney to do some research. Carlos is to review a new state statute exempting certified, ill persons from prosecution for medical marijuana use, in order to find out what the requirements are for becoming a certified medical marijuana user. Carlos looks up the relevant state statute and finds the requirements. Carlos conveys this information to John, his supervising attorney. Carlos has neglected to research the federal drug laws and fails to tell the attorney that there is not an exemption for the medical use of marijuana under federal law. The attorney, relying on Carlos’s conclusion, advises the client that once she is a certified medical user, she will be exempt from prosecution. Have John and Carlos violated any ethical rules? Explain.

Answer: John and Carlos violated the ethical rules of competence and adequate attorney supervision. Carlos should have researched the federal drug laws regarding marijuana use; by neglecting to do so, he did not execute his legal work with competence. John did not adequately supervise Carlos, because he did not ask him whether he had researched the federal drug laws as well as the relevant state statutes.

Thus, both John and Carlos violated ethical rules. [return to top]

Practice Questions and Assignments 1. In the following hypothetical situations, identify the remedy being sought and whether it is a remedy at law or a remedy in equity: a. Brianna files a petition with the court. She is seeking compensation from Travis, who failed to deliver new furniture as promised. b. Juan sues Bob, seeking to be compensated for the cost of replacing several new trees that Bob’s dog destroyed. c. Laurie seeks to have a contract enforced for the sale of an antique Mercedes automobile. d. Sam files a petition seeking to prevent the electric company from cutting down a large tree on his property.

Answer: a. b. c. d.

Money damages, remedy at law.

Money damages, remedy at law.

Specific performance, remedy in equity.

Injunction, remedy in equity.

2. Identify the type of law (common law, constitutional law, statutory law, or administrative law) that applies in each of the following scenarios: a. LaToya strongly disagrees with the U.S. government’s decision to declare war on a foreign country. She places an antiwar sign in the window of her home. The city passes an ordinance that bans all such signs. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

49

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 5: Sources of American Law

b. An official of the state department of natural resources learns that the Ferris Widget Company has violated the state’s Hazardous Waste Management Act. The official issues a complaint against the company for not properly handling and labeling its toxic waste. c. Mrs. Sams was walking down a busy street when two teenagers on inline skates crashed into her because they weren’t watching where they were going. As a result of the teenagers’ conduct, Mrs. Sams broke her hip, and according to her doctor, she will never walk normally again. She sues the teenagers for damages. d. Joseph Barnes is arrested and charged with the crime of murder.

Answer: a. The First Amendment to the U.S. Constitution governs freedom of speech. Thus, the type of law that applies is constitutional law. b. Administrative law is illustrated, as well as a violation of a state statute. c. The law governing Mrs. Sams’s injury is the law of negligence, which is based on common law principles. Thus, common law is the type of law that applies. d. Statutory law has replaced common law as the basis of criminal law in most states. Thus, statutory law is the law that applies.

3. Look at the U.S. Constitution in Appendix H of this textbook. Identify the amendment and quote the relevant language in the Bill of Rights that gives U.S. citizens the following rights and protections: a. The right to freedom of the press. b. Protection from excessive bail. c. Protection against self-incrimination. d. The right to counsel in criminal prosecutions. e. The right to keep and bear arms.

Answer: a. First Amendment: “Congress shall make no law . . . abridging the freedom of speech or of the press. . .” b. Eighth Amendment: “Excessive bail shall not be required . . .” c. Fifth Amendment: “. . . nor shall be compelled in any criminal case to be a witness against himself . . .” d. Sixth Amendment: “In all criminal prosecutions . . . to have the Assistance of Counsel for his defense.” e. Second Amendment: “. . . the right of the people to keep and bear Arms, shall not be infringed.”

4. Identify the constitutional amendment being violated in the following hypothetical situations: a. A state imposes the death penalty on a 17-year-old.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

50

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 5: Sources of American Law

b. The federal government suppresses political speech based on the speaker’s identity as a corporation. c. The police decide that because a house is located in a poor neighborhood, it must be a crack house. The police burst in, tear the house apart looking for drugs, and find nothing. d. A local government bans handgun possession in the home.

Answer: a. Eighth Amendment. b. First Amendment. c. Fourth Amendment. d. Second Amendment.

5. Unhappy with her attorney’s services, Ashley decided to sue him. The Arkansas Supreme Court issued an opinion in the case, and the citation to that opinion is Ashley v. Eisele, 247 Ark. 281 (1969). In this citation: a. Who is the appellant? b. Who is the appellee? c. In what volume of the Arkansas Reports can this case be located? At what page number? d. What year was the case decided? e. Why would an attorney or a judge be interested in reading a case this old?

Answer: a. It depends on how the Supreme Court of Arkansas places the names in a case before it.

Some appellate courts place the name of the person appealing first, which is different from what the trial court does by placing the name of the plaintiff first. To find out who is the appellant, the court’s opinion would have to be consulted. b. It depends on how the Supreme Court of Arkansas places the names in a case before it.

Some appellate courts place the name of the person appealing first, which is different from what the trial court does by placing the name of the plaintiff first. To find out who is the appellee, the court’s opinion would have to be consulted. c. 247 is the volume of the Arkansas Reports where the case is located. It is found on page 281. d. 1969 is the year of the decision e. Stare decisis. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

51

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 5: Sources of American Law

Group Project This chapter describes uniform laws that were created to alleviate conflicting laws that hindered rapidly developing trade among the states. One such uniform law that was created was the Uniform Commercial Code (UCC), a core provision of which regulates the sales of goods. Trade problems also arose among nations. For this project, the group should search the Internet to locate a uniform international law similar to the UCC. Student one will research the source of law to determine what entity created it and what form the law takes (case law, statutory law, treaty, etc.). Student two will research the law and provide an overview of its main provisions. Student three will research the role of the U.S. government and U.S.-based businesses—how they are, or are not, governed by this law and why. Student four will prepare a two-page written summary of this particular law on behalf of the group and submit it to the instructor.

Answer: Students’ answers will vary. One significant uniform international law that students are likely to find is CISG, or the United Nations Convention on Contracts for the International Sale of Goods. The following websites provide additional information on this topic: 1. The United Nations https://legal.un.org/avl/ha/ccisg/ccisg.html 2. Institute of International Commercial Law: www.cisg.law.pace.edu/ [return to top]

Video Questions Watch the “Patenting Human Genes” video clip and read the information about the case found below. Then, answer the following questions.

The video involves the United States Supreme Court decision in the case, Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S.Ct. 2107 (2013), in which patients, medical researchers and medical organizations, and others, brought suit against the U.S. Patent Office and Myriad Genetics challenging a patent issued under the Patent Act on genes showing that a woman was at higher risk for breast and ovarian cancer. The right to patent inventions originates in Article 1, Section 8 of the United States Constitution, but is not challenged in the Myriad case.

In its unanimous decision in Myriad, 133 S.Ct. 2107, 2116, the Supreme Court quotes the Patent Act: “Whoever invents or discovers any new and useful composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U.S.C. § 101. The Court notes that it has “long held that

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

52

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 5: Sources of American Law

this provision contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable.” The Court then cites the cases Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. ––––, 132 S.Ct. 1289, 182 L.Ed. 2d 321 (2012) and Diamond v. Chakrabarty, 447 U.S. 303, 309, 100 S.Ct. 2204, 65 L.Ed. 2d 144 (1980), in support of this rule.

1. What did the U.S. Supreme Court decide in this case? Why? ANSWER: The U.S. Supreme Court ruled unanimously that biotech companies may not patent human genes, but that genes made in a lab may be patented. Genetically modified crops remain eligible for patent protection so long as there is something new with markedly different characteristics from those found in nature. The Court decided this because human genes exist in nature and were not created by Myriad Genetics, Inc. 2. What type of governmental entity is the U.S. Patent and Trademark Office? Which branch of government is it part of? Which branch of government is the U.S. Supreme Court a part of?

ANSWER: The U.S. Patent and Trademark Office is an administrative agency within the executive branch of the federal government. The U.S. Supreme Court is within the judicial branch of the federal government.

3. List the sources of law described in Chapter 5 that are involved in the case.

ANSWER: The sources of law described in Chapter 5 that are involved in the case include: • Court opinions.

• Statutes.

• Agency decisions.

4. Explain how the cases May v. Prometheus and Diamond v. Chakrabarty are examples of precedent and how stare decisis is invoked by the Supreme Court.

ANSWER: The cases May v. Prometheus and Diamond v. Chakrabarty are precedent because they are existing cases decided on legal principles applicable to the facts and legal issues in the Myriad case. Stare decisis is the doctrine that requires the use of existing precedent to decide new cases.

Here, the U.S. Supreme Court relies on stare decisis by invoking the previously established rule that natural phenomena are not patentable, and thus preserving continuity in what is patentable under the U.S. patent law.

5. Look up Article 1, Section 8 of the U.S. Constitution. What does it say about what is patentable? Even though there is not a constitutional challenge to Article 1, Section 8 in Myriad, do you think that the decision in the case is consistent with the U.S. Constitution? © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

53

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 5: Sources of American Law

ANSWER: Article 1, Section 8 provides: “That Congress shall have the power to . . . promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Since the Court held that genes are not discoveries and are therefore not patentable, this decision is consistent with the Constitution.

6. Explain how this case illustrates the concept of checks and balances described in the chapter.

ANSWER: Each branch performs a separate function, and no branch may exercise the authority of another branch. Each branch has some power to limit the actions of the other branches. Congress, for example, can enact legislation relating to spending and commerce, but the President can veto that legislation. The executive branch is responsible for foreign affairs, but treaties with foreign governments require approval by the Senate. Although Congress determines the jurisdiction of the federal courts, the federal courts have the power to hold acts of the other branches of the federal government unconstitutional. With this system of checks and balances, no one branch of government should accumulate too much power (see p. 133).

In the Myriad decision, the U.S. Supreme Court (the judicial branch) overruled a patent issued by the U.S. Patent and Trademark Office (the executive branch), keeping the U.S. Patent and Trademark Office in check with its statutory authority issued by Congress. Congress derived its authority to pass the Patent Act from Article 1, Section 8 of the U.S. Constitution.

Watch the video clip, “The Supreme Court Legalizes Gay Marriage in all 50 States,” which shows part of a news broadcast reporting on the decision in Obergefell v.

Hodges, 135 S.Ct. 2584 (2015), where the U.S. Supreme Court ruled 5-4 that states may not outlaw same-sex marriage. The Court also held that all fifty states must recognize same-sex marriages performed in other states.

The reporter in the video clip states that “The Court has said that the Constitution requires that gays and lesbians be treated equally. That they have a right to marry.

That means in every state gays and lesbians will be allowed to marry, just like heterosexual couples.”

1. Review the material in Chapter 5 on the U.S. Constitution. Which amendment prohibits states from depriving persons of life, liberty, or property, without due process of law? Why might the U.S. Supreme Court have said that gay marriage is a liberty that should be protected by due process of law?

ANSWER: The Fourteenth Amendment prohibits states from depriving persons of life, liberty, or property without due process of law. That liberty includes personal freedoms and choices, such as the right to marry and to raise a family.

2. Review Section 1 of the Fourteenth Amendment found in the appendix. Using the reporter’s description of equal treatment of gays and lesbians as a basis for legalizing

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

54

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 5: Sources of American Law

gay marriage, locate another basis for supporting gay marriage in the Fourteenth Amendment. Include in your answer the language in the Amendment that answers the question.

ANSWER: The equal protection clause of the Fourteenth Amendment is the other basis for the Supreme Court’s decision. It says, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

3. Review the material in Chapter 5 about the federal system of government. What does it say about the division of power between the federal and state governments? Which areas of law are governed by state statutes? Should the Supreme Court have declined to hear the case and let the states decide the issue instead? Why or why not?

ANSWER: In the federal system of government established by the Constitution, the national government (usually called the federal government) and the state governments share sovereign power.

The Constitution specifies, however, that certain powers can be exercised only by the national government. For example, the national government is authorized to regulate domestic and foreign commerce (trade). The Constitution makes clear that laws made by the national government take priority over conflicting state laws. At the same time, the Constitution provides for certain states’ rights, including the right to control commerce within state borders and to exercise powers to protect public health, safety, morals, and general welfare (see p. 132).

State statutes include state laws governing real property and insurance (see Chapter 16), estates and family law (discussed in Chapter17), the formation of corporations and other business entities (see Chapter 18), and certain crimes (see Chapter 13), along with state versions of the Uniform Commercial Code (see p. 133).

The answers to the remaining questions will vary as they ask for students’ opinions. Those in favor of states’ rights may argue that the Tenth Amendment reserves to the states the right to determine issues of family law, including marriage.

Those who oppose states having the right to determine the issue of gay marriage may argue that prohibiting gay marriage is unconstitutional, which the U.S. Supreme Court has the right to determine. They may also argue that Article IV of the Constitution requires that all states respect each other’s law and give citizens of other states the same rights and privileges it gives its own citizens (full faith and credit), so it is necessary to legalize gay marriage on the national level in order for the laws of thirtyseven states to be enforceable in all fifty states. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

55

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 6: The Court System and Alternative Dispute Resolution

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 6: The Court System and Alternative Dispute Resolution

Table of Contents Answers to the End-of-Chapter Questions ................................................................................ 56 Questions for Review .............................................................................................................................. 56 Ethics Question........................................................................................................................................ 59 Practice Questions and Assignments....................................................................................................... 60 Group Project .......................................................................................................................................... 62 Video Questions ...................................................................................................................................... 62

Answers to the End-of-Chapter Questions Questions for Review 1. Define jurisdiction. Define venue. What is the difference between personal jurisdiction and subject-matter jurisdiction? What is a long arm statute?

Answer: Jurisdiction is the authority of the court to hear and decide a specific action.

Jurisdiction is important, because a court cannot hear a case without it. Venue is the geographic district in which an action is tried and from which the jury is selected.

The difference between personal jurisdiction and subject-matter jurisdiction is that personal jurisdiction is the court’s authority to render a binding judgment against the parties (or people) involved in a lawsuit. State courts usually have personal jurisdiction over the people located within their states by virtue of their residency in the state. Subject-matter jurisdiction is the court’s authority to hear certain types of disputes.

A long arm statute is a statute that permits a state to obtain personal jurisdiction over nonresident individuals and corporations. However, individuals or corporations must have certain “minimum contacts” with that state for the statute to apply.

2. Describe the types of cases over which federal courts exercise jurisdiction.

Answer: Federal courts have subject-matter jurisdiction over: • •

Federal questions, which arise when the plaintiff’s claim is based, at least in part, on the U.S. Constitution, a treaty, or a federal law.

Diversity of citizenship, which arises when the case involves citizens of different

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

56

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 6: The Court System and Alternative Dispute Resolution

• • • • •

states, a foreign country and citizens of a state or of different states, or citizens of a state and citizens or subjects of a foreign country; the amount in controversy must exceed $75,000 for jurisdiction based on diversity of citizenship to arise.

Federal crimes.

Bankruptcy.

Patents, trademarks, and copyrights.

Some areas of admiralty law.

Suits against the United States.

3. How do original and appellate jurisdictions differ? The relationship between state and federal jurisdiction is an example of what type of jurisdiction?

Answer: Courts that have original jurisdiction are courts of the first instance and are usually trial courts—courts in which lawsuits begin, trials take place, and evidence is presented. Courts having appellate jurisdiction act as reviewing courts.

In general, cases can be brought before them only on appeal from an order or a judgment of a trial court or other lower court.

The relationship between state and federal jurisdiction may be one of either concurrent or exclusive jurisdiction. When both federal and state courts have the power to hear a case, as is true in suits involving diversity of citizenship, concurrent jurisdiction exists. When cases can be tried only in federal courts or only in state courts, exclusive jurisdiction exists. State courts have exclusive jurisdiction over all matters that are not subject to federal jurisdiction, such as family law and probate law.

4. How do the functions of a trial court differ from the functions of an appellate court?

Answer: The primary function of a trial court is to decide the outcome of factual disputes, which is often done by a jury. A trial court is presided over by a judge, who issues a judgment based on the jury’s conclusion. During the trial, the attorney for each side introduces evidence (such as documents, exhibits, and testimony of witnesses) in support of his or her client’s position. Each attorney is given an opportunity to cross-examine witnesses for the opposing party and challenge evidence introduced by the opposing party.

The functions of a trial court differ from the functions of an appellate court because an appellate court reviews cases decided by trial courts. Appellate courts do not retry cases. They review the record of the case on appeal, including the transcript of the trial proceedings, to determine whether the trial court committed any errors of law. Appellate courts look at questions of law and procedure, but usually not at questions of fact. Normally, an appellate court will defer to a trial court’s findings of fact, because the trial court judge and jury were able to directly observe witnesses and, therefore, were in a better position to evaluate testimony.

An appellate court will challenge a trial court’s finding of fact only when the © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

57

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 6: The Court System and Alternative Dispute Resolution

finding is clearly erroneous (when it is contrary to the evidence presented at trial) or when there is no evidence to support the finding.

5. Describe the procedure for cases to reach the United States Supreme Court.

Answer: Most cases reach the U.S. Supreme Court by the filing of a petition for a writ of certiorari. There is no absolute right of appeal to the U.S. Supreme Court. If the Court decides to issue a writ of certiorari, an appeal is granted. The petitions for certiorari that are granted usually involve cases that raise important constitutional issues or are cases involving conflicting state or federal court decisions. The Court will issue a writ only if at least four of the nine justices vote to do so. This is known as the rule of four.

6. Describe the various methods of alternative dispute resolution.

Answer: The methods of alternative dispute resolution (ADR) include: • Negotiation: A method of ADR in which the parties to the dispute, with or without their attorneys, meet to try to work out their problems to avoid going to court.

• Mediation: A method of ADR in which the parties attempt to reach agreement with the help of a neutral third party, called a mediator (or a panel of mediators), who helps the litigants explore alternatives for settling their differences.

• Arbitration: A formal method of ADR that involves a neutral third party (a lawyer, expert, or panel of specialists, for example) who renders a decision after the parties present their cases and evidence during a hearing.

Arbitration may be either voluntary or mandatory.

• Binding mediation: A method of ADR in which a neutral mediator tries to facilitate agreement between the parties, but if no agreement is reached, the mediator issues a legally binding decision on the matter.

• Mediation arbitration (med-arb): A method of ADR in which an arbitrator first attempts to help the parties reach an agreement, just as a mediator would. If no agreement is reached, then formal arbitration is undertaken, and the arbitrator issues a legally binding decision.

• Early neutral case evaluation: A method of ADR in which parties select a neutral third party (generally an expert in the subject matter of the dispute) to evaluate their respective positions. The parties explain their positions to the case evaluator however they wish. The case evaluator then assesses the strengths and weaknesses of the parties’ positions, and this evaluation forms the basis for negotiating a settlement.

• Summary jury trials (SJTs): A method of ADR in which parties present their arguments and evidence to a jury, and a jury renders a verdict. The verdict is not legally binding but serves to guide the parties in reaching an

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

58

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 6: The Court System and Alternative Dispute Resolution

•

•

•

•

agreement on the disputed matter during the mandatory negotiations that immediately follow the trial.

Mini-trials: These are private proceedings in which each party’s attorney briefly argues the party’s case before the other party. Often, a neutral third party, who acts as an adviser, is also present. If the parties fail to reach an agreement, the adviser renders an opinion as to how a court would likely decide the issue.

Collaborative law: A form of ADR in which both parties, their attorneys, and any professionals working with the parties meet to resolve their issues without litigation. The lawyers act as negotiators and communication moderators while advising their clients about their legal rights, entitlements, and obligations. If either party seeks court intervention, both attorneys must withdraw from representation.

Court-referred ADR: Today, most states require or encourage parties to undergo mediation or arbitration prior to trial. Generally, when a trial court refers a case for arbitration, the arbitrator’s decision is not binding on the parties. If the parties do not agree with the arbitrator’s decision, they can go forward with the lawsuit. Courts experiment with a variety of ADR alternatives in order to speed up justice and reduce its cost.

Online dispute resolution: A number of organizations and firms offer negotiation and arbitration services through online forums. These forums have been a practical alternative for the resolution of disputes over the right to use a certain website address or the quality of goods purchased over the Internet.

[return to top]

Ethics Question Aaron is a paralegal with a law firm that specializes in intellectual property law.

Aaron’s supervising attorney asks him to e-mail a letter to the client that the attorney has prepared. The letter and its attachments discuss a patent application and contain drawings and plans for a heated steering wheel that the client plans to sell to automobile manufacturers. Aaron does so without encrypting the letter or the attachments, which contain confidential information. A temporary employee working at the client’s office accesses the unencrypted e-mail and steals the information. Have any ethical rules been violated by Aaron? By his supervising attorney? If so, which rules? What could Aaron and his supervising attorney have done differently to better protect the client’s interests?

Answer: The ABA in Formal Ethics Opinion 477 allows unencrypted routine e-mail, but

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

59

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 6: The Court System and Alternative Dispute Resolution

cautions that “particularly strong protective measures, like encryption, are warranted in some circumstances.” Aaron’s firm should be aware of the dangers of sending intellectual property documents through e-mail, and should have an internal policy requiring the encryption of email containing communication of highly sensitive information to avoid breaches of client confidentiality which appears to have occurred here. [return to top]

Practice Questions and Assignments 1. Identify each of the following courts. If not indicated, specify whether it is a state or federal court. a. This state court has general jurisdiction over civil and criminal cases and takes testimony from witnesses and receives evidence. b. This court has appellate jurisdiction and is part of a court system that is divided into geographic units called circuits. c. This state court only hears issues related to divorce and custody matters. It has original jurisdiction. d. This court can exercise federal question and diversity-of-citizenship jurisdiction, and receives testimony and other evidence. e. The decisions of this court are usually final. It is the highest appellate court within its court system. f. This federal court has nine justices. It has original jurisdiction over a several types of cases but functions primarily as an appellate court. There is no automatic right to appeal cases to this court.

Answer: a. b. c. d. e. f.

State trial court.

Federal court of appeals.

State domestic relations court.

Federal district court.

State supreme court.

United States Supreme Court.

2. Look at Exhibit 6.4. How many federal circuits are there? Which states are included in the 12th Circuit? In which federal circuit is your state located? How many federal judicial districts are located in your state? In which federal district is your community located?

Answer: There are 13 judicial circuits, each of which contains a court of appeals. All except one are based on geographic regions of the country. The 12th circuit is composed of Washington, DC, only. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

60

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 6: The Court System and Alternative Dispute Resolution

See Exhibit 6.4 for the state-specific answers, which will vary by student.

3. Marcella, who is from Toledo, Ohio, drives to Troy, Michigan, and shops at a popular mall. When leaving the parking lot, Marcella causes a car accident when she runs a stop sign. On what basis could a Michigan court obtain jurisdiction over Marcella? If the damages in the lawsuit exceeded $75,000, could a federal court in Michigan have jurisdiction over this case? On what jurisdictional basis? What type of jurisdiction would exist if both the courts or the state of Michigan and the federal court have jurisdiction over this case? Discuss the other types of jurisdiction the court may have in this case (such as in personam jurisdiction, in rem jurisdiction, subject-matter jurisdiction, limited jurisdiction, general jurisdiction, original jurisdiction, appellate jurisdiction, concurrent jurisdiction, and exclusive jurisdiction).

Answer: The Michigan courts could obtain jurisdiction over Marcella on the basis of a state long arm statute. The federal district court in Michigan could also exercise original jurisdiction over this case because it involves diversity of citizenship.

Diversity of citizenship arises when the amount in controversy exceeds $75,000.

If both the courts or the state of Michigan and the federal court have jurisdiction over this case, it would be an example of concurrent jurisdiction. In this situation, the plaintiff would be able to choose whether to bring the suit in a federal or a state court.

4. Using the materials presented in the chapter, identify the following methods of alternative dispute resolution: a. The parties to a divorce meet with a neutral third party who emphasizes points of agreement and proposes solutions to resolve their dispute. After several hours, the parties come to a solution. b. The parties to a contract dispute submit it to a neutral third party for a legally binding resolution. The neutral third party is not a court. c. The plaintiff and defense attorneys in a personal-injury case propose settlement figures to one another and their clients in an effort to resolve the lawsuit voluntarily. d. The attorneys from the personal-injury example above are able to reach an acceptable settlement figure of $100,000. They draft an agreement whereby the plaintiff gives up her right to sue in exchange for a payment of $100,000 by the defendant. e. A commercial dispute involving $95,000 in damages is filed in a federal court. The judge requires the parties’ attorneys to present their arguments and supporting evidence, excluding witnesses, to the jury. The jury then renders a nonbinding verdict. Once the nonbinding verdict is rendered, the parties reach a settlement.

Answer: a. Mediation.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

61

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 6: The Court System and Alternative Dispute Resolution

b. c. d. e.

Binding arbitration.

Negotiation.

Negotiation resulting in a settlement agreement.

Summary jury trial.

[return to top]

Group Project As a group, diagram your state court system by going to the National Center for State Courts website at: https://www.ncsc.org/information-and-resources/state-courtwebsites. Use the “Alphabetical Quick Jump” link to locate your state. The jurisdiction of each court may be accessed by clicking on the “Court Structure Chart.” Students one and two will locate the state’s trial courts and describe the jurisdiction of each one.

Courts of limited jurisdiction, such as probate and divorce courts, should be included along with the trial courts of general jurisdiction. Students will create a document with a diagram showing the various levels of trial courts, as well as the subject matter jurisdiction of each one. Student three will describe the state’s intermediate appellate court and the types of appeals it hears. This information should be added to the diagram created by students one and two.

Student four will research the state’s highest appellate court, list the types of appeals it accepts, and outline the basic procedure for filing an appeal with this court. This information should be added to the diagram created by the other students. Each group will submit its court diagram to the instructor.

Answer: Group projects will be state-specific. Instructors may prefer to provide a link to their state courts’ website containing the state’s organization chart and jurisdiction for each court instead of using the National Center for State Courts Website link. [return to top]

Video Questions Watch the video clip for this chapter and answer the questions below.

1. It is the generally accepted view that the Supreme Court has the authority to strike down laws that it deems to violate the strictures of the United States Constitution. The Constitution states that the “judicial power of the United States shall be vested” in the Supreme Court and such other lower courts as Congress may determine. Nowhere does the Constitution explicitly state that the Supreme Court has the authority to declare acts of Congress (or laws enacted by the states) to be unconstitutional and, therefore, void. What is the source of the Supreme Court’s power of judicial review?

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

62

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 6: The Court System and Alternative Dispute Resolution

See a discussion of the Court’s power of judicial review on the U.S. Supreme Court’s website at: www.supremecourt.gov/about/constitutional.aspx.

Answer: Until the Supreme Court’s 1803 seminal decision in Marbury v. Madison, it was not clear that any of the three co-equal branches of government was entitled to primacy in its interpretation of the Constitution. In Marbury, however, the Supreme Court declared for the first time that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” The Court further expounded on the role of the federal judiciary, stating that “[t]hose who apply the rule to particular cases [i.e., federal judges] must of necessity expound and interpret that rule. If two laws [i.e., the Constitution and a law enacted by Congress] conflict with each other, the courts must decide on the operation of each.” For over 200 years, the legislative and executive branches of the federal government have acquiesced in the Supreme Court’s role as ultimate interpreter of the Constitution, having the authority to nullify both federal and state laws that the Court deems to violate the Constitution.

2. The video opens with the report that the Supreme Court’s decisions of the day mark “a distinct turn to the right.” A commentator adds that, of the decisions handed down that day, “[a]lmost everything of significance that divided along ideological lines was won by the conservatives.” While this has changed to an extent in 2015 with Obergefell v. Hodges, 135 S.Ct. 2584 (2015) and King v. Burwell, 135 S.Ct. 2480 (2015), and in 2012 with National Federation of Independent Business v. Sebelius, 132 S.Ct 2566 (2012), decisions legalizing gay marriage and upholding the Affordable Care Act, the U.S. Supreme Court decisions have remained decidedly conservative. Even so, implicit in the reporter’s and commentator’s characterizations (“right,” “ideological lines,” “conservative”) is the view that decisions of the Supreme Court are based, at least in part, on the political stances of the justices sitting on the Court.

It is an oft-proclaimed point of pride in our country that in the United States the “rule of law prevails.” The corollary of that statement is that the body having the authority to “say what the law is” should be outside of the political process—or else the rule of law becomes nothing more than the expression of the ever-changing views of the masses.

Is it consistent with the Supreme Court’s role as the ultimate organ of the law for a Supreme Court justice—let alone a bloc of justices—to allow individual political views to influence the outcome of any given case? Since the other two co-equal branches of government are fundamentally political institutions, if it appears that Supreme Court decisions are driven by political consideration (i.e., they are susceptible to being legitimately characterized as “conservative” or “liberal”), does that make the Supreme Court an extension of the political branches of government? What does that say about the “rule of law”? Is there a way for this balance of power on the Court to change? If so, how?

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

63

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 6: The Court System and Alternative Dispute Resolution

Answer: There is no right or wrong answer to this question. It is hoped that students will understand that the appointment and confirmation process applicable to federal judges and their unique tenure during “good behavior”—which is currently interpreted to mean a lifetime appointment, unless a justice engages in impeachable offenses— are fundamentally intended to insulate the justices from shifting political tides and to imbue the Supreme Court with an aura of impartiality. The question is intended to elicit answers—or, depending on the context in which the question is presented, a discussion—touching upon, among other things, stare decisis, the importance to the court’s role in the national government of having the public perceive the Court as being above the fray, and whether a politically attuned (or politically motivated) Court is consonant with the “rule of law.” In order to change the balance of power on the U.S. Supreme Court, a Justice would have to retire and his or her replacement would have to be appointed by a liberal (Democratic) President. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

64

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 7: Legal Research and Analysis

Table of Contents Answers to the End-of-Chapter Questions ................................................................................ 65 Questions for Review .............................................................................................................................. 65 Ethics Question........................................................................................................................................ 68 Practice Questions and Assignments....................................................................................................... 69 Group Project .......................................................................................................................................... 77 Video Questions ...................................................................................................................................... 77

Answers to the End-of-Chapter Questions Questions for Review 1. What is binding authority? Persuasive authority?

Answer: The difference between binding authority and persuasive authority is that binding authority consists of all legal authorities that a court must follow, while persuasive authority is any legal authority that a court may look to for guidance but is not bound to follow.

2. What is the difference between a case on point and a case on “all fours”?

Why is finding either of these important when researching case law?

Answer: A case on point is a case involving factual circumstances and issues that are similar to the case before the court. A case on “all fours” is a case in which all four elements of the case (the parties, the circumstances, the legal issues, and the remedies sought) are similar. It is important to find a case that is on point or on all fours, because this is the first requirement for case law to serve as binding authority.

The second requirement is that it must be decided by a superior court within the controlling jurisdiction.

3. What is the definition of a primary source of law? A secondary source of law?

How are these sources used in legal research?

Answer: The difference between primary and secondary sources of law is that primary sources consist of court decisions, statutes enacted by legislative bodies, rules and regulations created by administrative agencies, presidential orders, and generally all documents that contain the law, while secondary sources consist of books and articles that interpret and summarize the law. Typically, researchers © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

65

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

begin with secondary sources. Secondary sources are often referred to as finding tools because they help the researcher to find primary sources of law on the topics that they are researching and to understand how those sources have been interpreted by others. Once primary sources have been located using secondary sources, the researcher can then go into the primary sources to find the established law.

4. List and identify the various parts of a case citation. How do citations help you locate a case?

Answer: The parts of the case citation are: The case name (style).

The volume number.

The reporter abbreviation.

The page number of the reporter.

Year of decision.

The case citation helps the researcher to locate cases by giving a specific reporter, its volume number, and the page within the volume on which the case is located.

5. List and briefly describe the components of a reported case. Which part should you focus on when analyzing a case? How do you brief a case? What is the purpose of briefing a case? What should be included in a case brief?

Answer: Legal professionals often brief, or summarize, cases they have researched. It is easier to compare and synthesize research results accurately and efficiently when cases have been read, analyzed, and summarized in a brief.

• • • • • • • • •

The components of a reported case are: The case title, which indicates the names of the parties to the lawsuit.

The case citation.

The docket number, which is the number assigned by the court clerk to the case when a case is initially filed.

The dates argued and decided.

The syllabus, which is a brief summary, or synopsis, of the case, its facts, its issues, and the court’s decision.

The headnotes, which are short paragraphs that summarize rules of law discussed in a case.

The names of counsel, which are the names of the lawyers representing the parties.

The name of the judge or justice authoring the opinion (note that in some cases, the decision will be authored per curiam—Latin for “by the court”— which means that the opinion is that of the whole court and not the opinion of any one judge or justice).

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

66

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

•

The opinion, which contains the analysis and decision of the judge or justices who heard and decided the case—this usually includes a brief statement of the facts of the case, a summary of the legal issues raised by the facts, and the remedies sought by the parties; most importantly, a paralegal should focus on the opinion of the case when analyzing it.

To brief a case, the paralegal should include the following elements: • • • • • • •

Citation: include both case name and full citation.

Facts: include reasons for lawsuit (who did what to whom) and the identity and arguments of plaintiff and defendant.

Procedure: include the judicial history of the case—which courts it has been through and what each court decided.

Issue(s): state the question(s) before the court.

Decision: state the court’s answer to the issue—yes or no—if possible.

Reasoning: briefly summarize the court’s reasons for arriving at its decision, including brief references to the law relied on.

Holding: state the rule of law for which the case stands.

6. Describe how statutes are published. What is the name of the official code containing the statutes of the U.S. government? What are the parts of a statute’s citation?

Answer: The forms in which statutes are published are slip laws, session laws, and codes. Statutes are enacted by legislatures and regulations are promulgated by administrative agencies. The official code of the U.S. government is the United States Code. A citation to the U.S.C. includes title and section numbers. Thus, a reference to “28 U.S.C. Section 1346” means that the statute can be found in Section 1346 of Title 28. “Section” may also be designated by the symbol §, and “Sections” by §§.

7. What are principles of statutory interpretation? List four principles of statutory interpretation. What is the plain meaning rule?

Answer: Principles of statutory interpretation are techniques used to properly interpret statutes. The four most important principles of statutory interpretation are: 1. Read a Statute as a Whole. Provisions in different parts of a statute should be interpreted to fit together, not conflict. As a result, to understand a statute, you must look at all of the statute, not just a single section. A good first step is to skim the statute quickly, noting the organizational structure, location of definition sections, and other key elements.

2. Statutory Definitions Govern. When a statute includes a specific definition, or an area of law uses a word as a term of art, that meaning will be used in interpreting the statute. Dictionary definitions are guides when there is no statutory definition, but dictionaries differ and the meaning of words can shift over time.

The United States Supreme Court has relied on dictionaries in hundreds of cases. You should check to see if a particular dictionary is recognized as © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

67

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

authoritative by the court involved and should use an edition of the dictionary that was current at the time legislation was drafted. Just doing an Internet search of a word is not acceptable research technique.

3. Distinguish between “and” and “or.” When a list of requirements in a statute uses “and,” all of the things in the list must be satisfied. When the list in a statute uses “or,” only one of the items in a list must be satisfied.

4. “Shall” does not mean “may” and “may” does not mean “shall.” When a statute uses the word “shall,” it will be interpreted as requiring a particular action. When a statute uses the word “may,” it will be interpreted as allowing discretion.

The Plain Meaning Rule. If the language of a statute is clear, the court applies the language as written. While this rule seems obvious and easy to employ, it is not, because courts and agencies often stumble over how to interpret particular words in a statute. [return to top]

Ethics Question 1. Krystee Connolly, a paralegal in a litigation firm, has finished reading a brief that the opposing side submitted to the court in support of a motion for summary judgment. In the brief, she notices a citation to a state supreme court case of which she is unaware. She is experienced in the field and keeps current with new cases as they are decided. She wants to look at the case because it gives the other side a winning edge. She checks in the case digests and state encyclopedias, as well as on Westlaw. She checks the state supreme court’s website and sees no record of such a case. She asks the legal assistant for the opposing counsel to give her a copy of the case. When she does not receive it, she decides that the case is probably fictional. What should Krystee do?

Answer: Krystee is reasonable in her suspicion that the case cited in the brief is probably fictional, and she should report her suspicion and reasons for it to her supervising attorney. Including a fictional case in a brief violates the ethical rules requiring candor and honesty to the court. Specifically, the ABA Model Code D.R. 710285 and ABA Model Rule 3.3(a)(1) both prohibit a lawyer from making false statements of law or fact. Opposing counsel has made a false statement of law in violation of the ABA Model Rules, and it would also violate most states’ ethical rules.

Krystee’s supervising attorney needs to be aware of this violation by opposing counsel so that he can determine how to proceed. In all likelihood, the attorney will bring the matter to the judge’s attention. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

68

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

Practice Questions and Assignments 1. Identify the case name, volume number, reporter abbreviation, page number, and year of decision for each of the following case citations, including the parallel citations: Towe v. Sacagawea, Inc., 246 Or.App. 26, 264 P.3d 184 (2011) Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) Answer: a. Towe v. Sacagawea, Inc., 246 Or.App. 26, 264 P.3d 184 (2011) • Case name: Towe v. Sacagawea, Inc. • Volume numbers: 246, 264 • Reporter abbreviations: Or.App., P.3d • Page numbers: 26, 184 • Year of decision: 2011 b. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) • Case name: Miranda v. Arizona • Volume numbers: 384, 86, 16 • Reporter abbreviations: U.S., S.Ct., L.Ed.2d • Page numbers: 436, 1602, 694 • Year of decision: 1966 2. Identify the title number, code abbreviation, and section number for the following statutory citations: a. 42 U.S.C. Section 1161(a) b. 20 C.F.R. 404.101(a) Answer: a. 42 U.S.C. Section 1161(a) • Title number: 42 • Code abbreviation: U.S.C. • Section number: 1116(a) b. 20 C.F.R. 404.101(a) • Title number: 20 • Code abbreviation: C.F.R. • Section number: 404.101(a) 3. Ana returns home from a business trip to find that her house has been ransacked. Her former boyfriend, Jason, had a key, but when they broke up, he returned it. Ana’s neighbors tell her that someone matching Jason’s description stayed at Ana’s house while she was away and had a loud party one night. Ana’s food has been taken, several pieces of her furniture have been broken, her bed was slept in, and the house is such a mess that it will require professional cleaning. Ana © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

69

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

has come to your firm for legal advice on pursuing a claim against Jason. Using the Developing Paralegal Skills feature, Defining the Issues to Be Researched on page 178, create a checklist for defining the research issues for the case of Ana v. Jason.

Answer: The research issues are as follows: • Parties: Who are the people involved in the action or lawsuit?

• Places and things: Where did the events take place, and what items are involved in the action or lawsuit?

• Basis of action or issue: What is the legal claim or issue involved in the action or lawsuit?

• Defenses: What legal justification might Jason have for ransacking Ana’s home?

• Relief sought: What is the legal remedy or penalty sought in the case?

Additional issues to be researched include: • Can Ana recover damages for a ransacked home?

• If, so, on what legal theory?

• Is a ransacked home the result of a tort? If so, which tort or torts were committed?

• What are the damages that are required to recover for the intentional tort of property damage?

A paralegal’s research goals would be to first find binding case law, preferably on point and on all fours. If the paralegal cannot find binding case law, then he or she should look for persuasive case law.

4. Ms. Consumer bought a weight-loss tea, advertised as “the dieter’s secret weapon,” that guaranteed weight loss of seventeen pounds and sixteen percent of body fat in just twelve weeks without diet or exercise. This offer was appealing because Ms. Consumer’s job and family commitments left her with no time to exercise. In addition, her doctor was concerned about her cholesterol and blood sugar levels and told her she needed to lose twenty-five pounds. Ms. Consumer learned about the product, Healthtea, on a national TV show. While being interviewed, the owner of the company claimed that his product was backed by a clinical study. Ms. Consumer decided to purchase the required minimum six-month supply at a cost of one-hundred dollars a month. After using the tea for six months, Ms. Consumer had lost only three pounds.

She seeks legal counsel because she feels she was taken advantage of and wants to prevent Healthtea from continuing to make false claims. She would also like to get her money back, but that is not her primary concern. The federal government and many states have laws and agencies that protect consumers from unfair and deceptive business practices. In this assignment you will review a secondary source pertaining to consumer protection laws and government agencies to see how they could help Ms. Consumer. a. Begin by analyzing the facts. Make a list of relevant legal terms to look up in an index. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

70

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

b. Select a secondary legal resource—such as American Jurisprudence or Corpus Juris Secundum—to use in your research. Record the name of the source. Consult the general index volumes. c. List the index topics from the general index volumes under which you found relevant information. (If you have difficulty locating relevant information, try checking the topic indexes in the individual volumes.) Many primary and secondary sources have tables of abbreviations near the front of the book that you should consult about the meaning of abbreviations. d. Look up these citations in the individual volumes of the secondary sources to find an answer to Ms. Consumer’s legal issues. According to the secondary source, what rights does Ms. Consumer have against Healthtea? What action(s) can Ms. Consumer take to stop Healthtea from selling its product? Can Ms. Consumer recover any money? e. List the citations to the volumes, topics, and sections where you found the possible answers. Be sure to check the pocket part for the most current citations if you use printed resources.

Answer: This assignment can be performed individually by students online using Westlaw or Lexis, or by students in the law library. Students find it helpful to perform a directed research assignment the first time that they actually do legal research. It takes much of the fear and frustration out of legal research. If it will be assigned online, it is recommended that Chapters 7 and 8 be covered together and that this assignment be done after Chapter 8, Online Research, is covered. Groups can be created in Blackboard Collaborate (and possibly other Learning Management Systems) to allow students to work together in answering questions. Students could also do the work individually, and then take turns presenting the answers live online using video-conferencing technology. Some revision in the Questions a-e above will need to be made to accommodate online legal research. Having students research individual databases in Westlaw or Lexis for legal encyclopedias, and then statutes and case law in Questions 5 and 6 below, is recommended, instead of running a search through secondary sources, cases and statutes all at once, because of the overwhelming search results.

Note to Instructor: It takes some advance preparation to do a group research project. Reviewing the assignment prior to doing it with the class is recommended the first time that library research is assigned. If locating state-specific answers is assigned, the instructor will need to research and prepare the answer as answers are only provided for the Federal Trade Commission Act. a. Am. Jur. 2d relevant legal search terms include: • Unfair/Deceptive business practices/Unfair trade practices • Consumer protection • Advertising/False advertising/False advertising of food products • Fraud © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

71

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

• •

Food and Drug Administration Federal Trade Commission

C.J.S. relevant legal search terms include: • Unfair Trade Practices • Unfair Competition • Advertising/False Advertising • Consumer Protection • Drugs • Food • Fraud • Food and Drug Administration • Federal Trade Commission Westlaw relevant legal search terms include: • Weight loss Products • False Advertising of weight loss products b. Students will use one of these sources: CJS, Am. Jur. 2d. American Law Reports may be added if a third source is necessary. c. Am. Jur. 2d Topic: Monopolies C.J.S. Topics: Credit Reporting Agencies and Consumer Protection Trademarks, Tradenames and Unfair Competition d-e. American Jurisprudence hard copy The Federal Trade Commission Act makes unfair or deceptive acts or practices illegal. The prohibitions on unfair or deceptive acts or practices in the Federal Trade Commission Act apply to both labels and advertisements, including the false labeling of food. False advertising is defined as an advertisement that is misleading in a material respect. 54 Am. Jur. 2d Monopolies § 1106, 1116, 1119.

False advertising of a weight loss program using a drug for weight loss, even though the advertisement did not mention the drug, but which induced the purchase of the program, was covered by the FTC Act and was subject to regulation by the FTC. 54 Am. Jur. 2d Monopolies §1122.

Individuals do not have a right of action under the FTC Act. A complaint or request for Federal Trade Commission action may be submitted via the FTC's webbased complaint site (https:// www.ftccomplaintassistant.gov/); by a telephone call to 1-877-FTC-HELP (1- 877-382-4357); or by a signed statement setting forth the alleged violation of law with such supporting information as is available, and the © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

72

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

name and address of the person or persons complained of, filed with the Office of the Secretary in conformity with applicable regulation. Anyone may request an FTC investigation, but the agency acts only in the public interest and will not get involved in private controversies that do not negatively affect the public. 54 Am. Jur. 2d Monopolies §§ 1178, 1179, 2015 cumulative supplement.

Since the FTC has jurisdiction over false advertising claims involving food and drugs, Ms. Consumer could file a complaint with the FTC by going on the FTC’s website, calling the FTC or submitting a signed statement to the Agency.

The FTC has the authority to issue cease and desist orders. Monopolies §1210.

And, while generally a proceeding under the provision of the Federal Trade Commission Act dealing with unfair methods of competition is sufficient to protect the public, the FTC may apply for an injunction in a district court to enjoin the dissemination of an advertisement whenever the FTC has reason to believe that such dissemination would violate the Act's prohibitions against false advertising.

54 Am. Jur. 2d Monopolies §1116.

Additionally, the Federal Trade Commission Act establishes criminal penalties for violations of its prohibitions against false advertising. The FTC must certify the facts regarding false advertising to the Attorney General, whose duty it is to bring appropriate enforcement proceedings. 54 Am. Jur. 2d Monopolies §1125.

The FTC has jurisdiction to bring suit against those who violate any rule respecting unfair or deceptive acts (or who violate cease and desist orders) seeking civil remedies, including damages and equitable relief, to redress injury to consumers. Damages in the amount of the profits made can be awarded and provided as redress to the consumers. 54 Am. Jur. 2d Monopolies §1221.

Ms. Consumer might be able to prevent Healthtea from continuing to sell its product if the FTC files a complaint against the company and issues a cease and desist order. She might receive “redress” in some amount of money, if the FTC seeks damages in the amount of lost profits against Healthtea.

NOTE TO INSTRUCTOR: The FDA and the FTC work together under an agreement dividing responsibilities between them: for dietary supplements the FDA is primarily responsible for product labeling, including package inserts and other promotional materials distributed when the product is sold. The FTC has primary responsibility for claims in advertising, including print and broadcast ads, Internet marketing, infomercials, catalogs, and similar direct marketing materials. See: Cause of Action for False Advertising of Vitamins and Other Dietary Supplements Under the Federal Trade Commission Act, Williams, 68 COA 2d 467 (2015) citing: FTC v.

National Urological Group, 645 F.Supp. 2nd 1167 (N.D Ga. 2008).

Corpus Juris Secundum, hardcopy The Federal Trade Commission Act declares that unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

73

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

commerce, are unlawful. 21 C.J.S. Credit Reporting Agencies § 43. The Federal Trade Commission Act provides that “it is unlawful . . .to disseminate, or cause to be disseminated, any false advertisement for the purpose of inducing, or which is likely to induce, directly or indirectly the purchase of food, drugs, devices, services, or cosmetics.” The Act also provides that dissemination of any false advertisement is an unfair or deceptive act. 21 C.J.S. Credit Reporting Agencies § 65; 87 C.J.S. Trademarks, Tradenames and Unfair Competition § 400.

Advertisements' claims that coral calcium dietary supplement was a successful treatment for cancer, multiple sclerosis, and other degenerative diseases by rendering acidic bodies more alkaline, and that organic supplement cured cancer and caused weight loss by rendering acidic bodies more alkaline, were not adequately substantiated, and thus constituted unfair or deceptive advertisements in violation of Federal Trade Commission Act (FTCA); F.T.C. v. Direct Marketing Concepts, Inc., 624 F.3d 1 (1st Cir. 2010), 21 C.J.S. Credit Reporting Agencies § 43 (2012 & 2015 Supp.)

The FTC Act empowers and directs the Federal Trade Commission (FTC) to prevent people and businesses, with specified exceptions, from using unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce. Whenever the FTC has reason to believe that any person, partnership, or corporation has been or is using any unfair method of competition or unfair or deceptive act or practice, and if it appears to the FTC that a proceeding by it would be in the interest of the public, it is required to issue a complaint stating its charges and containing 30 days' notice of a hearing. After holding a hearing, if the FTC is of the opinion that the act or practice is prohibited, it will issue an order requiring such to cease and desist from using the act or practice. 21 C.J.S. Credit Reporting Agencies § 43.

The FTC Act further provides that the Federal Trade Commission (FTC) may bring suit in a district court of the United States or in the United States court of any Territory, to enjoin the dissemination of such an advertisement, whenever the FTC has reason to believe that the dissemination of any advertisement in violation of a specified provision of the Act and that the enjoining thereof pending the issuance of a complaint by the FTC, and until such complaint is dismissed by the FTC or set aside by the court on review, or the order of the FTC to cease and desist made thereon has become final, would be to the interest of the public. 21 C.J.S. Credit Reporting Agencies § 65.

Individuals do not have a right of action under the FTC Act, and “The Federal Trade Commission has wide discretion in the choice of a remedy or order,” where a violation of the act is disclosed; 87 C.J.S. Trademarks §§393, 405.

Ms. Consumer would not have a right to bring an action under the Lanham Act, because it provides a private remedy to commercial plaintiffs who can prove that their commercial interests have been harmed by a competitor’s false advertising, because she is not a commercial plaintiff. 87 C.J.S. Trademarks §309. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

74

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

American Law Reports, Hardcopy Bruce I. McDonald, What Constitutes “False Advertising” of Drugs or Devices within §§ 5 and 12 of the Federal Trade Commission Act(15 USCS §§ 45, 52), 49 ALR Fed 16 (1980 and Supp. 2015).

5. After you have analyzed the facts of Ms. Consumer’s legal dilemma, made a list of legally and factually relevant terms, and reviewed a secondary source as described in the preceding question, can you find a citation to the federal law governing this topic?

If so, locate the volume needed in the federal statutes. If not, use an index to an annotated version of the federal statutes in order to look up the relevant terms that will help you locate the statute volume. Then do the following: a. Go to the volume of the statute containing the cited sections and read those sections. Have you located any additional information in the statute to help resolve Ms. Consumer’s legal problem? b. Does your research on relevant federal statutes lead you to the same conclusions you arrived at by using the secondary source? If not, how did your results differ?

Under what topics did you look in each phase of your research?

Answer: Students should notice the USCA cites in the footnotes included in the legal encyclopedias found in the answers to Question Number 4 above. They may need assistance in recognizing these cites as they are new researchers, so this should be encouraged by the instructor. The Federal Trade Commission Act is found at 15 USCA §§ 41 et seq. See the end of the answer for the relevant sections that students should locate.

If students consult the index to the federal statutes (USCA or USCS), terms that students looked up should include Federal Trade Commission and then under this heading look for false advertising, advertisements, cease and desist, food, injunctions, jurisdiction, Proceedings-unfair practices, process, relief, refund, unfair practicesrestitution. a. The answers may vary by students’ level/depth of research and investigation.

Students who did very complete research in the legal encyclopedias (especially in Am. Jur. 2d which provides an exhaustive section on false advertising and then additional sections on FTC process and remedies available) will likely answer no, they have not found additional information to help them solve Ms. Consumer’s problem. Students whose depth of research was minimal (or who used CJS, which does not provide the depth of treatment found in Am. Jur. 2d and the answer is found over two volumes in CJS) will likely answer yes. b. Again, this answer will vary by depth of research and source used.

The Federal Trade Commission Act bans unfair or deceptive trade acts or practices in 15 USCA §45(a). The prohibitions on unfair or deceptive acts or practices in the Federal Trade Commission Act applying to both labels and

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

75

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

advertisements, including the false labeling of food, is found in 15 USCA §52(a)(1).

The definition of false advertising is found in 15 USCA §55(a)(1).

The procedure for filing a complaint with the FTC is found in: 16 C.F.R. § 2.2(a), as revised November 9, 2012.

The FTC’s authority to impose criminal penalties is found in 15 USCA §54.

The FTC has the authority to issue cease and desist orders as stated in 15 U.S.C.A. § 45(b). Its authority to issue injunctions can be found in 15 USCA §53(a) and (b). The Agency’s authority to bring suit for damages is found in 15 USCA §57b(a)(1) and (a)(1) and 57b(b).

6. Using the annotated version of the federal statutes, look for relevant case law annotations on Ms. Consumer’s legal problem in the notes of decisions following the relevant statutory section. If there is not an annotated version of the federal statutes in your library, if no cases appear there, or if you want to learn to use another source, use a federal digest. Once you find relevant case annotations, you will want to locate the cases that interpret the statute and are as similar to Ms. Consumer’s situation as possible. a. Write down the citations to no more than three relevant cases. Now look up those cases in the case reporters. b. Read through the summary and headnotes of each case. Do the cases still appear to be relevant? If not, go back to the annotated statute or digest and look for more relevant cases. c. What did you find? Did the courts’ application of the statute change your answer to the legal problem facing Ms. Consumer? d. How would you update the case law that you located to make sure that it was still current law?

Answer: a. The purpose of this exercise is to get students into the case annotations and then to review the cases in the reporters. There are numerous cases listed in the case notes of decision following the statute sections, so answers may vary. A few cases are listed here: 15 USCA §45 Notes of Decision # 308-Weight Loss 1. Carlay Co. v. Federal Trade Commission, 153 F.2d 493 (7th Cir. 1946) 2. Federal Trade Com'n v. SlimAmerica, Inc., 77 F.Supp.2d 1263 (S.D.Fla.1999) 3. Sterling Drug, Inc. v. FTC,741 F2d 1489 (9th Cir. 1984) 4. F.T.C. v. Bronson Partners LLC, 564 F.Supp.2d 119 (D.Conn.2008) b. Answers will vary. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

76

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

7. If you concluded that Ms. Consumer should pursue a state law remedy, research the answer to Ms. Consumer’s problem in your state’s law. Provide the citations to the relevant state statute sections and no more than three cases explaining Ms. Consumer’s legal rights and the action she should take under state law to prevent Healthtea from selling its product. Based on your findings, is Ms. Consumer likely to recover any money?

Answer: Answers will vary. [return to top]

Group Project This project will involve creating a case brief of the Kurtz-Ahlers, LLC v. Bank of America, N.A. case in Exhibit 7.7. Student one will write the facts section of the case brief. Student two will write the procedure section of the case brief. Student three will write the issues and answers section and the holding. Student four will write the reasoning section. The group members will then compare the brief that they have prepared to the sample case brief in Exhibit 7.9 and will critique their brief by making a list of the differences between their case brief and the sample case brief.

Answer: Students’ answers will vary. While student answers should contain the same information found in the sample case brief in Exhibit 7.9, the sample brief should not be copied and pasted into students’ work. [return to top]

Video Questions Watch the “Patenting Human Genes” video clip and read the information about the case found below. Then, answer the following questions.

The video involves the United States Supreme Court decision in the case, Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (2013), in which patients, medical researchers and medical organizations, among others, brought suit against the U.S. Patent Office and Myriad Genetics challenging a patent issued under the Patent Act on genes that showed that a woman was at higher risk for breast and ovarian cancer. The right to patent inventions originates in Article 1, Section 8 of the United States Constitution, but it is not challenged in the Myriad case.

In its unanimous decision in Myriad, 133 S.Ct. 2107, 2116, the Supreme Court quotes the Patent Act: “Whoever invents or discovers any new and useful composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U.S.C. § 101. The Court notes that it has “long held that this provision contains an important implicit exception: Laws of nature,

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

77

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

natural phenomena, and abstract ideas are not patentable.” The Court then cites the cases Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. ––––, 132 S.Ct. 1289, 182 L.Ed.2d 321 (2012), and Diamond v. Chakrabarty, 447 U.S. 303, 309, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980), in support of this rule.

1. Assume that you are assigned by your supervising attorney to research the issue of whether human genes may be patented, to answer this question for a client. Patent law is an area with which you are unfamiliar. Using the material in Chapter 7, how would you begin your research? What source would you use?

Answer: To begin research in an area with which you are unfamiliar, you start by doing background research using legal encyclopedias, Words and Phrases, or an online source such as Findlaw.com or Justia.com, as your source.

2. Using the material in Chapter 7 on the preliminary steps in researching case law, what preliminary steps would you take to find case law on this legal issue? What type of cases would you look for?

Answer: You would start by defining the legal issue to research, which often involves reviewing the facts of a client’s case. Second, you would determine your research goals, which would be to find case law that is on point and binding authority, which both support and negate the client’s position. If you do not find case law that is on point and binding authority, you might need to include persuasive authority as well.

3. As you are performing your research, you locate the Myriad decision. If your client’s facts and the outcome desired were similar to those in the Myriad decision (i.e., the legal issue is the same), what type of case law precedent would the Myriad opinion be?

Where in the hierarchy of the federal courts would the Myriad decision fall? Would Myriad be binding precedent?

Answer: If the facts and the outcome of the client’s case were similar to the Myriad decision, it would at least be on point because it involves similar facts and legal issues.

If the parties, facts, issues, and remedies sought were all the same, the Myriad case would be on all fours with the client’s case. Because the Myriad case is from the U.S. Supreme Court, which is at the top of the hierarchy of the federal court system, Myriad would be binding precedent.

4. If you had not yet located the Myriad case in the course of your research, which sources would you consult to find relevant case law on this issue?

Answer: Sources consulted to find relevant case law include legal encyclopedias, online sources such as Findlaw and Justia, case digests, American Law Reports, and possibly other secondary sources such as treatises, hornbooks, restatements of the law, and legal periodicals.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

78

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 7: Legal Research and Analysis

5. In which case reporters would you find the Myriad opinion? Which are the official and unofficial reporters? What is a parallel citation? Describe the citation format for the Myriad case and include the various parts of a case citation. Would you need additional information?

Answer: The Myriad opinion is a U.S. Supreme Court decision, so it is found in the United States Reports, the Supreme Court Reporter, and the Lawyer’s Edition of the Supreme Court Reports. The U.S. Reports is the official reporter and the S.Ct. Reporter and the Lawyer’s Edition are the unofficial reporters. When a court opinion appears in more than one reporter for the same court, the citations are parallel.

The citation for the Myriad case would include the case name, the volume number and reporter abbreviation for the U.S. Reports, and the page number that the case begins on, for the Bluebook format. Because the U.S. Reports can take years to be issued, and since other jurisdictions include the parallel citations to the other reporters for proper citation to U.S. Supreme Court decisions, the example given in the textbook uses the parallel citations for the U.S. Supreme Court citation. This would be followed by the year of the decision in parentheses. To completely cite the case using the format in the textbook, you would need the additional citation information to the U.S. Reports and the Lawyer’s Edition. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

79

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 8: Online Legal Research

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 8: Online Legal Research

Table of Contents Answers to the End-of-Chapter Questions ................................................................................ 80 Questions for Review .............................................................................................................................. 80 Ethics Question...................................................................................................................................... 882 Practice Questions and Assignments..................................................................................................... 882 Group Project .......................................................................................................................................... 84

Answers to the End-of-Chapter Questions Questions for Review 1. What questions should you ask yourself before going online to perform legal research?

Answer: With so much information at your fingertips, often the most important problem is winnowing it down to what is really useful. Before starting a project, ask yourself the following questions: What sources are needed? Are they online?

Are they available elsewhere? Either way, what is the cost? How much time is needed to produce results?

2. List five free legal resources that can be accessed via the Internet.

Answer: Five free legal resources that can be accessed via the Internet include: 1. FindLaw. 2. Justia.

3. The Legal Information Institute (LII) at Cornell University Law School.

4. Washlaw.edu 5. Google Scholar.

3. What kinds of legal resources can be accessed at various government sites?

Answer: For the federal government, there are links to the branches of the federal government and federal government agencies; to the Code of Federal Regulations, the Congressional Record, the Federal Register, all bills as well as summaries of bills introduced in Congress, the United States Code, and other government publications; to daily congressional digests, the Law Library of Congress, and the status of a bill before Congress; to representatives’ roll-call votes in the U.S. House of Representatives, the congressional schedule, current debates on the House floor,

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

80

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 8: Online Legal Research

and websites of representatives. Also, the Virtual Reference Desk on the U.S. Senate website contains Senate procedures explained via web links arranged according to topic and the Senators’ roll-call votes, information about recent legislative activity, and links to the websites of senators. U.S. Supreme Court decisions can be found on the U.S. Supreme Court website, and lower federal court decisions can be found on PACER. Information on the Equal Employment Opportunity Commission, its regulations and enforcement related to employment discrimination, along with patent, trademark and copyright information, and information for public companies including the Security and Exchange Commission’s regulations, filing and enforcement actions can be found at the U.S. Equal Employment Opportunity Commission website. .

4. What is KeyCite? How can Westlaw be used to stay current on the law? Does Lexis have an online citator? Describe two ways in which you can search databases on Lexis and Westlaw.

Answer: Westlaw allows a user to update the law through the use of the KeyCite citator service. Lexis allows a user to update the law through the use of Shepard’s online. Both Lexis and Westlaw allow users to search databases with queries using “natural language” or “terms and connectors.”

5. List and briefly describe the two dominant fee-based online legal research database services. Do the same for the alternative online legal research databases.

Answer: The two dominant fee-based online legal research data services are Westlaw and Lexis.

They provide users with access to an extensive collection of legal, business, and other resources. Using these services, paralegals can access specific documents, update the law, and search hundreds of databases.

Alternative online legal research databases include: •

•

Bloomberg Law: Offers primary legal content, court dockets, legal filings, and reports just like Westlaw and Lexis, though also provides unique content such as the popular Bureau of National Affairs (BNA) Law reports.

PACER: An easy-to-use Internet service that allows users to obtain court cases and docket information from federal appeals, district, and bankruptcy courts.

•

Fastcase: Provides access to all Supreme Court decisions, federal appeals decisions back to 1924, and federal district court decisions back to 1932, and bankruptcy court decisions from 1950. All federal and state statutes, constitutions, and administrative codes are included. It also includes state supreme courts and appeals courts back to 1950. Its “BadLawBot” provides red flags for possible bad law.

•

Casemaker: Similar to Fastcase in legal materials provided and is also

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

81

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 8: Online Legal Research

•

provided by many state bar associations to their members. In some states, it provides state-specific documents, such as opinions of attorneys general, jury instructions, links to court forms, local federal rules, and other helpful materials.

VersusLaw: Low-cost service that includes Supreme Court and U.S. courts of appeals cases and current federal district court cases, as well as state appellate court cases and cases of some specialized courts; also has a higher-level subscription plan that includes the U.S. Code and the Code of Federal Regulations and provides added search features. It has limited access to documents that are not in the public domain.

[return to top]

Ethics Question Tony is doing research for his supervising attorney to include in a brief that has to be filed with the court of appeals by 5 P.M. today. He finds a case that is on point and provides the exact support needed for their argument. In his haste to summarize the case and get it into the brief, Tony fails to update the case using Shepard’s or KeyCite. As a result, he does not inform the attorney that the case was reversed on appeal and is no longer good law. What ethical rule has Tony violated? What impact might Tony’s neglect have on the client’s case? On Tony’s supervising attorney?

Answer: By failing to update the case law using a citation service such as KeyCite or Shepard’s, Tony has violated the ethical rule of competence. Also, Tony’s supervising attorney may have violated the rule of adequate supervision. Tony’s neglect may impact the client’s case because the brief may be disregarded by the court of appeals if the cited case is no longer good law. This could also have a negative impact on Tony’s supervising attorney, if the client files a grievance against him with the state bar association or sues him for legal malpractice. Should either of these events occur, Tony may lose his job. [return to top]

Practice Questions and Assignments 1. Go to usa.gov and locate the website for the Federal Trade Commission (FTC). Click on the link to the FTC site. Answer the following questions: a. What is the URL for the Federal Trade Commission? b. Where would you go to file an online complaint with the FTC about a weight-loss product? Paste the Web link to the complaint form into your assignment. c. To file a complaint about a weight-loss product, what category would you choose? Does the FTC website provide information on what consumers can expect once a consumer complaint has been filed? © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

82

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 8: Online Legal Research

Answer: a. https://www.ftc.gov/ b. To the FTC Complaint Assistant at https://www.ftccomplaintassistant.gov/ Company#crnt. c. Rip-offs and Imposter Scams. Yes. The first step of the FTC Complaint Assistant is a brief explanation of the actions that the FTC will take.

2. If you did the research assignment in the Chapter 7 Practice Questions and Assignments, Question 6 or 7, Shepardize one of the cases that you found, using Shepard’s in print. Is the case still good law, or has it been reversed or overruled?

How can you tell? How many citing cases are there? If you have access to Westlaw, Lexis, or any of the alternative legal research sites, update the same case using one of the online sources. Print out the results. Explain the differences between Shepard’s in print and online versions.

Answer: Students’ answers will vary.

3. Do a Google Scholar search for tobacco products manufacturers’ liability when cancer results from the use of their products. How many items did your search retrieve? How many cases were found on the first two pages? How many articles?

Print the first two pages of your results to submit to your instructor.

Answer: Students’ answers will vary.

4. You are working as a paralegal for a probate and estate planning law firm. One of the firm’s clients died and now you have to locate all of the heirs. One is a 28year-old nephew, whose last known address is a college dorm, according to the records that you have. This nephew was orphaned at the age of 17 when his parents died in a car accident, so there are no close relatives to help you find him.

You reach an aunt who tells you that she believes the nephew is in graduate school in Chicago. Using the material on finding people, which websites would you use in your search to locate the missing nephew? If the free websites do not return any contact information for him, would you use fee-based sites? If so, which ones would you consult?

Answer: Students’ answers will vary, but they should make reference to some of the sites suggested in the text: • • •

Broad searches: general search engines, whitepages.com, superpages.com, Zabasearch.com.

Narrow searches: LinkedIn.com, other social media sites.

Specialty search tools: www.gisearch.com, politicalmoney.com.

If the supervising attorney authorized the use of a fee-based website, one of the following sites could be used: www.ussearch.com, www.knowx.com, veris.info.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

83

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 8: Online Legal Research

5. Visit the Martindale-Hubbell website (martindale.com). Search for an attorney in yor city who does personal injury law. How many results did you find?

Answer: Answers will vary. [return to top]

Group Project This project has students investigate the alternative legal research databases. Students one, two, and three will go online and find information about what state and federal case and statutory law databases, forms databases, citators, and other services are offered by Casemaker, VersusLaw, and Fastcase. Each student should write a summary of what is offered and describe the strengths and weaknesses of doing research with each one. Student four will collect and organize the summaries and submit them to the instructor.

Answer: Students’ answers will vary. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

84

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 9: Legal Writing: Form and Substance

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 9: Legal Writing: Form and Substance

Table of Contents Answers to the End-of-Chapter Questions ................................................................................ 85 Questions for Review .............................................................................................................................. 85 Ethics Question........................................................................................................................................ 87 Practice Questions and Assignments....................................................................................................... 88 Group Project .......................................................................................................................................... 93

Answers to the End-of-Chapter Questions Questions for Review 1. What are the three things you should consider when receiving a legal writing assignment?

Answer: Before undertaking a legal writing assignment, a paralegal should understand the nature of the assignment, when it needs to be completed, and what kind of writing approach it calls for.

2. Why is it important for paralegals to have good writing skills? What is the active voice? What is the passive voice? Why is it better to use the active voice in your legal writing?

Answer: Good writing skills are essential for preparing legal documents. The active voice sets up the subject-verb-object (e.g., “the defendant stole the diamond”) sentence structure, whereas the passive voice uses the object-verb-subject format (e.g., “the diamond was stolen by the defendant”). The active voice should be used because it makes sentences more concise and easier to understand. Use the passive voice to avoid referring to something inappropriate that your client may have done. For example, if your firm represents a defendant who has been accused of stealing a car, you may consider saying that “the car was stolen” instead of that “the defendant allegedly stole the car.”

3. List the components of a typical legal letter. What are the four types of letters discussed in this chapter? What is each letter’s purpose?

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

85

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 9: Legal Writing: Form and Substance

Answer: The components of a typical legal letter are: • • • •

Date.

Method of delivery and address block.

Reference line and salutation.

Body, closing, and signature.

The four types of legal letters discussed in this chapter are: •

•

•

•

Informative letters: The purpose of an informative letter is to convey information to another party, whether it is to a client, another attorney, witnesses, or other people involved in trials.

Confirmation letters: The purpose of a confirmation letter is to summarize conversations that have already occurred. By providing attorneys with permanent records of earlier conversations, confirmation letters safeguard against any misinterpretation or misunderstanding of what was said.

Opinion letters: The purpose of an opinion letter—also called an advisory letter—is to provide not only information but also advice, giving a legal opinion about a matter discussed. This is why an opinion letter must always be signed by an attorney.

Demand letters: The purpose of a demand letter is to explain the party’s legal position in a dispute, and to demand that the recipient take some action.

4. How is a legal memorandum organized? List and describe its components.

What is the IRAC method? How is IRAC used in a legal memorandum?

Answer: A legal memorandum is made up of the following components: •

•

•

•

•

Heading: contains the date on which the memo is submitted, the name of the person for whom the memo was prepared, the name of the person submitting the memo, and a brief description of the matter, usually in the form of a reference line.

Questions Presented: a section that identifies the main legal issues that will be discussed in the memorandum; each question should identify the governing law, briefly identify the issue, and explain the most important facts for that issue.

Brief Answers: section that responds to questions presented, giving a thumbnail sketch of the discussion section, which will examine the issue in greater detail.

Statement of Facts: provides a factual background for the reader, focusing primarily on the facts that are relevant to the legal issues discussed in the rest of the memo.

Discussion: section that presents the writer’s detailed analysis of how the law applies to the facts; it should explicitly summarize both the research and the

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

86

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 9: Legal Writing: Form and Substance

•

analysis, candidly evaluating both the strengths and weaknesses of the client’s position.

Conclusion: presents the author’s opinion of how to resolve the issues; it may acknowledge that research into a particular area bore little fruit, or it may inform the attorney that more facts are needed or suggest that a certain issue needs to be explored more fully; this is the section where the paralegal can make strategic suggestions and recommend specific courses of action.

5. Should a memorandum be objective or persuasive? Why or why not?

Answer: The legal memorandum is prepared for internal use within a law firm, legal department, or other organization. Generally, this type of memo presents a thorough analysis of one or more specific legal issues, but it should be objective throughout because the memo’s purpose is to help an attorney represent or advise a client.

6. Should documents submitted to the court be objective or persuasive? Why or why not?

Answer: Yes, a document submitted to a court should typically be persuasive because it is submitted to advocate on behalf of a client. [return to top]

Ethics Question A lawyer filed a badly drafted complaint with a court. After giving the lawyer an additional opportunity to correct and refile it, the court dismissed the complaint with prejudice (meaning that the complaint cannot be revised and refiled a second time).

One sentence in the complaint contained 345 words, and more than 20 other sentences contained over 100 words and were unintelligible. On appeal, the appellate court affirmed dismissal of the complaint with prejudice, issued an order to show cause to the attorney instructing him to explain to the court why he should not be barred from practicing law before the court, and directed the court clerk to send its opinion to the state ethics board. What ethics rules did the attorney violate? Would it make a difference if the attorney’s writing problems were caused by a serious illness?

Answer: The ABA's Model Rules of Professional Conduct require that a lawyer perform his or her duties with competence (Rule 1.1), and the lawyer in question clearly violated these rules. Furthermore, according to Model Rule 1.16(a)(2), the lawyer in question should have withdrawn from the case before filing and refiling the complaint, and thus he committed an additional violation of ethical rules. If the attorney was in the unfortunate situation of being ill, he should have withdrawn from the case. [return to top] © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

87

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 9: Legal Writing: Form and Substance

Practice Questions and Assignments 1. Proofread the following paragraph, circling all of the mistakes. Then rewrite the paragraph.

The defendent was aressted and chrge with drunk driving. Blood alcohol level of .15. He refused to take a breahalyzer test at first. After the police explained to him that he would loose his lisense if he did not take it, he concented. He also has ablood test to verify the results of the breathalyzer.

Answer: The words that should be circled are italicized below: The defendent was aressted and chrge with drunk driving. Blood alcohol level of .15.

He refused to take a breahalyzer test at first. After the police explained to him that he would loose his lisense if he did not take it, he concented. He also has ablood test to verify the results of the breathalyzer.

The paragraph should be rewritten as follows: The defendant was arrested and charged with drunk driving. The defendant’s bloodalcohol level was .15. He refused to take a breathalyzer test at first. After the police explained to him that he would lose his license if he did not take it, he consented. He also had a blood test to verify the results of the breathalyzer.

2. Prepare an informative letter to a client using the following facts: The client, Dr. Brown, is being sued for medical malpractice and is going to be deposed on January 15, 2022, at 1:00 P.M. The deposition will take place at the law offices of Callaghan & Young. The law office address is 151 East Jefferson Avenue, Cincinnati, Ohio. Ask Dr. Brown to call you to set up an appointment, so that you and your supervising attorney, Jeffrey Brilliant, can prepare Dr. Brown for the deposition.

Answer: The following is a sample informative letter: Jeffers, Gilmore, & Dunn 553 Fifth Avenue Suite 101 Nita City, MI 48801 (616) 555-9690 January 1, 2022 Dr. David Brown 123 Park Place Cincinnati, OH 00000 RE: Brown Medical Malpractice Litigation © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

88

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 9: Legal Writing: Form and Substance

Dear Dr. Brown: Your deposition in the above-referenced matter will take place on January 15, 2022 at 1:00 P.M. at the law offices of Callaghan & Young. Their offices are located at 151 East Jefferson Avenue, Cincinnati, Ohio.

Please call our offices at your earliest convenience to set up an appointment to prepare for the deposition.

Sincerely, (Insert Student’s Name) Paralegal 3. Summarize the following hypothetical by applying the IRAC method: Mr. Damien is a teacher at the Wabash Academy, a private boarding school. He has a twenty-one-year-old son, Dave, with bipolar affective disorder, formerly called manic depression, a mood disorder. While visiting Mr. Damien, Dave has repeatedly threatened members of the school community. On one occasion, Dave abducted the headmaster’s sixteen-year-old daughter and attempted to have her admitted to a psychiatric hospital. Dave also made threatening phone calls to the headmaster. In one call, he claimed to have drained several quarts of his own blood from his body because he was not permitted to communicate with the headmaster’s daughter. Mr. and Mrs. Damien refuse to prevent their son from visiting their home on the school’s campus. As a result, the school has fired Mr. Damien. He claims that the termination of his employment violates the Americans with Disabilities Act (ADA) of 1990. The ADA prohibits an employer from discriminating against a person because he or she is related to a person with disabilities. Under case law interpreting the ADA, however, employment is not protected if a disabled relative poses a direct threat to the health and safety of others.

Answer: 1. Identify the issue.

Can Mr. Damien be terminated solely on the basis that his son, who has significant mental problems, has committed misconduct on campus?

2. State the governing rule, which may come from statutory provisions, cases on point, or administrative agency regulations.

Under the Americans with Disabilities Act in an employer may not discriminate against a person because he or she is related to a person with disabilities.

However, employment is not protected if a disabled relative poses a direct threat to the health and safety of others.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

89

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 9: Legal Writing: Form and Substance

3. Apply the rule to the facts of the client’s case.

The client’s son has abducted a minor and attempted to have her admitted to a psychiatric hospital. He also made threatening phone calls to the father of the minor, including claiming that he had drained several quarts of blood from his body because he was not allowed to communicate with the minor.

4. State your conclusion.

The ADA does not help Mr. Damien contest his termination because his disabled son posed a direct threat to the health and safety of others.

4. If you did the research required by the Practice Questions and Assignments at the end of Chapter 7, prepare a legal memorandum summarizing Ms. Consumer’s legal problem and her options for resolution. Be sure to use the IRAC method and include the statutory provisions and cases on point from your research.

Answer: MEMORANDUM OF LAW DATE: Today’s Date TO: Professor FROM: Student

RE: Ms. Consumer’s Healthtea Claim File No. 21-12345

STATEMENT OF FACTS Ms. Consumer purchased Healthtea, advertised as “The dieter’s secret weapon” that guaranteed weight loss of 17 pounds and 16 percent of body fat in just 12 weeks, without diet or exercise. She learned about it through an advertisement on national television. Ms. Consumer purchased the required minimum six-month supply at $100 a month. After six months she had only lost three pounds. She wants to prevent Healthtea from continuing to make false claims. She would also like to get her money back, but that is not her primary concern.

QUESTIONS PRESENTED 1. Can Ms. Consumer prevent Healthtea from making false claims about the weight loss benefits of Healthtea?

2. Can Ms. Consumer get her money back? © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

90

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 9: Legal Writing: Form and Substance

BRIEF ANSWERS 1. Possibly.

2. Maybe, but not likely.

DISCUSSION Can Ms. Consumer prevent Healthtea from making false claims about the weight loss benefits of Healthtea?

While there may be relevant state consumer law which could affect Ms. Consumer’s outcome, this memorandum addresses the outcome available under federal law through the Federal Trade Commission. The Federal Trade Commission Act 15 USCA § 45 et seq., makes unfair or deceptive acts or practices illegal. 15 USCA § 45 (a)(1). It applies to the purchase of food or drugs. 15 USCA §52 (a)(2). Weight-loss programs and products have been held to be subject to the Federal Trade Commission’s regulation for false advertising. See FTC v. Simeon Management, 532 F.2d 708 (9th Cir. 1976); Federal Trade Com'n v. SlimAmerica, Inc.,77 F.Supp.2d 1263 (S.D.Fla.1999).

Since the Federal Trade Commission Act applies to the purchase of food or drugs, and specifically to weight loss programs and products which have been falsely advertised, Healthtea is subject to the Federal Trade Commission Act. False advertising is defined as an advertisement that is misleading in a material respect. 15 USCA § 55(a)(1). The Federal Trade Commission found that an advertiser’s claims for weight-loss products, including claims that the products caused rapid and substantial weight loss without the need to reduce caloric intake or increase physical activity, were false and misleading under the Federal Trade Commission Act. F.T.C. v.

Bronson Partners, LLC, 564 F.Supp.2d 119 (D.Conn. 2008). Healthtea was likewise misleading in a material respect because Ms. Consumer only lost three pounds, not 17 pounds or 16 percent of her body fat without diet or exercise, over 12 weeks. As a result, it should be found to have been falsely advertised under the Federal Trade Commission Act. The Federal Trade Commission has the authority to issue cease and desist orders pursuant to 15 USCA §45(b). While a proceeding under the provision of the Federal Trade Commission Act dealing with unfair methods of competition is usually sufficient to protect the public, the Federal Trade Commission may apply for an injunction in a district court to enjoin the dissemination of an advertisement whenever it has reason to believe that an advertisement would violate the Act's prohibitions against false advertising. 15 USCA §45(b). In Federal Trade Com'n v. SlimAmerica, Inc., 77 F.Supp.2d 1263 (S.D.Fla.1999), the Court granted a permanent injunction and return of all proceeds of the sale of its weight loss products that advertised significant weight loss without the need to diet or exercise. Ms. Consumer bought a weight-loss product that advertised significant weight loss without the need to diet or exercise and lost

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

91

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 9: Legal Writing: Form and Substance

only three pounds, not the guaranteed 17 pounds. If the Federal Trade Commission finds that this was false, it could enter a cease and desist order, or seek an injunction and damages. So, it is possible that Ms. Consumer may stop the sale of Healthtea, if she can convince the Federal Trade Commission to take action in the Healthtea matter.

Can Ms. Consumer get her money back?

However, getting her money back (barring a state law remedy) is another matter.

Individuals do not have a right of action under the Federal Trade Commission Act, so individuals may not file a lawsuit under the Act. A complaint or request for Federal Trade Commission action may be submitted on the Federal Trade Commission's website, or by a signed statement containing the alleged violation of law accompanied by supporting information. Anyone may request a Federal Trade Commission investigation, but the agency acts only in the public interest and does not get involved in private controversies not having a negative effect on the public. 54 Am. Jur. 2d, Monopolies §§ 1178, 1179 (Supp. 2015). In order to prevent Healthtea from continuing its false advertising, Ms. Consumer will need to convince the Federal Trade Commission that her experience with Healthtea affects the public and is not a private controversy. Since individuals may not file lawsuits under the Federal Trade Commission Act, that makes it less likely that she will recover the money that she paid to Healthtea by filing a complaint with the Federal Trade Commission.

The Federal Trade Commission does, however, have wide discretion in the choice of a remedy or order. It typically reimburses all of the consumers who were the victims of false advertising, with money it receives as damages, when it collects damages. The amount is not necessarily what the consumer paid for the product. 87 C.J.S., Trademarks §§393, 405. If damages were collected from Healthtea, it is uncertain how much of the $600.00 that Ms. Consumer paid to Healthtea would be returned to her, if any.

CONCLUSION Ms. Consumer can make a claim under the Federal Trade Commission Act by filing a complaint on the agency’s website. Assuming that the Federal Trade Commission takes action on her claim, Healthtea’s false advertisements and sales will most likely be stopped via a cease and desist order, or an injunction. If the Federal Trade Commission recovers damages, or if there is a state court remedy that Ms. Consumer wants to pursue, she might get some, or all of her money back. Alternatively, our firm may be able to recover the $600 for her by sending a demand letter to the company if the Federal Trade Commission does not pursue her claim against Healthtea and if she does not receive any money from the Federal Trade Commission.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

92

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 9: Legal Writing: Form and Substance

[return to top]

Group Project In this assignment, students will document the benefits of using plain English in legal writing. To complete the assignment, refer to the Securities and Exchange Commission’s A Plain English Handbook at sec.gov/pdf/handbook.pdf. (If you do not know what the Securities and Exchange Commission does, do an Internet search before doing this assignment.)

• Student one will review the preface and describe the “unoriginal but useful” writing tip given by the author.

• Student two will review Chapter 1 of the handbook and write a definition of a plain English document.

• Student three will provide two pairs of “before” and “after” examples from Chapter 6 of the handbook showing how plain English improved sentences in SEC disclosure documents.

• Student four will summarize the information found by students one, two, and three, using their examples to describe the benefits of using plain English in legal documents.

Answer: Students’ answers will vary. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

93

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 10: Civil Litigation: Before the Trial

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 10: Civil Litigation: Before the Trial

Table of Contents Answers to the End-of-Chapter Questions ................................................................................ 94 Questions for Review .............................................................................................................................. 94 Ethics Question........................................................................................................................................ 97 Practice Questions and Assignments....................................................................................................... 97 Group Project ........................................................................................................................................ 104 Video Questions .................................................................................................................................... 104

Answers to the End-of-Chapter Questions Questions for Review 1. What rules govern civil trials in federal court? Who are the parties to a lawsuit?

Answer: The Federal Rules of Civil Procedure (FRCP) govern trials in federal court.

The parties to the lawsuit are the plaintiff(s), who brings the lawsuit and the defendant(s), who are sued.

2. Describe what takes place during the initial client interview. Who conducts this interview, the attorney or the paralegal? Why? Answer: The attorney normally conducts the initial interview with the client to determine what the client’s legal problems may be and to decide if the attorney will represent the client. The reason the attorney conducts the interview is that the attorney will most likely advise the client of his or her legal rights, set legal fees, and ask the client to sign a retainer agreement during the interview. Since these activities are considered to be the practice of law, a nonlawyer assistant may not conduct the interview. Typically, however, the paralegal is present at the initial interview to become familiar with the client’s legal issues and to make arrangements for a follow-up interview.

3. Describe the pleadings in a civil lawsuit. How does each type of pleading affect the litigation? If a defendant fails to respond to the plaintiff’s complaint within a specified time period, what can happen?

Answer: The complaint and answer constitute the pleadings in a lawsuit. The effect of the complaint on the litigation is that it initiates the lawsuit and informs the defendant of the claims that the plaintiff is making against the defendant. The effect © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

94

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 10: Civil Litigation: Before the Trial

of the answer is to provide the defendant’s response to the plaintiff’s complaint, to notify the plaintiff of his or her defenses, to make counterclaims against the plaintiff, to make cross-claims against other defendants, and to add new defendants through the use of the third-party complaint. If the defendant fails to respond within the time established by the jurisdiction, the plaintiff can ask the court to enter a default judgment against the defendant. The defendant will then be liable for all damages the plaintiff is claiming and loses the opportunity to defend against the claim in court.

4. What is service of process? What are the methods of serving a complaint on a defendant in a federal court lawsuit? What happens if the defendant is not properly served?

Answer: Service of process is the delivery of the summons and complaint to the defendant, thus notifying the defendant that a lawsuit has been filed against him or her. It is important because the court cannot exercise jurisdiction over the defendant without proof that the defendant was notified of the lawsuit. The proof is provided by a return-of-service form similar to the one found in Exhibit 10.4 in the chapter.

5. When does discovery take place, and what does it involve? List three traditional discovery devices that can be used to obtain information prior to trial. Is electronic evidence discoverable?

Answer: Discovery is the process of obtaining information from the opposing party or from other witnesses once a lawsuit has been filed. It takes place after the pleadings have been filed and ends before the trial begins. Three discovery devices are interrogatories, depositions, and requests to admit. The FRCP and state rules specifically allow discovery of “electronic data compilations” such as e-mails, voicemail, social media entries, and so on.

6. What is the duty to disclose under FRCP 26? What happens if there is a failure to disclose?

Answer: Each party has a duty to disclose to the other party specified types of information prior to the discovery stage of litigation. Under FRCP Rule 26(f), once a lawsuit is brought, the parties (the plaintiff and defendant and/or their attorneys) must schedule a pre-discovery meeting to discuss the nature of the lawsuit, any defenses that may be raised against the claims being brought, and possibilities for promptly settling or otherwise resolving the dispute. The meeting should take place as soon as practicable.

Either at this meeting or within ten days after it, the parties must also make the initial disclosures related to witnesses, and other evidence such as documents and data, along with a computation of damages claimed and copies of insurance policies covering injuries alleged and submit to the court a plan for discovery. As the trial date approaches, the attorneys must make subsequent disclosures relating to witnesses,

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

95

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 10: Civil Litigation: Before the Trial

documents, and other relevant information.

•

The duty to disclose under FRCP 26 has made discovery of certain types of information mandatory and automatic, has shortened the amount of time for disclosing discoverable information, and has added serious penalties for failing to comply with discovery rules. FRCP (c) makes clear that the failure to make initial disclosures can result in serious sanctions. If a party fails to make required disclosures, that party will not be able to use the information as evidence at trial. In addition, the court may impose other sanctions, such as ordering the party to pay reasonable expenses, including attorneys’ fees, created by the failure to disclose.

7. What is risk control? Why is it important?

Answer: Risk control refers to the measures used to identify, preserve, and organize electronic documents. Errors can lead to fines or other penalties. When records are not well monitored, open access to electronic media is more likely to be allowed by a court.

8. What pretrial motions are discussed in this chapter? What is the purpose of each motion?

Answer: Several motions can be made before trial. They are: •

•

•

•

•

Motion to Dismiss: This is a motion filed by the defendant in which the defendant asks the court to dismiss the case for a specified reason; a plaintiff would file a motion to dismiss against a counterclaim or cross-claim.

Motion to Strike: This is a motion filed by a party in which the party asks the court to strike (delete) material from another party’s filing; these motions help to clarify the underlying issues by removing paragraphs that are redundant or irrelevant to the action.

Motion to Make More Definite and Certain: This is a motion filed by the defendant to compel the plaintiff to clarify the basis of the plaintiff’s cause of action; this motion is filed when the defendant believes that the complaint is too vague or ambiguous for the defendant to respond to it in a meaningful way; a plaintiff might file such a motion about a counterclaim or cross-claim.

Motion to Compel Discovery: This is a motion that may be filed by either party in which one party asks the court to compel the other party to comply with a discovery request; if a party refuses to allow the opponent to inspect and copy certain documents, for example, the party requesting the documents may make a motion to compel production of the documents.

Motion for Judgment on the Pleadings: After all pleadings have been filed, either party may file this motion; it may be used when there are no facts in dispute, only a question of how the law will apply to the undisputed facts.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

96

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 10: Civil Litigation: Before the Trial

•

Motion for Summary Judgment: This is a motion that may be filed by either party in which the party asks the court to enter judgment in his or her favor without a trial; the motion for summary judgment can be supported by evidence outside the pleadings, such as witnesses’ affidavits, answers to interrogatories, and other evidence obtained prior to or during discovery.

[return to top]

Ethics Question A client who is suing her employer for employment discrimination calls paralegal DeShawn from her employer-issued smartphone to discuss her case against her employer. Later, the client e-mails documents that may be used as evidence in her upcoming trial to DeShawn from her office computer. What ethical issues do the client’s actions raise? What are DeShawn’s ethical obligations in this situation? The law firm’s obligations?

Answer: The client’s actions raise ethical issues concerning the rule of client confidentiality. Because employers have the right to access electronic devices that they supply to their employees, DeShawn’s supervising attorney has an ethical obligation to instruct the client not to use her employer-issued cell phone or e-mail to contact DeShawn or anyone in the law firm about her case against her employer. If DeShawn receives phone calls from the client after these instructions have been given, she needs to ask the client where she is calling from and if it is from the employer-issued cell phone, then DeShawn should instruct the client to call her back from another phone that does not belong to the employer. The same admonishments should be issued if they receive e-mail through the employer’s e-mail account. Not doing so could lead to a grievance being filed against the attorney as well as a potential legal malpractice suit, if the client were to lose the case because of a breach of client confidentiality, resulting from evidence obtained by the employer from the employer-issued cell phone or e-mail account. [return to top]

Practice Questions and Assignments 1. Assume that you work for attorney Tara Jolans of Adams & Tate, 1000 Town Center, Suite 500, White Tower, Michigan, 49600. Jolans has decided to represent Sandra Nelson in her lawsuit against David Namisch. Based on the following information and the material in the chapter, draft a complaint to be filed in the U.S. District Court for the Eastern District of Michigan.

Sandra Nelson is a plaintiff in a lawsuit resulting from an automobile accident. Sandra was turning left at a traffic light at the intersection of Jefferson and Mack Streets, while the left-turn arrow was green, when she was hit from the side by © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

97

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 10: Civil Litigation: Before the Trial

a 2014 Toyota Camry driven by David Namisch, who failed to stop at the light. The accident occurred on Friday, June 3, 2021, at 11:30 P.M. David lives in New York, was visiting his family in Michigan, and just prior to the accident had been out drinking with his brothers. Several witnesses saw the accident. One of the witnesses called the police.

Sandra was not wearing her seat belt at the time of the accident, and she was thrown against the windshield, sustaining massive head injuries. When the police and ambulance arrived, they did not think that she would make it to the hospital alive, but she survived. She wants to claim damages of $500,000 for medical expenses, $65,000 for lost wages, and $55,000 for property damage to her Mercedes. The accident was reported in the local newspaper, complete with photographs.

Answer: The following is a sample complaint.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SANDRA NELSON Plaintiff, )

) Civil Action, Case Number: 11-00000 ) Docket No. 11-

WH

) ) ) DAVID NAMISCH Defendant.

COMPLAINT AND DEMAND FOR JURY TRIAL

) ) )

JURISDICTIONAL ALLEGATIONS 1. That Plaintiff, Sandra Nelson, resides in the City of White Tower, County of White Tower, State of Michigan.

2. That Defendant, David Namisch, is a resident of the City of New York, County of New York, State of New York.

3. That the cause of action arose in the City of White Tower, County of White Tower, State of Michigan.

4. That the amount in controversy exceeds $75,000.00 and Plaintiff is entitled to relief based on Diversity of Citizenship under 28 U.S.C. 1332.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

98

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 10: Civil Litigation: Before the Trial

GENERAL ALLEGATIONS 5. That on June 3, 2021, at approximately 11:30 P.M., the Plaintiff, Sandra Nelson, was exercising reasonable care on Jefferson Avenue in White Tower, Michigan, when a vehicle driven by the Defendant, David Namisch, collided with the Plaintiff’s vehicle. The collision occurred as the Defendant, David Namisch, failed to stop at a stoplight and collided with the Plaintiff, Sandra Nelson.

6. That the Defendant, David Namisch, owed the Plaintiff, Sandra Nelson, the following duties of care: A. Duty not to drive in an intoxicated condition.

B. Duty to stop at the stoplight at the intersection of Jefferson and Mack Streets.

C. Duty not to drive his motor vehicle in a reckless, careless, or heedless manner with willful and wanton disregard for the safety and rights of others.

7. That the Defendant, David Namisch, breached each of the above duties and violated the following statutes of the State of Michigan: A. That he was guilty of driving while intoxicated and reckless driving within the state meaning of Section 257.625 of the State of Michigan.

B. That he was guilty of careless and negligent driving within the meaning of Section 257.626b of the State of Michigan.

8. That the collision occurred during the summer, and the weather conditions were clear.

9. That at the time of the collision, the Plaintiff, Sandra Nelson, was a generally healthy female.

10. That as a result of the collision, the Plaintiff, Sandra Nelson, suffered severe physical injuries, which prevented her from working and caused property damage to her vehicle. The costs that the Plaintiff, Sandra Nelson, incurred as a result of the collision included $500,000 in medical bills, $65,000 in lost wages, and $55,000 in automobile-repair costs.

11. That the injuries sustained by the Plaintiff as a result of the collision were solely caused by the negligence of the Defendant, David Namisch.

WHEREFORE, the Plaintiff prays for the following relief: A. That the Plaintiff be awarded appropriate compensatory damages; B. That the Plaintiff be awarded an amount deemed fair and just by a Jury to compensate the Plaintiff for damages sustained as presented by the evidence in this case; C. That the Plaintiff be awarded such other further relief as the Court deems proper. Plaintiff Sandra Nelson claims judgment against the Defendant in an amount in excess of $75,000 in actual, compensatory, and exemplary damages together with attorneys’ fees, court costs, and other costs as provided by law.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

99

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 10: Civil Litigation: Before the Trial

Adams & Tate

Date:

Tara Jolans Attorney for Plaintiff 1000 Town Center, Suite 500 White Tower, Michigan 49600 Sandra Namisch, being first duly sworn, states that she has read the foregoing Complaint by her subscribed and that she knows the contents thereof, and the same is true, except those matters therein stated to be upon information and belief, and as to those matters, she believes to be true.

Sandra Nelson, plaintiff Sworn and subscribed before me this

day of

,

Notary Public, White Tower County, State of Michigan My Commission Expires: DEMAND FOR A JURY TRIAL The Plaintiff demands a trial by jury. Date:

Adams & Tate

Tara Jolans Attorney for Plaintiff 1000 Town Center, Suite 500 White Tower, Michigan 49600 2. Using Exhibit 10.3, A Summons in a Civil Action, on page 284, draft a summons to accompany the complaint against David Namisch. David’s address is 1000 Main Street, Apartment 63, New York, NY 10009. The court clerk’s name is David T. Brown.

Answer: The following is a sample summons.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

100

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 10: Civil Litigation: Before the Trial

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SANDRA NELSON ) Plaintiff, ) Civil Action, Case Number: 11-00000 ) Docket No. 11WH ) ) ) Summons DAVID NAMISCH ) Defendant. ) ) To: David Namisch 1000 Main Street #63 New York, NY 10009 You are hereby summoned and required to serve upon Tara Jolans, Adams & Tate, plaintiff’s attorney, whose address is 1000 Town Center, Suite 500, White Tower, Michigan 49600, an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service.

If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.

CLERK

DATE

BY DEPUTY CLERK 3. Review Exhibit 10.7, Sample Interrogatories. Draft the first ten questions for a set of interrogatories to be directed to the plaintiff, Sandra Nelson, based on the facts given in Question 1 above. How do the interrogatories for Sandra Nelson differ from those in the sample?

Answer: The following is a sample of the first ten interrogatories that could be directed to the plaintiff, Sandra Nelson.

1. Were you the driver of an automobile involved in an accident with the defendant on June 3, 2021, at about 11:30 P.M. at the intersection of Jefferson and Mack Streets? If so, please state the following: a. Your name; b. Every name you have used in the past; c. The dates you used each name; © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

101

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 10: Civil Litigation: Before the Trial

d. The date and place of your birth.

2. Please list your current residence and all residences you occupied in the five years preceding your move to your current residence, including complete addresses, dates of residence, and names of owners or managers.

3. Please indicate where you are presently employed and where you were employed during the five years preceding the beginning of your current employment. In so doing, please indicate the following: a. The names, addresses, and telephone numbers of each employer or place of business, including the dates during which you worked there; b. How many hours you worked, on average, per week; c. The names, addresses, and telephone numbers of your supervisors (or owners of the business); d. The nature of the work that you performed.

4. Please give all relevant information with respect to your driver’s license that you had on the date of the accident, including the following: a. The state of issuance and the number of your license; b. The type and date of issuance as well as its expiration date; c. Any violations, offenses, or restrictions that were recorded against your license.

5. Indicate whether you have ever had your driver’s license suspended, revoked, or canceled, and whether you have ever been denied the issuance of a driver’s license for mental or physical reasons. If you have, please indicate the date and state of such occurrence as well as the reasons for it.

6. Do you have normal vision without the use of glasses or contact lenses? If your answer is in the negative, please indicate the following: a. The date on which glasses or contact lenses were prescribed and the name and address of the prescriber; b. The date and complete address of the business from which they were purchased; c. The present location of the glasses or contact lenses; d. Whether or not you were wearing the glasses or contact lenses at the time of the accident.

7. Do you have normal hearing without the use of a hearing aid? If your answer is in the negative, please indicate the following: a. The date on which the hearing aid was prescribed and the name and address of the prescriber; b. The date and complete address of the business from which it was purchased; c. The present location of the hearing aid; d. Whether or not you were wearing the hearing aid at the time of the accident.

8. When is the last time you had your vision checked within the last five years?

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

102

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 10: Civil Litigation: Before the Trial

9. If you have had your vision checked, please indicate the following: a. The date and reason for the vision examination; b. The name, address, and telephone number of the examiner; c. The results and/or action taken.

10. When is the last time you had your hearing checked within the last five years? Students’ answers will vary as to the differences in their questions and those in the book.

4. In an employment discrimination lawsuit, the plaintiff printed over 400 e-mails related to her discrimination claim. Her former employer produced only 120 e-mail messages in response to a discovery request for e-mails between management and human resources. The employer claimed that additional e-mails were stored on backup tapes and would be extremely costly to produce. What would the judge consider in determining whether to order the employer to produce additional e-mails?

Answer: FRCP 3 7 (c) makes clear that the failure to make initial disclosures can result in serious sanctions. If a party fails to make required disclosures, that party will not be able to use the information as evidence at trial. In addition, the court may impose other sanctions, such as ordering the party to pay reasonable expenses, including attorneys’ fees, created by the failure to disclose. If compliance with the discovery order would be too burdensome or costly, the judge could either limit the scope of the request or shift some or all of the costs to the requesting party.

5. Open a saved Word document. Find the Properties tab and open it. The document properties contain the document’s metadata. Find and write down the document’s author, creation date, date last revised, and the name of the person who revised it.

What is one way in which metadata could be used in a trial?

Answer: If it is relevant, metadata about important documents or electronic discovery such as e-mail can include important aspects such as stores location, creation dates and times, information, and so on. It could be introduced if relevant to prove the case or as part of a motion endeavoring to seek additional discovery.

The metadata can be useful to track down missing documents in possession of opposing counsel. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

103

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 10: Civil Litigation: Before the Trial

Group Project This project addresses the issue of the discoverability of social networking information.

Student one will do an Internet search on whether information on social networking sites is discoverable. Student two will assume it is discoverable, and will research who has to provide it—the user of a social networking account, or the social networking site itself. Student three will research whether penalties apply if the postings on a social networking site are removed (known as spoliation of evidence) after a lawsuit begins.

If the information is removed, is the removal permanent? Student four will present the group’s findings in a one-page paper.

Answer: Students’ answers will vary. In general, they should locate two cases: EEOC v.

Simply Storage Management and Crispin v. Christian Audigier, Inc. The rule resulting from these two cases is that discovery requests need to be directed to the social networking user/litigant, because the social networking site, such as Facebook, is protected by the Stored Communications Act of 1986 from most civil discovery requests. Additionally, just because a Facebook page is marked as private by its user does not make it not discoverable. For additional information, see the article entitled “How Discoverable Is Information on Facebook?” posted on December 23, 2010, by Troutman Sanders, LLP, at www.informationintersection.com. A 2018 ABA Journal article, “Not all Social Media Photos are Subject to Discovery, But Some May Be” discusses the 2018 NY State Appellate Court decision in Forman v. Henkin, holding that while some Facebook materials are private, private materials can be subject to discovery if relevant. Likewise, a January 7, 2019 article on JD Supra at https://www.jdsupra.com/legalnews/case-law-summaryare-private-facebook-40709/ discusses the Forman v. Henkin case. [return to top]

Video Questions Watch the “Anheuser Busch Settles False Advertising Lawsuit out of Court” video clip and answer the questions below.

1. Go to https://www.law.cornell.edu/wex and look up the definition of a class action lawsuit. Provide a fifty to seventy-five word definition of one. Why do you think that a class action was used in this case?

Answer: A class action is a procedural device that permits one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group, or "class." Put simply, the device allows courts to manage lawsuits that would otherwise be unmanageable if each class member (individuals who have suffered the same wrong at the hands of the defendant) were required to be joined in the lawsuit as a named plaintiff. See

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

104

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 10: Civil Litigation: Before the Trial

Hansberry v. Lee, 311 U.S. 32, 41, 61 S.Ct. 115, 118 (1940). (Definition from https://www.law.cornell.edu/wex/class_action located on August 5, 2015.)

A class action was used in this case because there were a large of number of people who had been wronged by Anheuser Busch and it was easier for the court to manage the case if all of the plaintiffs were joined in the same case.

2. What phase of a civil lawsuit is involved in the case in the video clip?

Answer: A pretrial settlement is the phase of the civil lawsuit in the video clip.

3. What are the terms of the agreement reached to settle the lawsuit in the video clip?

Answer: The terms of the settlement are: Refunds are available to customers for up to $50 with receipts, and are limited to $12 without receipts. A website will be created so claims may be filed electronically.

• The three original plaintiffs will get up to $5,000 each.

• Anheuser Busch with pay up to $3.5 million in legal fees and Anheuser Busch denies any wrongdoing.

4. Given the terms of the agreement, who do you think will benefit the most from this lawsuit? Do you think this is a fair outcome? Why or why not?

•

Answer: Most likely, the lawyers will benefit the most because they will make $3.5 million in fees, while the customers will get anywhere from $12 to $50 to $5,000 (and only three plaintiffs will get $5,000), depending on who they are and if they have receipts. Student opinion will vary as to whether or not this is a fair outcome.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

105

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 11: Conducting Interviews and Investigations

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 11: Conducting Interviews and Investigations

Table of Contents Answers to the End-of-Chapter Questions .............................................................................. 106 Questions for Review ............................................................................................................................ 106 Ethics Question...................................................................................................................................... 110 Practice Questions and Assignments..................................................................................................... 111 Group Project ........................................................................................................................................ 114 Video Questions .................................................................................................................................... 114

Answers to the End-of-Chapter Questions Questions for Review 1. What types of questions described in the chapter can be used in an interview? Explain when you would use each type.

Answer: The different types of questions that can be used in an interview include the following: Open-ended questions: These are questions phrased in such a way that they elicit a relatively detailed discussion of an experience or event. They can be used when the interviewer wants to give the interviewee an opportunity to talk at some length about a subject. Open-ended questions are also useful when interviewing clients or friendly witnesses.

• Closed-ended questions: These are questions that are phrased in such a way that they elicit a simple “yes” or “no” answer. Closed-ended questions can be used if an interviewee tends to digress frequently from the topic being discussed, or they may be used to relax an interviewee in preparation for more difficult questions that will follow later in the interview. Also, closedended questions may help to elicit information from adverse witnesses who are reluctant to volunteer information.

• Hypothetical questions: These are questions based on hypothesis, conjecture, or fiction. Interviewers sometimes use hypothetical questions to observe how an interviewee might handle a difficult situation. Hypothetical questions are frequently used with expert witnesses.

• Leading questions: These are questions that suggest, or “lead to,” a desired •

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

106

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 11: Conducting Interviews and Investigations

answer.

Interviewers may use leading questions to elicit responses from witnesses who otherwise would not be forthcoming. Leading questions are effective for drawing information out of adverse witnesses and others who are reluctant to disclose information. Leading questions should be used cautiously with clients and friendly witnesses because they may lead to distorted answers.

2. What types of interviews are described in this chapter? What is the purpose of each? What is the paralegal’s role in each interview?

Answer: Interviewing of both clients and witnesses is discussed in this chapter. The chapter addresses three types of client interviews: • Initial client interview: The purpose of the initial client interview is to gain information from the client regarding his or her claim or legal issue. During an initial client interview, the client explains his or her legal problem so that the attorney can advise the client on possible legal options and the fees that may be involved. Also, the client and the attorney will agree on the terms of representation, if the attorney decides to take the case. Although the attorney normally conducts the initial client interview, the paralegal often attends. The paralegal’s role is to observe the client, take notes on what the client is saying, provide the client with forms and statements explaining the firm’s fees, and provide the client with other prepared information. After the interview, the paralegal and the attorney compare their impressions of the client and what the client said during the interview. Paralegals should ensure that if the supervising attorney does not indicate the paralegal’s nonattorney status to the client, then the paralegal does so.

• Subsequent client interviews: Paralegals often are asked to conduct additional interviews with clients whose cases have been accepted, usually for the purpose of obtaining further information from the client. When scheduling the interview, the paralegal should tell the client what kinds of documents or other data he or she should bring to the interview. During this interview, it is important that the paralegal clearly state that he or she is not an attorney and cannot give legal advice. This will protect the paralegal against potential claims that he or she has engaged in the unauthorized practice of law. The paralegal then collects additional information and/or evidence from the client.

• Informational interview: The purpose of this type of interview is to discuss upcoming legal proceedings with the client. At these meetings, paralegals often explain legal procedures to clients, explain why certain proceedings are necessary, and identify the client’s role in the proceedings. At this time, the paralegal also helps to prepare clients for the trial experience by suggesting what the client should expect at trial, how the client should dress, how the © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

107

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 11: Conducting Interviews and Investigations

client should conduct him- or herself, and where the client should look when he or she testifies.

Following an interview, the paralegal prepares a memo to the supervising attorney relating what the witness said during the interview and asking if the attorney wants a formal witness statement prepared. The formal witness statement identifies the witness, discloses what was discovered during the interview, and is signed by the witness.

The paralegal also should check the witnesses’ qualifications (competence, credibility, bias).

3. List the various types of witnesses discussed in the chapter. Describe the type of testimony each witness would give. Do any of these categories overlap—that is, could one witness fall into more than one of the categories?

Explain.

Answer: The following is a list of the various types of witnesses and the type of testimony each witness might provide.

•

•

•

•

•

Expert witnesses are individuals who have professional training, advanced knowledge, or substantial experience in a specialized area, such as medicine, computer technology, ballistics, or construction techniques.

These witnesses are often used in cases involving medical malpractice and product liability to establish the duty, or standard of care, that the defendant owed to the plaintiff.

Lay witnesses are individuals who do not possess any particular skill or expertise relating to the matter before the court. They are people who happened to observe or otherwise have factual knowledge about an event.

These witnesses are used to testify about matters that do not require an expert, such as a car accident that the individual saw.

Eyewitnesses are lay witnesses who witnessed an event and who may testify in a court of law as to what they observed. The term eyewitness is deceiving; perhaps a better term would be “sense” witness, because although an eyewitness may have firsthand knowledge of an event, this knowledge need not have been derived from the sense of sight. For example, an eyewitness may be someone who listened in on a telephone conversation.

Friendly witnesses are witnesses to an event who may be the client’s family, friends, co-workers, neighbors, or other persons who know the client and want to be helpful in volunteering information. These witnesses are lay witnesses and are used to testify to events that they have observed.

Hostile witnesses are witnesses who may be prejudiced against the client or friendly to the client’s adversary. These adverse lay witnesses are more frequently called by the opponent to testify to events that they have observed.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

108

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 11: Conducting Interviews and Investigations

These types of witnesses can overlap. For example, eyewitnesses can be friendly or hostile and lay witnesses can be eyewitnesses.

4. Describe how you would locate a witness. Give five sources you would consult.

Which would be the most useful? Which would be the least useful? Explain why.

Answer: There are many sources that could be consulted in attempting to locate a witness. These include sources as basic as a telephone or city directory, locating services, and social media search engines, including services such as Spokeo and PeekYou. Other sources include: • • • • • • • • • • •

Media reports.

Court records.

Deeds to property.

Birth, marriage, and death certificates.

Voter-registration lists.

The post office.

Consumer reporting agencies.

Tax assessor’s office.

Utility companies.

Professional organizations.

Federal, state, or local governmental agencies.

The source selected and its usefulness depend on why the source is needed.

5. Define and give examples of the following types of evidence: direct evidence, circumstantial evidence, relevant evidence, authenticated evidence, and hearsay.

Answer: Direct evidence is any evidence that, if believed, establishes the truth of the fact in question. An example of direct evidence would be bullets found in the body of the shooting victim. The bullets would be direct evidence of the type of gun that fired them.

Circumstantial evidence is evidence that indicates the likelihood of the facts in existence. An example of circumstantial evidence would be the client owning the same type of gun that shot the bullets found in the victim’s body.

Relevant evidence is evidence tending to make a fact in question more or less probable than it would be without the evidence. In other words, it is the evidence that tends to prove or disprove a fact in question. An example of relevant evidence would be the evidence that the gun belonging to the client was in the home of another person when the victim was shot. It is relevant because it would tend to prove that the client did not shoot the victim.

Authenticated evidence is evidence that is relevant because it is authentic, or genuine. An example of authenticated evidence would be the evidence that proves the chain of custody of the gun that was used to shoot the victim.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

109

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 11: Conducting Interviews and Investigations

Hearsay is testimony given in court about a statement made by someone else.

Literally, it is what someone heard someone else say. An example of hearsay would be a neighbor testifying that she heard the accused talking about shooting the victim. Hearsay is generally not admissible in court when offered to prove the truth of the matter asserted. The hearsay rule provides exceptions in specific circumstances, often for statements made in situations that indicate a high degree of reliability.

6. What should be included in an investigative report?

Answer: An investigative report should start with an overall summary that thoroughly describes all of the facts that have been gathered. The second part of the report is a source-by-source summary. This is a list of information sources, including witnesses, with a summary of the facts gleaned from each of these sources. The final section of the summary should present the investigator’s overall conclusions about the investigation along with any suggestions on the development of the case. [return to top]

Ethics Question Paralegal Leah’s boss has asked her to arrange for a private investigator to place a GPS tracking device, the size of a deck of cards, on the company car of a salesperson of one of the firm’s clients. The client suspects the salesperson of playing golf instead of working and wants to investigate his whereabouts. Is it legal? Ethical? Do an Internet search to find support for your answer.

Answer: The U.S. Supreme Court held, in U.S. v. Jones, 565 US 400 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), that under the Fourth Amendment of the Constitution, placing a GPS tracker on a vehicle constitutes a search, which would require either consent or a search warrant, to be valid, when the government places a GPS tracking device on someone’s car. In many states, placing a GPS device on a car—or hiring an investigator to do the same—is widely considered legal as long as the person shares ownership of the car.

California, Texas and a few other states ban many uses of GPS trackers without consent, with exceptions for law enforcement and car owners. Similarly, in this question, the company owns the car, so it most likely can place a GPS tracker on its own vehicle to track the employee’s activities and to verify whether the salesperson is playing golf instead of working. Students’ opinions regarding whether this practice is ethical will vary.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

110

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 11: Conducting Interviews and Investigations

[return to top]

Practice Questions and Assignments 1. Review the hypothetical Baranski v. Peretto case discussed in Chapter 10. Write sample questions that you would ask when interviewing eyewitnesses to the accident. Phrase at least one question in each of the question formats discussed in this chapter.

Instructor’s note: Students should be instructed that since there is no expert witness involved in this interview, they do not need to prepare any hypothetical questions.

Answer: Sample questions for an eyewitness to the Baranski-Peretto car accident would include the following: • •

•

• • • • • •

“Please describe what you saw at the intersection of Mattis and Thirtyeighth Streets on August 4, 2022.” (Open-ended question) “Did you observe a car accident at the intersection of Mattis and Thirty-eighth Streets? Did it occur at 7:45 A.M. on August 4, 2022?” (Closed-ended questions) “Is it not true that you witnessed an auto accident at the intersection of Mattis and Thirty-eighth Streets at 7:45 A.M. on August 4, 2022?” (Leading question) “Did Tony Peretto run the stop sign at the intersection of Mattis and Thirtyeighth Streets?” (Closed-ended question) “Where was Katherine Baranski’s Ford Fusion when Tony Peretto ran the stop sign?” (Open-ended question) “From where did you observe the accident?” (Open-ended question) “What were the weather conditions at the time of the accident?” (Open-ended question) “Was it dark or light out at the time of the accident?” (Closed-ended question) “What did you do once the accident occurred?” (Open-ended question)

2. Using the information in this chapter on questioning skills, identify the following types of questions: a. “Did you go on a cruise in the Bahamas with a woman who was not your wife, Mr. Johnson?” b. “Isn’t it true, Mr. Johnson, that a woman other than your wife accompanied you on a cruise in the Bahamas?” c. “Mr. Johnson, describe where you were between January 10 and January 17, 2021?”

Answer: a. Closed-ended question. b. Leading question.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

111

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 11: Conducting Interviews and Investigations

c. Open-ended question.

3. Paralegal Malik is assigned to do a follow-up interview with a client to get the details about the client’s employment discrimination claim. Malik is instructed to record the interview so that the attorney, who is involved in a trial with another client, can listen to the interview later. How should Malik proceed with the client when she comes to the office for the interview? What are the advantages and disadvantages of recording a client interview?

Answer: If Malik intends to record the interview for future reference, she needs to make sure to obtain permission from the supervising attorney and from the person being interviewed before recording. Malik should keep in mind that some clients and witnesses will be less willing to disclose information freely when being recorded. If the interviewee appears hesitant, Malik should consider taking notes instead.

4. Determine whether each of the following statements is a statement of fact or a statement of opinion, and explain why: a. “I am sure that the driver was drunk because he pulled up next to me at the stoplight, then threw the car into reverse and backed a quarter of a mile down the one-way street.” b. “The driver who was arrested for drunk driving ran a stop sign, then made a Uturn so that he could enter the highway. When arrested for erratic driving, his breathalyzer reading was 0.19.”

Answer: a. Opinion—because the speaker is describing his or her impression of an event. b. Fact—because the speaker is describing what he or she saw in definite, objective terms.

5. Kirsten works as an in-house paralegal for a debt collection agency. She has been given a list of people who have defaulted on their car loans and cannot be located. Kirsten has been told by her supervising attorney to try to locate the debtors using Facebook. What should Kirsten do? Is this ethical? Is it legal? Review the Federal Trade Commission’s summary of the Fair Debt Collection Practices Act at consumer.ftc.gov/blog/facing-debt-collection-know-your-rights.

Answer: Debt collectors have developed methods to track down debtors digitally, and initiating contact through Facebook is a practice that is being used with more frequency. Locating a debtor through Facebook may be legal, if Kirsten merely looks at debtors’ Facebook pages to see if she can find contact information for the debtors on their Facebook pages because the debtor has not set their privacy settings to prevent this, or in other words has a public Facebook page. Kirsten cannot make a

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

112

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 11: Conducting Interviews and Investigations

public posting about the person’s default on their car loan on their Facebook timeline or “wall.” Doing so would violate the Fair Debt Collection Practices Act (FDCPA) because these actions would embarrass the debtor and would constitute harassing debtors and violate the debtor’s privacy. Likewise, posting a list of debtors who have defaulted on their car loans on a debt collector’s Facebook page would violate the FDCPA. Any contact Kirsten has with debtors has to honestly disclose the reason for contact and state that it is an attempt to collect a debt.

In the aftermath of the 2008 mortgage crisis, Facebook made it clear that it does not allow use of its site for debt collection, and encourages anyone with a Facebook account who is contacted by a creditor to collect a debt via it to advise Facebook, who will take it up with the creditor. Kirsten should not use Facebook Messenger to attempt to contact a debtor.

It may not be illegal to contact the debtor’s friends and family for contact information only, and only after other attempts to contact the debtor have failed. It would be illegal, however, for the debt collector to say that they are trying to collect a debt, or otherwise disclose information about the debtor’s finances. It violates the FDCPA for debt collectors to publicly identify themselves as such.

Kirsten’s assignment to locate debtors on Facebook is not illegal, so long as she does not go beyond locating and using contact information that is publicly available.

Beyond that, other actions she could take to use Facebook (or other social media sites) would likely be illegal because it would be considered harassment in violation of the FDCPA. Kirsten also needs to consider state law which may provide debtors with more protection. For example, a Florida court prohibited the practice of contacting debtors via Facebook. If Kirsten’s boss asks her to do something that is illegal, then it is not only illegal, but also unethical for Kirsten to do so. Kirsten should have a conversation with her supervising attorney about the assignment before she continues and should under no circumstances engage in illegal behavior. Kirsten is also risking having her actions reported to the state attorney general and the FTC, if she does so.

6. Assume that a witness is being questioned about statements she heard a third party say. Which of the following statements would qualify as exceptions to the hearsay rule? Identify the reason for each exception. a. The third party exclaimed, “Watch out, he’s not stopping at the red light!” b. Following a car accident, the third party apologized to the driver of the vehicle she hit, saying, “Are you all right? I am so sorry. I didn’t mean to hurt you.” c. The third party uttered just before he died, “Make sure you find Joe. He is the one who shot me. Tom didn’t have anything to do with this.” d. The third party stated, “I smell gas fumes!”

Answer: Each of these statements (a through d) may qualify as an exception to the hearsay rule. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

113

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 11: Conducting Interviews and Investigations

a. b. c. d.

Excited utterance.

State of mind.

Dying declaration.

Present sense impression.

[return to top]

Group Project Working in groups of three, role-play the initial client interview described in Chapter 10 between Katherine Baranski and the legal team—attorney Allen Gilmore and paralegal Elena Lopez. The group should work together to draft the questions that attorney Gilmore will ask during the interview. Include questions in each format discussed in the chapter. Paralegal Lopez will remind attorney Gilmore of any questions he may have missed at the end of the interview. Lopez will also take interview notes, provide the retainer agreement and release forms, and schedule the follow-up interview. Change roles if time allows.

Instructor’s note: It is helpful to assign the list of questions to ask during the interview prior to the class in which this assignment will be used to reduce the amount of class time needed for the assignment. The students playing the role of attorney Gilmore should be instructed to ask most of the questions, and students playing the role of paralegal Lopez should take notes on the intake sheet, provide the retainer agreement and release forms as necessary, and schedule the follow-up interview. [return to top]

Video Questions Watch the “Erin Brockovich 2” video clip for the chapter and answer the questions below.

1. Erin Brockovich, once an environmental paralegal, now works as a consultant on environmental cases and is investigating a water pollution case in Midland, Texas.

Explain how she and her team are investigating this case.

Answer: Erin Brockovich and her team are collecting water samples, testing the water for chromium levels, identifying (and mapping) homes with contamination, and getting filters put on their water sources to stop the residents’ exposure to the chromium.

2. According to the text, how should you plan an investigation?

Answer: Factual evidence is crucial to the outcome of a legal problem, and paralegals are often asked to conduct investigations to discover any factual evidence that supports (or contradicts) a client’s claims. Before starting an investigation, the © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

114

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 11: Conducting Interviews and Investigations

paralegal should create an investigation plan—a step-by-step list of what sources will be investigated to obtain specific types of information. The plan should note sources that need to be contacted for key information—such as police reports, medical and employment records, and insurance company records. The paralegal should discuss the plan with his or her supervising attorney before embarking on the investigation.

3. Using the material on evidence presented in the chapter, what kind of evidence are the water samples collected by Brockovich and her team? Are they relevant, authentic, circumstantial, or direct evidence?

Answer: The water samples are relevant and direct evidence.

4. What might happen if the water samples—or other evidence—were not collected and thus could not be authenticated?

Answer: Evidence that can’t be authenticated cannot be introduced at trial. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

115

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 12: Trial Procedures

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 12: Trial Procedures

Table of Contents Answers to the End-of-Chapter Questions .............................................................................. 117 Questions for Review ............................................................................................................................ 117 Ethics Question...................................................................................................................................... 120 Practice Questions and Assignments..................................................................................................... 120 Group Project ........................................................................................................................................ 123 Video Questions .................................................................................................................................... 123

Answers to the End-of-Chapter Questions Questions for Review 1. What role does the paralegal play in pretrial preparation of witnesses, exhibits, and displays for trial? How are the trial notebooks prepared?

Answer: The paralegal typically is responsible for ensuring that witnesses are available in court on the day of the trial. The paralegal must line up the witnesses who will testify by informing each witness of the trial date and the times that he or she will be expected to appear to testify and must arrange for subpoenas to be issued and served on each witness. Before the trial, the attorney and the paralegal will meet with each witness and prepare the witness by discussing the types of questions that may be asked by both sides’ attorneys. This preparation may include role-playing with the witness and a review of deposition testimony and answers to interrogatories. The legal assistant may advise the witness on trial procedures, may take the witness to the courtroom to familiarize the witness with the environment, and will advise the witness on other details (such as courtroom appearance and demeanor). The legal assistant may follow up the trial preparation with a letter to the witness.

Paralegals often prepare exhibits or displays containing photographs, diagrams, or other evidence to be presented at trial. The paralegal must make all arrangements for having the exhibits and displays prepared and delivered to the courtroom and make arrangements for any special equipment or technology that is needed to display the exhibits.

The paralegal can also assist the attorney by preparing a trial notebook. The paralegal should discuss the organization of the trial notebook with the attorney

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

117

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 12: Trial Procedures

before creating it. The notebook will contain copies of the pleadings, interrogatories, deposition transcripts and summaries, pretrial motions, exhibit lists, witness list, legal research, and any other documents or information that the attorney will need during trial. The paralegal will organize all of these materials into a notebook and create an index.

2. What are the goals of a pretrial conference? Who attends a pretrial conference?

Answer: Before trial, the attorneys for both sides meet with the trial judge in a pretrial conference to decide whether a settlement is possible or, if not, to decide how the trial will be conducted and what types of evidence will be admissible.

3. Describe the juror selection process. What is the difference between a peremptory challenge and a challenge for cause?

Answer: Jurors are selected through a process called voir dire, which involves questioning the prospective jurors to determine whether they are biased, have any connection with a party to the action, or have any connection with a prospective witness. The attorney’s role is to ask questions of the prospective jurors. The paralegal’s role is to work with the attorney to prepare the questions used during voir dire. During the jury selection process, paralegals often observe the prospective jurors as they respond to the attorney’s questions and watch for any verbal or nonverbal responses that might show bias.

The difference between a peremptory challenge and a challenge for cause is that a peremptory challenge does not require that a reason be given for excluding a juror. A challenge for cause, on the other hand, requires the attorney to state a reason for excluding a prospective juror from the jury.

4. What are the different steps or phases of a trial? List the process steps in attorneys’ questioning of witnesses. What is the difference between direct examination and cross-examination? Define “jury charge.”

Answer: The different steps or phases of a trial include: • • • • • • • • •

Pretrial conference.

Voir dire.

Opening statements.

Plaintiff’s case (including direct examination, cross-examination, recrossexamination).

Motion for a directed verdict.

Defendant’s case (including direct examination, cross-examination, recrossexamination).

Closing arguments.

Jury instructions.

Verdict and judgment.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

118

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 12: Trial Procedures

After the attorneys make their opening statements, the plaintiff’s attorney calls witnesses to testify on his or her behalf. The attorney’s questioning of these witnesses is called direct examination. Direct examination is then followed by crossexamination by the defense attorney. This is followed by redirect examination by the plaintiff’s attorney, after which the defense attorney may recross-examine the witness.

The difference between direct examination and cross-examination is that direct examination is used to elicit factual testimony from a witness on behalf of the examining attorney, and cross-examination is used to discredit the witness and is done by opposing counsel.

A jury charge consists of the judge’s instructions to the jury setting forth the rules of law that the jury must apply in reaching its decision, or verdict. Charges may also be called “jury instructions.”

5. Describe the procedure for filing an appeal. What factors does an attorney consider when deciding whether a case should be appealed? Can the jury decide matters of law?

Answer: The procedure for filing an appeal in the federal courts includes the following: • •

• • • •

The appellant files a notice of appeal with the district court that rendered the judgment.

On receipt of the notice of appeal by the clerk of the district court, the trial transcript, pleadings, and exhibits (called the record on appeal) are forwarded to the court of appeals.

The attorneys for both parties submit written briefs.

The attorneys for both parties appear before the court of appeals to make an oral argument before the judges (if oral argument is requested).

The judges decide whether to affirm, reverse, remand, or modify the trial court’s judgment.

The appellate court issues a formal written opinion, which will normally be published in a court reporter.

There are several factors to be considered by an attorney when deciding whether a case should be appealed. First, the attorney should evaluate whether it can be proven that the court erred in applying the law to the facts, in instructing the jury, or in administering the trial generally. Appellate courts rarely tamper with a trial court’s findings of fact because the judge and jury were in a better position than the appellate court to evaluate the credibility of witnesses, the nature of the evidence, and the like. The attorney will also consider the likelihood of success on appeal, as well as the cost of an appeal.

Juries cannot decide matters of law.

6. What is a writ of execution? What is a judgment creditor?

Answer: A writ of execution is an order, usually issued by the clerk of the court,

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

119

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 12: Trial Procedures

directing the sheriff to seize (take temporary ownership of) and sell the defendant’s assets. If the plaintiff wins the case and there is no appeal, then the judgment will need to be collected. When there is no insurance, or if there are insufficient funds to pay the judgment, then the judgment will be enforced by the plaintiff obtaining a writ of execution from the court. The proceeds of the sale are used to pay the damages owed, and any excess proceeds are returned to the defendant.

A judgment creditor is someone who has obtained a court judgment against a debtor. A judgment creditor, however, may not be able to obtain the full amount of the judgment because there are laws protecting debtors. These laws provide that certain property is exempt from seizure. [return to top]

Ethics Question During the course of a products liability trial, a juror consulted the website www.howstuffworks.com to better understand components in the piece of equipment involved in the case. Aaron, a paralegal for the defense attorney, overheard two jurors discussing the information as they left the jury box. The information that the juror had learned would be beneficial to the defendant, whom Aaron’s boss is defending in the case. What should Aaron do in this situation?

Answer: Aaron should immediately tell his supervising attorney about the conversation he overheard. Regardless of whether the information would benefit the defendant, the attorney needs to know about the juror’s online research, as jurors are typically instructed not to do any online research during a trial (pursuant to court rules preventing the same) because they are to decide the case based solely on the evidence presented by the attorneys trying the case. Jurors’ use of the Internet to research the case, as well as use of social media during a trial, has led to numerous mistrials and the reversal of criminal convictions by appellate courts. See, for example, Vermont v. Abdi, which can be found on the Justia website at https://law.justia.com/cases/vermont/supreme-court/2012/2010-255.html. [return to top]

Practice Questions and Assignments 1. Using the material from this chapter, identify the different phases of a trial (opening statement, direct examination, cross-examination, motion for directed verdict, closing statement, verdict) in the hypothetical situations below: a. The plaintiff’s attorney asks the witness, “Mrs. Wong, could you explain what you observed at the scene of the accident on January 17, 2021?” b. The defense attorney makes a motion saying that the plaintiff’s attorney has not offered enough evidence to support a claim against the defendant. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

120

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 12: Trial Procedures

c. The defense attorney asks the witness, “Mr. Bashara, isn’t it true that you were drinking alcohol immediately before you were involved in the car accident?” d. The plaintiff’s attorney gives her version of the facts and supporting evidence that she will use to prove her case during the trial.

Answer: a. This is an open-ended question, posed by the plaintiff’s attorney during the direct examination portion of the plaintiff’s case. b. This is a motion for a directed verdict, also called a motion for judgment as a matter of law. c. The defense attorney is cross-examining a witness for the plaintiff during the presentation of the plaintiff’s case. d. The plaintiff’s attorney is presenting the plaintiff’s case in the opening statement.

2. Using the material presented in the chapter, identify the motion that would be filed in each of the following situations: a. A plaintiff’s attorney loses a case, and she believes that her loss is due to prejudicial jury instructions given by the judge. b. The defendant’s key witness died during trial and there was no way to obtain the testimony he would have provided. As a result, key evidence was not presented, and the defendant was unable to prove his case. c. In the same case (see Question 2b above), the plaintiff’s attorney made an appropriate motion, which was not granted, and ultimately lost the lawsuit. Thus, according to the plaintiff’s attorney, the judgment was not supported by the evidence. d. The defense attorney saw the grisly photographs of an accident that the plaintiff’s attorney has in her file. The defense attorney is concerned that these photographs would unfairly prejudice a jury against the defendant during the trial.

Answers: a. Motion for judgment notwithstanding the verdict. b. Motion for judgment notwithstanding the verdict. c. Motion for new trial. d. Motion in limine.

3. During jury selection for a medical malpractice trial, three employees of the insurance company that carried the malpractice insurance for the doctor and hospital being sued were members of the jury pool. Should employees of an insurance company be allowed to serve on the jury? If not, discuss the challenges that the plaintiff’s attorney could raise to have them removed.

Answer: The plaintiff’s attorney would challenge them for cause, asserting that these jurors are biased against the client based on the fact they work for the © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

121

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 12: Trial Procedures

insurance company. The attorney must be ready to prove sufficiently to the court that the employees cannot be objective jurors in the case. Often, the judge will ask challenged jurors follow-up questions and then determine if they can likely be objective.

4. Attorney Johnson calls witness Roberta Looper to the stand to testify. When the judge asks Roberta to raise her hand to be sworn in, Roberta refuses, saying that she is an atheist and cannot swear an oath to God on the Bible. Given the material covered in previous chapters on the First Amendment, can the judge make Roberta take the oath? Can the judge refuse to let her testify? What alternative might there be for Roberta to swear to tell the truth?

Answer: Roberta cannot be compelled to take an oath on the Bible based on freedom of religious belief. Since the First Amendment is a constitutional right, the judge cannot refuse to let her testify. In such cases, the individual can affirm rather than swear.

5. Indicate what action the appellate court has taken in each hypothetical below (affirmed, modified, or reversed the trial court’s decision or remanded the case for further proceedings): a. A trial court finds for the plaintiff in the amount of $150,000 in a case in which the plaintiff slipped and fell in a grocery store. The court of appeals finds that while the plaintiff is entitled to damages, the damages awarded by the jury are excessive. The appellate court sends the case back to the trial court for reevaluation of the amount of damages awarded. b. A trial court finds that the plaintiff was slandered by the defendant. On appeal, the court of appeals finds that the trial court admitted evidence that it should not have allowed and holds that without this evidence, there was no slander. c. A trial court finds that the defendant breached a contract and owes the plaintiff $1,000,000 in damages. The defendant appeals, claiming that the damages are not supported by the evidence. The court of appeals agrees with the trial court’s decision.

Answers: a. Remand. b. Reverse. c. Affirm.

6. Using Exhibit 12.2 on page 354, draft a subpoena for a friendly witness using the following facts: Simon Kolstad, whose address is 100 Schoolcraft Road, Del Mar, California, is a witness to be subpoenaed in Sumner v. Hayes, a civil lawsuit filed in the U.S. District

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

122

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 12: Trial Procedures

Court for the Eastern District of Michigan, case number 13-123492. He is being subpoenaed by the plaintiff’s attorney, Marvin W. Green, whose office is located at 300 Penobscot Building, 705 Premier Avenue, Detroit, Michigan. Kolstad is to appear in room number 6 of the courthouse, which is located at 231 Lafayette Boulevard, Detroit, Michigan, at 2:30 P.M. on January 10, 2022.

Answer: The form on page 354 is an example of a subpoena for a friendly witness.

Students should prepare their subpoenas using this format (unless a state court subpoena form is provided) and inserting the facts from the question above. [return to top]

Group Project The group should research how a paralegal might use social media sites to find information about juror. Student one will use online sources (and library sources, if necessary) to find out what kinds of information are available online about potential jurors. Student one should summarize how this information could be used during voir dire. Students two and three will research whether investigation of this nature is ethical, and if so, under what circumstances it might become unethical. Student four will create a presentation to share the group’s results with the rest of the class.

Answer: Students’ answers will vary. [return to top]

Video Questions Watch the “Tort Reform” video clip for this chapter and answer the questions below.

1. Much civil litigation involves personal injuries. Tort reform proposals like those summarized in the video are periodically introduced at the federal and state levels.

The proposal discussed in the video clip did not become law. After watching the video clip, do you think that there should be a limit set on all types of personal-injury lawsuits? If not, why? If so, how would you set the limits?

Answer: Student answers will vary, but if students agree with tort reform, they should at least include what was mentioned in the video clip—that economic damages should be limited to three times the plaintiff’s economic losses or $250,000, whichever is higher. Some students might include pain and suffering—like the senate version—or restrict product liability suits.

Those arguing against tort reform should at least make the same argument that was made in the video clip—that Congress should not be involved in setting awards that will affect the lives of human beings, and that there is no one right formula when © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

123

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 12: Trial Procedures

it involves people’s lives. Students should also mention that tort reform makes it harder for judges to do justice in serious cases if tort reform is used to get rid of nonmeritorious lawsuits.

2. Do you think that as a society, we are overly litigious? What factors support this view?

What factors oppose it?

Answer: Student answers will vary. Factors from the video clip that students may offer to support the argument that we are an overly litigious society include: (1) the example of the lawsuit where the plaintiff won $5.1 million dollars for being exposed to women urinating in the men’s urinals (in front of the man who sued and other men) at a sports arena in San Diego, California, and (2) the McDonald’s hot coffee lawsuit also mentioned in the video. Students who oppose the argument will cite the case of the young man who contracted the AIDS virus through infected blood during surgery. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

124

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 13: Criminal Law and Procedures

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 13: Criminal Law and Procedures

Table of Contents Answers to the End-of-Chapter Questions .............................................................................. 125 Questions for Review ............................................................................................................................ 125 Ethics Question...................................................................................................................................... 129 Practice Questions and Assignments..................................................................................................... 129 Group Project ........................................................................................................................................ 133 Video Questions .................................................................................................................................... 133

Answers to the End-of-Chapter Questions Questions for Review 1. What are the key differences between civil and criminal law?

Answer: Crimes are distinguished from civil wrongs, such as torts, in several ways.

First, crimes are deemed to be offenses against society as a whole, not against a person or a group of persons. Second, whereas civil litigation involves lawsuits between private parties, criminal litigation involves the state’s prosecution of a wrongdoer. Third, crimes are defined as such by state legislatures or the federal government. Fourth, in criminal cases, the state must prove the defendant’s guilt beyond a reasonable doubt, whereas in civil cases, the plaintiff need only prove a case by a preponderance of the evidence. And finally, a criminal act need not involve a victim.

2. What two elements are required for criminal liability?

Answer: The two elements required for criminal liability are actus reus (a guilty act) and mens rea (a guilty mind).

3. What are the five traditional types of crime? What defenses can be raised against criminal liability?

Answer: The five traditional types of crime are violent crime, property crime, public order crimes, white-collar crime, and organized crime.

The defenses that can be raised against criminal liability are as follows: 1. Criminal intent is lacking.

2. Self-defense.

3. Defense of others. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

125

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 13: Criminal Law and Procedures

4. Defense of property.

5. Statutes of limitations.

6. Other defenses, such as mistaken identity, alibi, violations of procedural law (which often include constitutional safeguards).

4. What are cyber crimes? What role can social media play in these crimes? What are the factors used to determine whether social media evidence deserves privacy protection?

Answer: Cyber-crimes are crimes committed with computers and occurring in cyberspace. These are not new crimes, as such, but rather existing crimes in which the Internet is the instrument of wrongdoing. Cyber-crimes include cyber theft of data, financial crimes, identity theft, cyberstalking, and computer hacking.

Criminals use social media to research victims and organize group criminal activity. Law enforcement agencies, however, are also expanding their use of social media in solving crimes. Attorneys and paralegals are using social media to research on behalf of their clients. And finally, social media is having an impact in the courtroom, as illustrated by recent cases in which jurors accessed social media during the trial, and their actions led to a mistrial of the case.

There are several factors used to determine whether social media evidence is protected from use by prosecutors, in addition to the traditional factors of relevance and reliability: 1. Was the material protected by a password or other form of privacy protection?

2. Did the affected party have a reasonable expectation of privacy even if no password protection was applied (e.g., was the material readily accessible to outsiders)?

3. Did the police have a reasonable suspicion or probable cause to investigate the social networking site or were they simply engaged in a “fishing expedition”?

4. Is there a reason to believe the evidence is a reliable representation of what the person posted, or might it have been hacked?

5. Which constitutional amendments provide rights to a person accused of a crime, and what rights are provided? What are Miranda rights, and which amendments provide the basis for Miranda rights?

Answer: The constitutional rights of a person accused of a crime are stated in the first ten amendments to the Constitution, known as the Bill of Rights. The following amendments provide these rights: 1. The Fourth Amendment requires that no warrants for searches, seizures, or arrests may be issued without probable cause.

2. The Fifth Amendment requires due process of law, prohibits double jeopardy (trying someone twice for the same crime), and guarantees that no person shall be “compelled in any criminal case to be a witness against himself.”

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

126

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 13: Criminal Law and Procedures

3. The Sixth Amendment guarantees a speedy public trial by jury, the right to confront witnesses, and the right to a lawyer at various stages in some proceedings.

4. The Eighth Amendment prohibits excessive bail and fines and cruel and unusual punishment.

In the landmark case Miranda v. Arizona (1966), the U.S. Supreme Court established the rule that individuals who are arrested must be informed of certain constitutional rights, including their Fifth Amendment right to remain silent and their Sixth Amendment right to counsel.

6. List and explain the basic steps involved in criminal procedure from the time a crime is reported to the resolution of the case.

Answer: The basic steps involved in criminal procedure from the time a crime is reported to the resolution of the case are as follows: 1. Arrest: This occurs when police officers take a person into custody and charge that person with a crime.

2. Booking: This refers to the process of entering a suspect’s name, the offense for which the suspect is being held, and the time of arrival into the police log (computer). At the time of booking, the suspect is fingerprinted and photographed, told the reason for the arrest, and allowed to make a phone call.

3. Initial appearance: Defendants are taken before a judge or magistrate very soon after arrest. During this initial appearance, the judge makes sure that the person appearing is the person named in the complaint, informs the defendant of the charge or charges made in the complaint, and advises the defendant of the right to counsel and the right to remain silent.

4. Preliminary hearing or grand jury review: During the preliminary hearing, the magistrate or judge determines whether the evidence presented is sufficient to establish probable cause. At the federal level, and in about half of the states, a grand jury is required to make the decision as to whether a case should go to trial. The grand jury is a group of citizens called to decide whether there is probable cause to believe that the defendant committed the crime with which he or she is charged and therefore should go to trial.

5. Indictment or information issued: The information is the formal charge against the defendant and binds over the defendant for further proceedings, which usually means that the defendant is arraigned and the case proceeds to trial.

If a grand jury finds that probable cause exists, it issues an indictment against the defendant called a true bill.

6. Arraignment: At the arraignment, the defendant is informed of the charges and must respond to the charges by entering a plea. The defendant must choose one of three possible pleas: guilty, not guilty, or nolo contendere (a nocontest plea).

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

127

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 13: Criminal Law and Procedures

7. Plea bargain: Often the defendant pleads guilty to the charge or to a lesser charge that has been agreed on through plea bargaining between the prosecutor and the defendant.

8. Guilty plea or trial: Most cases that reach the arraignment are resolved by a guilty plea resulting from a plea bargain. If not, then the case goes to trial. Most felony trials are jury trials and many misdemeanor trials are bench trials. The accused is either acquitted or convicted. Upon conviction, the judge sets the case for sentencing. Everyone convicted has a right to appeal.

9. Sentencing: At the time of the guilty plea, or after the jury has returned a guilty verdict in a trial, the judge will give a sentence, which is the penalty imposed on anyone convicted of a crime. Often, the sentence is pronounced in a separate proceeding.

7. Explain what happens during sentencing. Describe the different types of penalties and alternatives that exist. What happens during an appeal?

Answer: When a defendant is found guilty by a trial court (or pleads guilty to an offense without a trial), the jury is dismissed and the judge will pronounce a sentence, which is the penalty imposed on the person convicted. Often, the sentence is pronounced in a separate proceeding. At the sentencing hearing, the judge usually listens to arguments from both attorneys concerning the factors in “aggravation and mitigation” (which involve why the defendant’s punishment should be harsh or lenient) of the sentence.

1.

2.

3.

4.

5.

6.

Sentences typically include one or more of the following: Incarceration in a jail or a prison.

Probation (formal or informal).

Fines or other financial penalties.

Public work service (for less serious offenses).

Classes (for certain types of offenses, such as domestic violence and alcoholor drug-related crimes).

7. Death (in some states).

8. Judges may also consider some of the following alternatives to jail time: a. House arrest with electronic monitoring device. b. Inpatient rehabilitation program. c. Short periods of custody time that might be served on weekends or in a supervised release program. d. Any combination of the above sentences or alternatives.

Persons convicted of crimes have a right of appeal. Most felony convictions are appealed to an intermediate court of appeals; in some states, however, there is no intermediate court of appeals, so the appeal goes directly to the state’s highest appellate court, usually called the state supreme court. The most common reason for reversal is that the trial court admitted improper evidence, such as evidence obtained by a search that did not meet constitutional requirements. If a conviction © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

128

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 13: Criminal Law and Procedures

is overturned on appeal, the defendant may or may not be tried again, depending on the reason for the reversal and on whether the case was reversed with or without prejudice. A decision reversed “with prejudice” means that no further action can be taken. A decision reversed “without prejudice” may be tried again. [return to top]

Ethics Question A man who is not a lawyer opens a law office and fills out a court registration form using the Social Security number, birth date, faked law school credential, and last name of a real lawyer he had obtained online. He files a lawsuit in federal court unbeknownst to the supposed plaintiffs in the case. When visited by undercover FBI agents, the man tells the agents that he would represent them for a $5,000 retainer and would charge $400 an hour. What crime did he commit? What state regulatory statute related to the practice of law was violated?

Answer: UPL or unauthorized practice of law. This is a violation of the law in any state, but the exact wording will depend on the state of the student. He has also committed identity theft and fraud. [return to top]

Practice Questions and Assignments 1. Identify each of the following crimes by its classification (infraction, misdemeanor, felony): a. Jerry refuses to put his trash out at the curb for the weekly trash pickup. Instead, he lets it collect on the side of his garage, where it is an eyesore and attracts rats to the neighborhood. The police department receives complaints from his neighbors and gives Jerry a citation for violating the trash ordinance. b. Neehan is arrested for being under the influence of drugs in public. She faces a possible jail sentence of six months. c. Susanna is arrested for forging Martha’s name on the back of a check made out to Martha and then depositing the check into her own bank account. The penalty includes confinement for over one year in prison on conviction.

Answer: a. Petty offense infraction. b. Misdemeanor. c. Felony.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

129

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 13: Criminal Law and Procedures

2. Using the material presented in the chapter on state of mind, identify the type of homicide (involuntary manslaughter, voluntary manslaughter, first- or seconddegree murder) committed in each of the following situations: a. David, while driving in an intoxicated state, crashes into another car and kills its occupants. b. David, after pulling up next to his wife at a stoplight and observing her passionately kissing another man, smashes into her car and kills her. c. David, who is angry with his boss for firing him, plans to kill his boss by smashing his car into his boss’s car, killing his boss and making it look like a car accident. David carries out his plan, kills his boss, and survives the accident.

Answer: a. Involuntary manslaughter. b. Voluntary manslaughter. c. First-degree murder.

3. Identify the following criminal procedures: a. Ani is charged with the crime of arson. She pleads not guilty and is bound over for trial in the district court. b. Reyna is taken to the police station, searched, photographed, fingerprinted, and allowed to make one telephone call. c. A jury of Barbara’s peers reviews the evidence against her and determines whether probable cause exists and whether the prosecutor should proceed to trial for manslaughter. d. Police officers stop Miguel on the street because his description matches that of a reported gas-station robber. He is three blocks from the gas station when they stop him. They question him, search him, and find that he has a pocketful of $20 and $50 bills—the same denominations that were reported by the gasstation attendant as having been stolen. The police read Miguel his rights and take him to the police station. e. Andrew is taken before a magistrate, where the charges against him are read and counsel is appointed. His request to be set free on bail is denied. f. In exchange for a guilty plea to manslaughter, the prosecutor agrees to drop the more serious murder charges against Maria.

Answer: a. Arraignment. b. Booking. c. Grand jury review. d. Arrest. e. Initial appearance. f. Plea bargain.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

130

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 13: Criminal Law and Procedures

4. Mona was laid off from her manufacturing job three years ago. Her unemployment compensation has run out, as has her severance package, and she has few prospects for finding work in the down economy. Mona learns that a former coworker has died. She thinks that if she can file a tax return using the co-worker’s name and Social Security number, she can collect a tax refund. Mona takes the woman’s name and looks up her Social Security number on the Social Security Death Index on a genealogy website. She waits until January 2022 to file the tax return in the deceased’s name. She receives a refund check. Mona decides that this is a quick and easy way to make money, so she continues to take names from obituaries reported in the media and file more false tax returns until she has collected over $100,000. What crimes has Mona committed?

Answer: Mona has committed the crimes of fraud, forgery, and identity theft.

5. The police pick up Larry and take him to the station for questioning in a local murder case. They detain him for three days. After two days of questioning, Larry says, “I want an attorney. You haven’t let me call my attorney.” It is late, and Larry’s attorney does not answer the phone, but she receives the message first thing in the morning on the third day that Larry is in custody and heads directly to the police station, where she secures Larry’s release. She confirms that the police failed to tell Larry that he had the right to have an attorney present and did not give him any of his other Miranda rights. What will be the result if the information that Larry gave to the police is used against him in court?

Answer: Larry’s Fifth Amendment right to remain silent, and his Sixth Amendment right to counsel—that is, his Miranda rights—have been violated. The statements that Larry made to the police would not be admissible against Larry in court. Larry’s attorney would need to file a motion to suppress along with a supporting memorandum. She might ultimately succeed in having the case against Larry dismissed, depending on the other evidence that the prosecution has against him. Larry’s attorney would file a motion to dismiss if the only evidence the police had was obtained from the questioning at the police station without giving Larry his Miranda rights. The motion to dismiss would assert that Larry’s constitutional rights had been violated because he was not informed of his Miranda rights.

6. After answering a few background questions regarding his name and title, a government official takes the Fifth Amendment eighty-two times during the course of a hearing on corruption charges. What does taking the Fifth Amendment eightytwo times say about guilt or innocence? Does taking the Fifth Amendment protect the official from self-incrimination?

Answer: The Fifth Amendment requires that no one shall be deprived of “life, liberty, or property without due process of law.” Additionally, the Fifth Amendment guarantees that no person shall be “compelled in any criminal case to be a

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

131

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 13: Criminal Law and Procedures

witness against himself.” This is known as the privilege against compulsory selfincrimination. Since taking the “Fifth” is a constitutional right, no adverse inference can be taken from using it in any proceeding.

7. A women’s clothing boutique posted information on Facebook about a leopardprint dress with hot pink and lime green accents that was stolen from the store. The theft was captured on security video. Shortly after the store’s posting, a Facebook selfie of a woman wearing the dress, captioned “Love my new dress,” was forwarded to the store owner. The owner contacted the police, who arrested the woman pictured in the selfie for theft. What factors would the court consider in determining whether the Facebook selfie was admissible?

Answer: In addition to the traditional factors of relevance and reliability, a court would consider: 1. Was the selfie protected by a password or other form of privacy protection?

2. Did the woman who took the selfie have a reasonable expectation of privacy even if no password protection was applied (e.g., was the material readily accessible to outsiders)?

3. Did the police have a reasonable suspicion or probable cause to investigate the social networking site or were they simply engaged in a “fishing expedition”?

4. Is there a reason to believe the evidence is a reliable representation of what the person posted, or might it have been hacked?

8. During a criminal trial involving child pornography charges, the defendant’s lawyer returned late from the lunch recess. The trial resumed, and the defendant had no lawyer present for seven minutes. During that time, prosecutors introduced incriminating evidence. When the lawyer returned from lunch, he did not object to the testimony that had been presented while he was absent. The defendant was convicted and sentenced to life in prison. Which of the defendant’s rights were violated? Can an argument be made that his conviction should be overturned?

Answer: The Sixth Amendment guarantees the right to a lawyer at various stages in some proceedings. The Sixth Amendment was violated when the defendant was unable to have his attorney present during the critical stage of his case, the actual criminal trial. Violating such a fundamental right would clearly support a motion to overturn the conviction. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

132

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 13: Criminal Law and Procedures

Group Project This project involves researching CryptoWall ransomware. Student one will locate the New York Times article, “How My Mom Got Hacked” and provide a summary of the facts and legal issues. Student two will locate and summarize an article discussing the CryptoWall cyber- attack on the Dickson County, Tennessee, Sheriff’s Office. Student three will locate the online Internet Crime Complaint Center and provide information on how to file a complaint with the agency. Student four will locate and summarize an article on abajournal.com about a lawyer who clicked on an e-mail link and lost $289,000. The group will make a recommendation on how law offices can avoid becoming victims of cybercrimes and how to respond if they do.

Answer: Students’ answers will vary but should include material from https://www.nytimes.com/2015/01/04/opinion/sunday/how-my-mom-gothacked.html https://www.tennessean.com/story/news/local/dickson/2014/11/11/dicksonsheriffs-office-pays-ransom-cyber-criminals/18868325/ (or other publications discussing this story), and https://www.abajournal.com/news/article/lawyer_who_clicked_on_attachment_lose s_nearly_289k_in_hacker_scam. [return to top]

Video Questions Watch the video clip about the investigation of the Boston Marathon Bombing and read the supplemental material below. Then answer the following questions.

The statement was made on the video clip regarding the investigation that: “There are limits there. Once they Mirandized him, or gave the Miranda warnings to the surviving brother, he stopped talking. They had a couple of days with him, about 16 hours in full and he said that there was no one else involved.”

1. According to the material in Chapter 13, at what stage in the criminal process are Miranda rights given and what do Miranda rights include? Which Constitutional Amendments are Miranda rights based on?

Answer: After an arrest and once a person is placed in custody, the individual must be informed of certain constitutional rights under the Miranda rule, including their Fifth Amendment right to remain silent, and that any statements made may be used against them in a court of law. Also, individuals who are arrested must be told of their Sixth Amendment right to counsel, which includes having a lawyer present while being questioned, and that if they cannot afford a lawyer, that one will be appointed at no cost.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

133

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 13: Criminal Law and Procedures

2. According to the material in Chapter 13, what happens if Miranda rights are not given?

Answer: If Miranda rights are not given to an individual who is arrested and taken into custody, then anything the person says is inadmissible in court.

3. According to the material in Chapter 13, what other Constitutional safeguards exist for criminal defendants?

Answer: Under what is known as the exclusionary rule, evidence obtained in violation of the rights spelled out in the Fourth, Fifth, and Sixth Amendments normally is excluded from trial, along with evidence derived from the improperly obtained evidence. Evidence derived from illegally obtained evidence is known as the “fruit of the poisonous tree.” The purpose of the exclusionary rule is to deter police from conducting warrantless searches and engaging in other misconduct.

The Bill of Rights, found in the first ten Amendments to the U.S. Constitution, provides additional procedural safeguards to protect persons accused of crimes against potentially arbitrary or unjust use of government power. These safeguards include: The Fourth Amendment, which prohibits unreasonable searches and seizures and requires a showing of probable cause before a search or an arrest warrant may be issued.

• The Fifth Amendment (in addition to the guarantee of the right to remain silent, discussed in Question 1 above), which requires that no one shall be deprived of “life, liberty, or property without due process of law.” Due process of law means that the government must follow a set of reasonable, fair, and standard procedures (that is, criminal procedural law) in any action against a citizen.

• The Fifth Amendment, which prohibits double jeopardy (trying someone twice for the same criminal offense).

• The Sixth Amendment, which guarantees a speedy and public trial, a trial by jury, and the right to confront witnesses, in addition to the right to a lawyer as discussed in Question 1 above.

• The Eighth Amendment, which prohibits excessive bail and fines, as well as cruel and unusual punishment.

4. There is a federal exception to the Miranda rule that allows for questioning a suspect without giving the suspect his Miranda rights. It applies when the public safety may be in question, and was used for 16 hours over a two-day period during the questioning of Dzhokhar Tsarnaev. During this questioning, Tsarnaev told federal investigators about his role in the Boston Marathon bombings and the reasons that he and his brother planted the bombs. Do you think that it was fair that the federal agents had two days to question Dzhokhar Tsarnaev before giving him his Miranda rights? Why or why not? Should the time period have been shorter?

•

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

134

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 13: Criminal Law and Procedures

Answer: Students’ answers will vary. For an interesting discussion of this issue see: http://www.theatlantic.com/national/archive/2013/04/how-the-media-havemisunderstood-dzhokhartsarnaevs-i-miranda-i-rights/275189/ Watch the “Easy Identity Theft” video clip and answer the questions below.

1. How is identity theft defined in the chapter? Is identity theft limited to the Internet?

How have thieves used the Internet to expand this crime?

Answer: Identity theft occurs when the wrongdoer steals a form of identification— such as a name, date of birth, or Social Security number—and uses the information to access the victim’s financial resources. The Internet provides not only another way to steal personal information but also a way for those who steal this information to use items such as stolen credit card numbers while protected by anonymity.

2. Do you think that the woman who was the victim of identity theft was accurate in her statement that she is responsible for paying the nearly $1,000,000 that resulted from her identity theft? Why or why not? How might she resolve this problem in her favor?

Answer: The woman in the video is not accurate in her statement that she is responsible for the mortgages and the home equity loans, but she will have to prove that she is not the person who borrowed the money. In most instances, victims of identity theft cannot be held responsible for more than $50 for credit card purchases, or for fraudulent use of their ATM cards. In addition, anything that is put on her credit report has to be removed if she writes to the credit-reporting agency and informs them that her identity was stolen.

3. Visit the Federal Trade Commission’s website dedicated to identity theft at www.identitytheft.gov. Who should you contact if your identity is stolen?

Answer: You should file a police report with your local police; contact banks, credit card, and other companies where you know that the fraud took place; place a fraud alert and order a credit report; close new accounts opened in your name, remove bogus charges from your accounts, and correct your credit report. Also, victims of identity theft should contact the Federal Trade Commission. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

135

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 14: Tort Law, Product Liability, and Consumer Law

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 14: Tort Law, Product Liability, and Consumer Law

Table of Contents Answers to the End-of-Chapter Questions .............................................................................. 136 Questions for Review ............................................................................................................................ 136 Ethics Question...................................................................................................................................... 140 Practice Questions and Assignments..................................................................................................... 140 Group Project ........................................................................................................................................ 143 Video Questions .................................................................................................................................... 144

Answers to the End-of-Chapter Questions Questions for Review 1. Define tort. What is the underlying purpose of tort law? What are the main categories of torts?

Answer: A tort is a civil wrong not arising from a breach of contract—a breach of legal duty that proximately causes harm or injury to another.

Two notions serve as the basis of all torts: wrongs and compensation. Generally, the purpose of tort law is to provide remedies for the invasion of various interests—such as people’s interests in their physical safety, security, privacy, freedom of movement, or reputation—that society seeks to protect. The main categories of tort law are intentional torts, negligence, and strict liability.

2. Define intentional tort. List the elements of assault, battery, intentional infliction of emotional distress, and defamation. How do intentional torts against persons differ from cyber torts?

Answer: An intentional tort requires intent; it means that the actor intended the consequences of an act or knew or should have known that certain consequences would result from an act.

•

•

The elements of assault are: (1) an act intended to cause an apprehension of harmful or offensive contact, and (2) an act that caused apprehension in the victim that harmful or offensive contact was imminent.

The elements of battery are: (1) an intent to cause an unwanted contact, and (2) the unwanted harmful contact.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

136

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 14: Tort Law, Product Liability, and Consumer Law

•

•

The elements of intentional infliction of emotional distress are: (1) outrageous conduct by the defendant, (2) intent on the part of the defendant, (3) severe emotional distress by the plaintiff, and (4) distress caused by the defendant.

The elements of defamation are: A false statement, not made under privilege, that is communicated to a third person and that causes damage to a person’s reputation. If spoken, it is slander; if in print, it is libel.

Cyber torts are torts committed online. Cyber torts are a kind of intentional tort against persons. However, it is difficult to prove that an online defamatory remark was “published,” and the courts are having difficulty determining what tort duties apply in cyberspace.

3. List and define the four elements of negligence. Why is the duty of care of professionals different from the duty of an ordinary person? What are the defenses to a negligent action?

Answer: The four elements of negligence are: 1. The defendant owes a duty of care to the plaintiff.

2. The defendant breached that duty.

3. The plaintiff suffered a legally recognizable injury.

4. The defendant’s breach caused the plaintiff’s injury.

The duty of care for an ordinary person is that of a reasonable person in the same circumstances. The duty imposed on a professional is to act consistently with his or her status. Thus, the professional must act according to the knowledge and skill that one in that profession would use. In other words, professional training is taken into account. A doctor, lawyer, or other professional must act with the reasonable knowledge and skill expected of a doctor, lawyer, or other professional under the circumstances.

The defenses to a negligent action are: 1. Assumption of risk: This defense is available when the plaintiff knows of the risk and voluntarily assumes it.

2. Superseding cause: This defense is available when an unforeseeable, intervening event breaks the connection between a wrongful act and an injury to another, relieving the defendant of liability.

3. Comparative negligence: Most states apply this doctrine instead of contributory negligence.

Here, the plaintiff’s negligence and the defendant’s negligence are computed and the liability for damages distributed accordingly. Some jurisdictions have adopted a “pure” form of comparative negligence that allows the plaintiff to recover, even if the extent of his or her fault is greater than that of the defendant. Many states’ comparative negligence statutes, however, contain a “50 percent” rule by which the plaintiff recovers nothing if he or she was more than 50 percent at fault. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

137

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 14: Tort Law, Product Liability, and Consumer Law

4. Contributory negligence: This defense is available when the plaintiff is also negligent by failing to exercise reasonable care. It prevents recovery of injury by the plaintiff no matter how insignificant the plaintiff’s negligence was.

The contributory negligence defense is available in only a few jurisdictions.

5. Defendants often defend against negligence claims by asserting that the plaintiffs have failed to prove the existence of one or more of the required elements for negligence.

4. What is product liability? What are the three legal theories for product liability suits? List and define the affirmative defenses to a product liability suit.

Answer: Product liability is the legal liability of manufacturers, sellers, and lessors of goods to consumers, users, and bystanders for injuries or damages that are caused by the goods.

There are three theories of product liability: 1. Negligence: If a manufacturer fails to exercise due care to make a product safe, any person who is injured by the product can sue the manufacturer for negligence.

2. Misrepresentation: When a manufacturer or seller misrepresents the quality, nature, or appropriate use of a product, and the user is injured as a result, the basis of liability may be the tort of fraud.

3. Strict product liability: Under the doctrine of strict liability, a manufacturer that has exercised reasonable care can still be held liable if a product is defective and injures someone. Strict product liability reflects the general principle that the law should protect consumers from unsafe and dangerous products.

The affirmative defenses to a product liability suit are: 1. Assumption of risk: The defendant must show that the plaintiff knew and appreciated the risk created by the product defect and the plaintiff voluntarily assumed the risk, even though it was unreasonable to do so.

2. Product misuse: Defendants can also claim that the plaintiff misused the product.

3. Comparative negligence: Liability for injuries resulting from negligent acts is shared by all persons who were guilty of negligence (including the injured party) on the basis of each person’s proportionate carelessness.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

138

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 14: Tort Law, Product Liability, and Consumer Law

5. List and describe the six areas of federal consumer law discussed in the chapter. Do states have consumer protection laws? If so, what level of consumer protection do state laws provide?

Answer: The six areas of federal consumer law are: 1. Deceptive sales practices: The Federal Trade Commission (FTC) has authority to investigate and sue firms engaged in deceptive business practices that could injure a reasonable consumer. The agency also issues regulations to define certain deceptive practices. State attorneys general have broad powers to attack deceptive practices.

2. Deceptive advertising: Advertising that misleads consumers or that is based on false claims is prohibited by the FTC. Generally, the test for whether an ad is deceptive is whether a reasonable consumer would be deceived by the ad.

The FTC can require the advertiser to stop the challenged advertising, often by getting a court to issue a cease-and-desist order.

3. Labeling and packaging: Manufacturers must comply with labeling or packaging requirements for their specific products. In general, labels must be accurate and not misleading. Food products must bear labels detailing their nutritional content, and standards must be met before a product can use terms like fresh and organic on the label.

4. Sales transactions: Many federal laws regulate the disclosure of terms to consumers in sales transactions, particularly in door-to-door and mail-order sales. The FTC conducts most of the federal regulation of sales. States have broad statutes that allow them to sue firms for harmful sales practices that cover a wide range of activities.

5. Consumer health and safety: Laws protecting the health and safety of consumers regulate the content of a food, drug, or other item. The Federal Food, Drug and Cosmetic Act protects consumers against impure and misbranded foods and drugs. The act establishes food standards, specifies safe levels of food additives, and regulates some aspects of food advertising.

The Consumer Product Safety Act seeks to protect consumers from risk of injury from hazardous products. The Consumer Product Safety Commission has the power to remove products that are deemed hazardous from the market and to ban the manufacture and sale of hazardous products.

6. Consumer credit protection: Credit protection has become an important area regulated by federal consumer protection legislation. Among the most important is the Truth-in-Lending Act (TILA). It is a disclosure law requiring sellers and lenders to disclose credit terms or loan terms so that individuals can shop around to compare terms.

A wide variety of state consumer protection statutes exist, and some state statutes provide more protection for business practices than that afforded by the federal laws. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

139

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 14: Tort Law, Product Liability, and Consumer Law

6. What are the three characteristics of abnormally dangerous activities?

Answer: Abnormally dangerous activities have three characteristics. The activities: 1. involve potential harm, of a serious nature, to persons or property, 2. involve a high degree of risk that cannot be completely guarded against by the exercise of reasonable care, and 3. are not commonly performed in the community or area. [return to top]

Ethics Question Chloe is a new legal assistant interviewing a client who wants to sue the manufacturer of an allegedly defective elliptical training machine. The client claims that while using the machine, it stopped suddenly, causing him to fall off and seriously injure his hip.

Near the end of the interview, the client asks Chloe whether she thinks he has a good case. Chloe responds, “Well, as you know, I’m a paralegal, and I cannot give legal advice.

Personally, though, I think that you do have a good case.” Has Chloe violated her ethical duties? How would you have handled the situation?

Answer: Chloe violated her ethical duty to not give legal advice by telling the client that she personally thought that he had a good case. The reason is that Chloe is a legal professional, and the client will believe that her opinion is a professional one, not a personal one. If you are ever in this situation, do not give your personal opinion. Do not say anything more than, “I’m a paralegal, and I cannot give legal advice. The attorney will let you know whether he thinks you have a strong case.” If the client persists in asking for an opinion on the strength of his case, then refer the client to the attorney or, if the attorney is in the office, ask him to come in and answer the client’s question. [return to top]

Practice Questions and Assignments 1. Bob is driving to work for his morning shift at the plant when he encounters strikers who are picketing and blocking the entrance to the factory. Bob cannot afford to lose his job, so he decides to cross the picket line. When he attempts to drive through, the picketers surround his car and begin to rock and push it. Bob’s car is spun around and ends up in oncoming traffic. Bob suffers a panic attack and his anxiety disorder is aggravated so that he cannot work. Does Bob have a tort claim against the picketers? If so, which torts were committed?

Answer: Bob has a claim against the picketers for the torts of assault, battery, and the intentional infliction of emotional distress.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

140

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 14: Tort Law, Product Liability, and Consumer Law

2. During the Ebola crisis, hospitals throughout the United States set up protocols for handling Ebola patients, including providing an Ebola checklist for use by emergency room staff. When the first Ebola patient was initially seen at a Texas hospital’s emergency room, he reported a fever and flu-like symptoms (classic symptoms of the Ebola virus) and told the emergency room staff that he had just come from Liberia, a country with a severe Ebola outbreak. The patient was treated for the flu, given antibiotics, and sent home. Despite the presence of Ebola symptoms and his recent arrival from Liberia, his illness was not reported to any authorities. The man returned three days later by ambulance, deathly ill. He was admitted to the hospital, was diagnosed with Ebola, and died within a few days. On which tort law theory discussed in the chapter might the hospital be liable?

Answer: The hospital failed to exercise reasonable care resulting in injuries, which would satisfy the negligence theory.

3. Two middle-school girls labeled a male gym teacher a “perv” and “creeper.” They spread false rumors that he inappropriately touched students and peeked into the girls’ locker room. The girls’ parents shared these falsehoods about the teacher with their friends. The teacher was cleared of allegations of criminal behavior and filed a lawsuit against the parents for spreading false rumors about his behavior.

Under which tort theory would the teacher file a suit?

Answer: Defamation.

4. A law school has an open admissions policy, and because of an antiquated state law, it accepts students with the equivalent of an associate’s degree. Once admitted, students must earn a grade of “C” or better in all courses to stay enrolled. Many students flunk out. Several disgruntled students start a blog where they complain about the law school’s policies. Over time, more students post on the blog, and some of the statements are untrue. The law school sues for online defamation, naming the defendants as John Does. Will the Internet Service Provider (ISP) have to reveal the identities of the defendant Does? How do the rights of the plaintiff balance against the defendants’ First Amendment rights to free speech? Can the ISP be held liable for the defamation?

Answer: Defamation is wrongfully harming a person’s good reputation. The law imposes a general duty on all persons to refrain from making false, damaging statements about others. The tort of defamation requires the publication of the statement or statements that hold an individual up to contempt, ridicule, or hatred. Publication means the defamatory statements are communicated to third parties. Defamatory statements made on the Internet are actionable as well. Anyone who republishes or repeats defamatory statements, knowing them to be false, is liable even if that person reveals the source of the statements.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

141

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 14: Tort Law, Product Liability, and Consumer Law

If the law school files suit, it may serve a discovery request on the ISP and the judge would need to determine if the requested information was relevant to the case. A problem for anyone who seeks to sue for online defamation is discovering the identity of the person who posted the defamatory message. ISPs can disclose personal information about their customers only when ordered to do so by a court. With respect to the right of free speech, some courts have concluded that more than a bare allegation of defamation is required to outweigh an individual’s right to anonymity in the exercise of free speech as to whether the ISP can be held liable for defamation, and there is no evidence to establish that the ISP had knowledge that the statements were false.

5. Carmen buys a television set manufactured by AKI Electronics. She is going on vacation, so she takes the set to her mother’s house for her mother to use. Because the set is defective, it explodes, causing considerable damage to her mother’s house.

Carmen’s mother sues AKI for the damage to her house. Discuss the product-liability theories under which Carmen’s mother can recover from AKI. Answer: Carmen’s mother can recover from AKI under theories of negligence and strict liability. Negligence occurs when a manufacturer fails to exercise “due care” to make a product safe, and any person who was injured by the product may sue the manufacturer for negligence. The plaintiff does not have to be the person who purchased the product, so Carmen’s mother could sue under this theory. The manufacturer must exercise due care in designing the product, selecting the materials, and producing and assembling it. The duty of due care also requires the inspection testing of any item purchased that is incorporated into the final product.

Thus, AKI had a duty to make a safe television, one that would not explode and damage someone’s house. This required AKI to exercise due care in designing the television and in selecting the materials, along with inspecting and testing the parts used in it. AKI also owed a duty to use due care in producing and assembling the television.

Strict liability will be imposed on AKI because Carmen’s mother can prove: (1) that the television was in a defective condition when it was sold, because a nondefective television would not explode; (2) that AKI was normally in the business of selling televisions; (3) that the television was unreasonably dangerous to the user (Carmen’s mother) because of its defective condition—it exploded and damaged her home; (4) that the plaintiff incurred harm to her property (damage to her home) by use of the product; (5) that the defective condition was the proximate cause of the damage to her house; and (6) that neither Carmen nor her mother had substantially changed the television from the time that Carmen purchased it to the time it exploded at her mother’s house.

Note that Carmen’s mother is not required to show why or in what manner the product became defective. She must only prove that the product was “so © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

142

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 14: Tort Law, Product Liability, and Consumer Law

defective” as to be “unreasonably dangerous.” A court will find the product to be an “unreasonably dangerous product” if either (1) the product is dangerous beyond the expectation of the ordinary consumer, or (2) a less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it. A product may be unreasonably dangerous due to a flaw in the manufacturing process, a design defect, or inadequate warning. Carmen’s mother will be able to prove that the television was dangerous beyond the expectation of the ordinary consumer because it exploded during normal use. [return to top]

Group Project This project asks students to research the ignition-switch recall by General Motors (GM) in 2014. Student one will locate and summarize articles describing the problem with ignition switches on GM vehicles, when and how the problem was discovered, and what injuries or deaths resulted from the defective ignition switches. Student two will locate and summarize articles on why product-liability lawsuits against GM were not a viable alternative in 2014. Student three will locate and summarize articles on the Congressional testimony of GM’s executives on the ignition-switch issue and describe what remedies resulted for persons who were injured or for the families of those who died. Student four will compile the summaries and present them to the class.

Answer: Answers will vary. Articles are available on https://www.npr.org/2014/03/31/297158876/timeline-a-history-of-gms-ignitionswitch-defect (viewed 7/17/20); https://www.usatoday.com/story/money/cars/2017/10/20/gm-settles-deadlyignition-switch-cases-120-million/777831001/ (viewed 7/17/20); https://www.freep.com/story/money/cars/general-motors/2019/09/06/gm-ignitionswitch-nhtsa-recalls-safety-defects/2099289001/ (viewed on 7/17/20). There is also a Wikipedia site located at https://en.wikipedia.org/wiki/General_Motors_ignition_switch_recalls#:~:text=On%2 0February%206%2C%202014%2C%20General,prevent%20the%20airbags%20from%2 0inflating (viewed on 7/17/20). [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

143

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 14: Tort Law, Product Liability, and Consumer Law

Video Questions Watch the “Doctors Apologize for Malpractice” video clip for the chapter and answer the questions below.

1. According to the text, what duty does a professional owe to his or her clients or patients? What results when that duty is breached? What type of tort is this?

Answer: If a person has special knowledge or skill, the person’s conduct must be consistent with that status. Professionals—including physicians, psychiatrists, architects, engineers, accountants, contractors, lawyers, and others—are required to have a standard minimum level of special knowledge and ability. In determining what is reasonable care in the case of professionals, their training, standards of the profession, and expertise are taken into account. In other words, an accountant cannot defend against a lawsuit for negligence by stating, “But I was not familiar with that principle of accounting.”

Furthermore, a business is held to the standard of care expected of knowledgeable people in that line of work. Thus, an auto repair shop cannot deny knowledge of the proper procedures for an oil change.

If a professional violates his or her duty of care toward a client, the professional may be sued for malpractice. For example, a patient might sue a physician for medical malpractice. Thus, a surgeon who did not follow standard procedures and thereby injured a patient would have negligently committed medical malpractice. Medical malpractice is a type of negligence.

2. Were you surprised by how the medical malpractice was initially handled in the video clip? Do you think that lying about what happened and not discussing the problem is an effective way to deal with medical malpractice? How would you respond to this type of treatment if you were the patient in the video? How would you feel if you were the doctor who committed the malpractice?

Answer: Students’ answers will vary.

3. Based on the information presented in the video, the number of lawsuits is reduced when doctors admit malpractice and apologize. Should good customer service and a reduction in the number of lawsuits be the only goal in having doctors apologize for medical malpractice? Why or why not? How might the environment change if doctors felt free to admit errors? [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

144

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 15: Contracts and Intellectual Property Law

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 15: Contracts and Intellectual Property Law

Table of Contents Answers to the End-of-Chapter Questions .............................................................................. 145 Questions for Review ............................................................................................................................ 145 Ethics Question...................................................................................................................................... 148 Practice Questions and Assignments..................................................................................................... 148 Group Project ........................................................................................................................................ 152 Video Questions .................................................................................................................................... 153

Answers to the End-of-Chapter Questions Questions for Review 1. What are the four basic requirements for forming a valid contract? Are there any circumstances in which the court will enforce the parties’ agreement even though it lacks consideration? What defenses can be used against a claim of breach of contract?

Answer: The four basic requirements of a valid contract are: 1. Agreement: This includes an offer and an acceptance; one party must offer to enter into a legal agreement, and the other party must accept the terms of the offer.

2. Consideration: Any promises made by parties must be supported by legally sufficient and bargained-for consideration (something of value that is received or promised to convince a person to make a deal).

3. Contractual capacity: Both parties entering into the contract must have the contractual capacity to do so; the law must recognize them as possessing characteristics to qualify them as competent parties.

4. Legality: The contract’s purpose must be to accomplish some goal that is legal and not against public policy.

Contracts will be enforced even though consideration is lacking under the doctrine of promissory estoppel.

Several defenses can be used against a claim of breach of contract: 1. Genuineness of consent: A contract can be voided if there was a lack of real consent. This may be on the basis of mistake if the mistake was one of

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

145

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 15: Contracts and Intellectual Property Law

material fact and only when both parties are mistaken. Lack of consent could also be based on fraudulent misrepresentation in the making of the contract, or be a result of undue influence or duress.

2. Unconscionable contracts or clauses: When a contract (or clause in a contract) is so oppressive to one of the parties that a court will refuse to enforce it, the oppressed party will be excused from performance. These situations usually involve an adhesion contract, which is a contract drafted by the dominant party and presented on a “take-it-or-leave-it” basis.

3. Statute of Frauds: Every state has a Statute of Frauds, which is a statute that specifies what types of contracts must be in writing. Types of contracts that are normally required to be in writing include contracts involving land, contracts that cannot by their terms be performed within one year from the day after the date of formation, collateral or secondary contracts, promises made in consideration of marriage, and contracts for the sale of goods priced at $500 or more.

2. Consideration, a requirement for a valid contract, is defined as something of value. What items, other than money, meet this definition? Explain how consideration distinguishes a contract from a gift.

Answer: Many items other than money meet the definition of something of value given as consideration. Items such as jewelry, real estate, cars, and electronic appliances are among some of the items that would constitute consideration.

Consideration distinguishes a contract from a gift because both parties must give it. In giving a gift, only one party gives consideration.

3. What is the Uniform Commercial Code (UCC), and to what types of contracts does it apply? How does the UCC affect the common law of contracts? What warranties exist under the UCC? Answer: The UCC is a uniform law created by the American Law Institute and National Conference of Commissioners on Uniform State Laws. Article 2 applies to contracts for the sale of goods. The UCC primarily comes into play when disputes arise over ambiguous or missing terms, and when the buyer or seller is a merchant. If the UCC has not modified a common law rule, then the common law applies.

Several warranties are presumed to exist under the UCC. The UCC provides that a warranty of title arises in any sale of goods—that is, a seller automatically warrants (promises) to a buyer that the seller has good title to (legitimate ownership rights in) the goods being sold and can transfer that good title to the buyer. An express warranty is an oral or written promise made by a seller concerning the nature of the goods being sold. Implied warranties arise in all sales transactions: There is both an implied warranty of merchantability and an implied warranty of fitness for a particular purpose.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

146

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 15: Contracts and Intellectual Property Law

4. Describe the remedies that are available when a contract is breached. What is specific performance, and in what circumstances is it available?

Answer: The remedies for breach of contract are: 1. Money damages, including compensatory damages, incidental damages, and consequential damages.

2. Rescission and restitution.

3. Reformation.

4. Specific performance.

5. The UCC may provide additional remedies to buyers and sellers (such as the buyer’s right to reject nonconforming goods).

Specific performance requires a party to perform the contract and is available only when money damages are inadequate if the contract is not for personal services.

5. What kinds of electronic contracts do the courts enforce? What constitutes an electronic signature, and what ma kes it valid? What state and federal laws govern electronic signatures and contracts?

Answer: The courts enforce “click-on” agreements and “shrink-wrap” agreements (unless the buyer learned of the terms after entering into the contract).

An electronic signature can be found in the form of digital signatures, which verify the identity of parties to a contract. A party’s signature can be electronically encoded onto a key or card that is verified by a third party or can be digitally captured and attached to the electronic document.

At least forty-six states have adopted the Uniform Electronic Transactions Act (UETA), which governs e-signatures. A federal law has also been adopted. The Electronic Signatures in Global and National Commerce Act (E-SIGN Act) gives validity to e-signatures by providing that no contract, record, or signature may be “denied legal effect” solely because it is in electronic form.

6. List the four major forms of intellectual property and describe what intellectual property is. Why is it significant in the law today?

Answer: Intellectual property is property resulting from intellectual, creative processes. The four major forms of intellectual property are patents, copyrights, trademarks, and trade secrets.

Intellectual property is an important topic in the law today because the value of the world intellectual property exceeds the value of physical property, such as machines and houses. Likewise, ownership rights in intellectual property are more important to the prosperity of U.S. companies than are their tangible assets. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

147

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 15: Contracts and Intellectual Property Law

Ethics Question Shayna is a paralegal at a bank. She reviews a package of loan documents for a complex commercial transaction that has been submitted by the lawyers for the borrower. She does not fully understand one provision in the documents that eliminates the need for a guarantor. A guarantor promises that the loan will be repaid in the event that the borrower fails to do so, an important protection for the bank. Shayna does not include this provision in her summary to her supervising attorney, and the loan goes through without the guarantee. Later the borrower defaults on the loan and the bank is out several million dollars. What ethics rules have been violated? What might be the outcome for Shayna? For her supervising attorney?

Answer: First, Shayna should have alerted her supervising attorney to the fact that she did not understand the guarantor provision. Since Shayna did not alert her supervisor to her lack of understanding of a guarantor’s role in the transaction, she violated the duty of competence. Her attorney also violated the duty of adequate supervision, as her supervising attorney, who is ultimately responsible for a paralegal’s work, should have reviewed the documents (or at least asked Shayna if they contained a guarantor provision, at which point Shayna could have asked the attorney to explain it). The supervising attorney could have a grievance filed against her, and could face discipline by the state bar association. Shayna and her supervising attorney could be disciplined by the bank, or lose their jobs, over their failure to include a guarantor provision.

Shayna also violated Canon 6 of the NALA Code of Ethics and the NFPA’s Model Rule 1.1. If she belongs to either one of these organizations, she could suffer the consequences of violating their rules, as well. [return to top]

Practice Questions and Assignments 1. Using the material on contract law in this chapter, identify which contract below is a bilateral contract and which is a unilateral contract: a. Juanita offers to sell Mier her laptop for $200. Mier agrees and tells her he will meet her in the cafeteria at noon the next day with cash. b. Jonah e-mails Michael and offers Michael $5,000 to paint his house green during the first week of June. Michael does not respond to Jonah’s e-mail, but arrives at Jonah’s house on June 1st and begins painting it green.

Answer: a. This is an example of a bilateral contract. b. This is an example of a unilateral contract.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

148

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 15: Contracts and Intellectual Property Law

2. Bernie, the sole owner of a small business, has a large piece of used farm equipment for sale. He offers to sell the equipment to Hank for $10,000. Discuss what happens to the offer in the following situations: a. Bernie dies prior to Hank’s acceptance; at the time he accepts, Hank is unaware of Bernie’s death. b. The night before Hank accepts, a fire destroys the equipment.

Answer: a. An offer normally terminates on the death of either of the parties. This is true whether or not the offeree has notice of the offeror’s death, unless the offeree mailed the acceptance before the offeror’s death. If the acceptance was mailed, the mailbox rule comes into play. In the Bernie-Hank hypothetical, there are no facts indicating that the acceptance was mailed, so the offer is terminated. b. An offer terminates automatically when the subject matter of the offer is destroyed. Accordingly, there is no contract.

3. Using the material on acceptances presented in this chapter, identify which situation below will result in a contract: a. Kelly offers to sell her used algebra textbook to Patrick for $50. Patrick responds, “Maybe—if I have enough money once I get my book refund later this week.” b. Kirk offers Kristina $50 for her textbook. Kristina says, “Sure. I’ll drop it off in the morning.”

Answer: a. This situation will not result in a contract, because Patrick’s acceptance is not unequivocal. b. This situation will result in a contract, because Kristina has accepted the offer.

4. Using the material on contract law presented in this chapter, identify which defenses the defendants in the following hypothetical cases might use in an action for breach of contract: a. Mrs. Martinez, a Spanish-speaking immigrant, buys a washing machine and signs a financing agreement that allows her to pay for it in monthly installments.

The agreement contains a clause that allows the store to repossess the appliance if she misses a payment. Mrs. Martinez misses the next-to-the-last payment. The store notifies Mrs. Martinez that she has breached her contract and that it intends to repossess the washing machine. How might Mrs. Martinez defend against the store’s action? b. Sally orally agrees to purchase a farm from her lifelong friend, Fred. She promises to pay Fred $120,000 for the farm. She trusts Fred, so she does not put the deal in writing. A few days later, Fred sells the same property to Nell for $140,000. Fred and Nell put their agreement in writing. When Sally learns of Fred’s contract with Nell, she sues Fred for breach of contract. What is Fred’s defense? © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

149

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 15: Contracts and Intellectual Property Law

c. Rob enters into a contract with Tom to sell Tom fifty sweaters in Christmas colors and featuring Christmas designs. The first shipment of sweaters is due on October 1, 2021. When the sweaters are not delivered, Tom calls Rob and learns that the factory where the sweaters were to be produced has burned down. Tom, who is upset because he needed the sweaters for his Christmas catalog sales, sues Rob for breach of contract. What is Rob’s defense?

Answer: a. Unconscionability. b. Statute of Frauds. c. Impossibility of performance.

5. Joel goes to an expensive restaurant in New York for lunch. He orders the special, pasta with white truffles. The price is not given, and he does not ask the waiter how much it costs. When the bill arrives at the end of the meal, Joel is flabbergasted—he was charged $175 for his entrée. Does a lunch meet the definition of a sale of goods under the UCC? If so, does the UCC rule apply that where the buyer and seller have agreed to a contract but have not agreed on the price, the price must be a reasonable price for the goods, and not the price that the seller demands?

Answer: Under the UCC, Joel’s lunch meets the definition of a sale of goods because the lunch, or food, qualifies as “goods,” not “services.” The UCC rule states that in a contract for the sale of goods, the failure to state a price will not prevent the formation of a contract if the parties’ original intent was to form a contract. In this case, because Joel ordered the food, he has shown his intent to form a contract.

In this case, a reasonable price would be determined by the court—if Joel chose to pursue the matter legally. Or in the restaurant, Joel should be able to negotiate a reasonable price for his pasta by explaining the law to the manager, offering to pay the manager what Joel feels is a reasonable amount, and letting the manager pursue a claim against him for the balance if the manager disagrees.

6. Using the requirements for an offer that were stated in the chapter, draft a simple offer to purchase a used iPad from a classmate. Make sure that the offer is definite and certain. Next, write an explanation (in one or two paragraphs) of how you would communicate the offer to the person, how long the offer would remain open, and what method of acceptance you would prefer.

Answer: Answers will vary by student.

7. Based on the material on intellectual property law presented in the chapter, in which of the following situations would a court likely hold Maruta liable for copyright or trademark infringement?

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

150

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 15: Contracts and Intellectual Property Law

a. At the library, Maruta photocopies ten pages from a scholarly journal relating to a topic on which she is writing a term paper. b. Maruta makes leather handbags and sells them in her small leather shop.

She advertises her handbags as “Vutton handbags,” hoping that customers might mistakenly assume that they were made by Vuitton, the well-known maker of high-quality luggage and handbags. c. Maruta owns a video store. She purchases one copy of all the latest DVDs from various DVD manufacturers. Then, using blank discs, she makes copies to rent or sell to her customers.

Answer: A court would likely hold Maruta liable for b and c. Advertising handbags as “Vutton handbags” is a trademark and trade name infringement on Louis Vuitton handbags. Likewise, copying and renting or selling videos is a copyright infringement. A court would not be likely to hold Maruta liable for a. This is an educational use of copyrighted material, which would fall within the “fair use” exemption to the copyright law.

8. Rosalia, a very experienced paralegal, works in a firm specializing in appellate law practice. She prepares many legal briefs along with her supervising attorney, and sometimes her supervising attorney just reviews, signs, and files the briefs.

Recently, it has come to the firm’s attention that several fee-based online legal research databases have been reproducing the firm’s legal briefs in their databases and selling access to them. Rosalia’s supervising attorney has obtained copyright registration over many of their briefs and is considering suing for copyright infringement. Explain whether Rosalia and her supervising attorney have a case, or whether the reproduction of the briefs represents fair use.

Answer: Literary or artistic productions are protected under copyright law. While it is not possible to copyright an idea, the documents that Rosalia and her supervising attorney have created can be copyrighted if they are expressed in a form that fits the requirement of originality. Since Rosalia and her supervising attorney created the forms together, the copyright would expire 70 years after the death of the last surviving author. Although copyrights can be registered with the U.S. Copyright Office in Washington, D.C., registration is not required. In this case, however, Rosalia’s supervising attorney has even obtained copyright registration over many of the briefs.

Copyright infringement is said to occur when the form or expression of an idea is copied. The exception to liability for copyright infringement is known as the “fair use” doctrine, in which a person or organization can, in certain situations, reproduce copyrighted material without paying royalties. Section 107 of the copyright law notes that one of the four factors considered in determining whether or not a particular use is fair is “the purpose and character of the use, including

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

151

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 15: Contracts and Intellectual Property Law

whether such use is of commercial nature or is for nonprofit educational purposes.” Because the fee-based online legal databases are selling access to the forms created by Rosalia and her supervising attorney, the court will have to decide if it is more commercial (than nonprofit educational) in nature. If they determine that it is commercial in nature, then there will not be fair use, and Rosalia and her supervising attorney may have a case. However, the rub is that the courts decide fair use on a case-by-case basis, making the outcome unpredictable. [return to top]

Group Project In this project, each group will analyze advertisements to determine if they can be offers.

Students one and two will review the Pepsi Harrier Jet commercials (numbers one and two) on YouTube.com to determine the differences between the two ads. (These ads are discussed on page 456 of the textbook and in section 15-1c of the e-book in Example 15-5.)

Student three should locate the U.S. Second Circuit Court of Appeals opinion in this case on Google Scholar and create a list of the reasons that the court gave for finding that the first ad was held not to be enforceable.

Student four will play the two commercials for the class, explaining how they differ and offering support for the court’s opinion that no legal offer was made.

Answer: Answers will vary.

Commercial 1: https://www.youtube.com/watch?v=ZdackF2H7Qc (viewed on 7/19/20).

Commercial 2: https://www.youtube.com/watch?v=h7XliS0DYRo (viewed on 7/19/20).

The Second Circuit Court of Appeals affirmed the district court’s holding that the ad was not an enforceable contract. The case is Leonard v. Pepsico, 210 F.3d 88 (2000) and can be found on Justia.com at https://law.justia.com/cases/federal/appellatecourts/F3/210/88/483989/ (viewed on 7/19/20), as can the opinion of the Southern District of NY https://law.justia.com/cases/federal/districtcourts/FSupp2/88/116/2579076/ (88 F.Supp. 2d 116 (1999) viewed on 7/19/20).

Case briefs of Leonard v. Pepsico can also be found online on several case briefing websites. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

152

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 15: Contracts and Intellectual Property Law

Video Questions Watch the “Samsung Apple Patent Fight” video clip and answer the questions below.

1. What are the facts of this case? Were any patents violated and if so, who violated them? Were damages awarded?

Answer: In a second patent case (filed in the United States), Apple sought $2 billion in damages from Samsung for infringing on its cell phone patents for the slide-to-unlock feature and autocorrect.

Samsung countersued Apple for infringing on its cell phone patent for photo and video folders.

Samsung was found to have infringed on Apple’s patents on the slide-to-unlock features and autocorrect. Apple was awarded $120 million dollars for the patent infringement. Apple was found to have violated Samsung’s cell phone patent for photo and video folders and Samsung was awarded $158,000.

2. Google the case discussed in the video clip (the second Apple case against Samsung).

Has it been appealed? If so, what was the outcome of the appeal?

Answer: Answers will change over time. On August 2, 2015, there was an appeal pending in the Court of Appeals for the Federal Circuit. See http://www.reuters.com/article/2015/05/19/samsungapple-appealidUSL1N0Y90PU20150519.

3. According to Chapter 15 and the video clip, why is intellectual property, including patents, important to corporations and why would Apple file lawsuits for patent infringement?

Answer: Ownership rights in intellectual property, including patents, are more valuable to companies than tangible assets. In the digital age, the value of the world’s intellectual property exceeds the value of physical property, such as machines and houses. According to the video clip, the lawsuit was a battle for market dominance between the two biggest cell phone manufacturers in the cell phone market. The company who controls the patents on cell phones controls the market for them.

4. According to Chapter 15, what is the difference between a patent and a copyright?

What is a trademark? Trade dress?

Answer: The difference between a patent and a copyright is what is protected. Patents protect inventions and designs, and copyrights protect literary and artistic works or productions (including software), but not ideas. (See p. 473.)

A trademark is a distinctive mark, motto, or emblem that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so their goods can be distinguished from the goods of other manufacturers and merchants. Examples of

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

153

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 15: Contracts and Intellectual Property Law

trademarks are brand-name labels on jeans, luggage, shoes, and other products.

Generally, to be protected under trademark law, a mark must be distinctive.

A distinctive mark might consist of an uncommon or invented word (such as Xerox, Exxon, or Google) or words used in an uncommon or fanciful way. (See p. 476.)

Trade dress is an extension of a trademark. It applies to the look and feel of a product or service.

For example, Home Depot stores have orange signage. Because the company has invested in developing that distinctive look, and it is well recognized by consumers, other home supply stores cannot imitate the orange motif claimed by Home Depot.

(See p. 476.)

5. Do you think that Samsung phones copy the trade dress of iPhones? Why or why not?

Answer: Students’ opinions will vary. Answers should discuss the appearance of both types of phones. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

154

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 16: Real Property and Insurance Law

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 16: Real Property and Insurance Law

Table of Contents Answers to the End-of-Chapter Questions .............................................................................. 155 Questions for Review ............................................................................................................................ 155 Ethics Question...................................................................................................................................... 157 Practice Questions and Assignments..................................................................................................... 157 Group Project ........................................................................................................................................ 160 Video Questions .................................................................................................................................... 160

Answers to the End-of-Chapter Questions Questions for Review 1. Explain the difference between real property and personal property. What is a fee simple? List and define the other ways in which ownership rights in property can be held.

Answer: Real property, or real estate, is land and all things attached to the land (such as trees and buildings), as well as the minerals below the surface of the land and the air above it. Personal property is all other property, either tangible or intangible. A fee simple is complete ownership of property. An owner in fee simple is entitled to use, possess, or dispose of the real or personal property (by sale, gift, or other means) however he or she chooses during his or her lifetime. On the owner’s death, the interests in the property descend to the owner’s heirs. Some other ways in which ownership rights in property can be held include a tenancy in common, a joint tenancy, a life estate, a tenancy by the entirety, community property, and future interest.

2. Explain what law governs the sale of real property. Describe the basic steps involved in the sale of real estate. What role does an escrow agent play?

Answer: The common law of contracts as well as state (and, to a limited extent, federal) statutory law govern the sale of real property.

The basic steps involved in the sale of real estate include the following: •

Buyer’s purchase offer: The buyer submits an offer to purchase the seller’s property. The offer may be conditioned on, for example, the buyer’s

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

155

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 16: Real Property and Insurance Law

ability to obtain financing or on satisfactory inspection of the premises.

Included with the offer is earnest money offered by the buyer to indicate a serious offer.

•

Seller’s response: If the seller accepts the buyer’s offer, then a contract is formed. The seller could also reject the offer or make a counteroffer that modifies the buyer’s terms. The buyer may accept or reject the seller’s counteroffer or make a counteroffer that modifies the seller’s terms.

•

Purchase and sale agreement: Once an offer or a counteroffer is accepted, a purchase and sale agreement is formed.

•

Title examination and insurance: The title examiner investigates and verifies the seller’s rights in the property and discloses any claims or interests held by others. The buyer (and/or seller) may purchase title insurance to protect against a defect in title.

•

Closing: After financing is obtained and all inspections have been completed, the closing takes place. The escrow agent (such as a title company or bank) transfers the deed to the buyer and the proceeds of the sale to the seller. The proceeds are the purchase price less any amount already paid by the buyer and any closing costs to be paid by the seller. The closing costs include fees charged for services performed by the lender, escrow agent, and title examiner. The purchase and sale of the property are then complete.

The escrow agent, which may be a title company, bank, or special escrow company, acts as a neutral party in the transaction and facilitates the sale by allowing the buyer and the seller to complete the transaction without having to exchange documents and funds directly with each other.

3. What are the various classifications of insurance?

Answer: Insurance is classified according to the nature of the risk involved. Fire insurance, auto insurance, and life insurance apply to different types of risk and protect against different losses.

4. Define an insurable interest. How does an insurable interest arise in property?

In another’s life?

Answer: Insurable interest means an interest in a person’s life or well-being or in property that is sufficiently substantial (financially) to justify insuring against injury or death or damage to the property. One has an insurable interest when one would sustain financial loss from a property’s destruction or a person’s death.

5. What is the difference between an insurance agent and an insurance broker?

Why is this difference significant for people seeking insurance coverage?

Answer: Insurance is obtained through an agent who works for an insurance company or a broker who is an independent contractor. When a broker deals with an insured,

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

156

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 16: Real Property and Insurance Law

he or she is the agent of the applicant, and not an agent of the insurance company. An insurance agent is an agent of the insurance company, and not the applicant.

6. What are some of the tasks a paralegal, who assists in insurance-related litigation, might perform?

Answer: Some of the tasks that a paralegal who assists in insurance-related litigation might perform include: • • • • •

Research insurance clauses in relation to specific claims.

Interact with experts, witnesses, and clients to obtain factual information about events giving rise to insurance claims.

Obtain medical records concerning a client who needs assistance in obtaining payment from the insurer.

Create, review, or prepare insurance application forms or insurance policies.

Schedule medical appointments for health-insurance claimants.

[return to top]

Ethics Question Joanne Dorman works as a paralegal in the claims department of an automobile insurance company. She is asked to review a claim brought by Derek Farmer, her nephew. Derek is a college student with few financial resources. Joanne’s sister (Derek’s mother) told Joanne that Derek broke his windshield recently when he accidentally ran into a mailbox beside the road leading to their rural home. In the claim that she is reviewing, however, Derek states that a rock hit his windshield. Joanne understands immediately what Derek is trying to do. Derek’s policy states that his collision coverage (which would apply to the mailbox accident) has a $500 deductible. His comprehensive coverage (which would apply if a rock had hit his windshield) has a deductible of only $50. Derek is obviously trying to avoid having to pay the full $500 deductible, which he can ill afford. In contrast, the insurance company could easily absorb the extra cost.

What should Joanne do in this situation?

Answer: Joanne is obligated to report the misrepresentation to the company. However, she should discuss this issue with Derek first so that he might correct his statement. [return to top]

Practice Questions and Assignments 1. Assume that John submits an offer to Lisa to purchase Lisa’s home for $150,000.

Lisa responds to John’s offer with a counteroffer: She will sell John her home for $175,000. John then offers to purchase the home for $165,000, so long as he can obtain a mortgage and the house does not have termites. Lisa accepts the offer.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

157

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 16: Real Property and Insurance Law

In each of these transactions, who is the offeror, and who is the offeree? At what point is a contract for the sale of the home formed?

Answer: John is the first offeror when he offers to purchase Lisa’s home for $150,000; at this point, Lisa is the offeree. Lisa’s response is a counteroffer, and at this point, Lisa is the offeror and John is the offeree. When John counteroffers $165,000 for the home, he is again the offeror, and Lisa is again the offeree.

At the point that Lisa accepts John’s counteroffer of $165,000, the contract is formed, with the conditions that John can obtain a mortgage and the inspection does not reveal termites. The contract needs to be in writing, however, because all contracts for the sale of real property must be in writing to satisfy the Statute of Frauds.

2. Using the material presented in Exhibit 16.4, A Sample Deed, and the following facts, draft a deed to real property.

• At a closing on January 22, 2022, Roberto Alvarez and Paloma Alvarez, husband and wife, of 987 Packard Street, Galveston, Texas, transfer their beachfront condo to Javier and Eduardo Gomez, brothers, for consideration of $250,000 cash. Javier Gomez lives at 10101 Summit Place, New City, Texas. Eduardo Gomez’s address is 99901 Hill Street, Casper, Texas. The Gomez brothers will own the condo as tenants in common.

• The legal description of the property is Lot 91 of Whiteacre Subdivision, Galveston County, Texas, according to the plat map contained in volume 89, pages 123–129, of the Plat Records of Galveston County, Texas.

• The conveyance with a warranty is expressly made subject to the Easements and Restrictions of Record in volume 7877, page 456, and volume 9988, page 431, of the Real Property Records of Galveston County, Texas, and to any other restrictions and easements affecting the property that are of record in Galveston County, Texas.

• The notary public who will acknowledge the deed is Rosemary Potter, and her commission expires January 31, 2023.

Answer: Formats will vary according to states. Students should be encouraged to use their own state’s format, but the sample deed found in Exhibit 16.4 may also be used.

3. Identify the types of ownership rights described in the following statements. a. John and Linda, a brother and a sister, jointly own a cottage that they inherited from their mother. They have rights of survivorship. b. Ja’neen conveys her townhouse to her mother for as long as her mother lives.

On her mother’s death, the property is to go to Ja’neen’s daughter. c. Alya owns her home, and she can use, possess, or dispose of it as she pleases.

On Alya’s death, the property will descend to her heirs. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

158

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 16: Real Property and Insurance Law

d. John Tully and Sam Marsh jointly own a large farm in Iowa. If either of them dies, the heirs of the deceased owner will inherit that owner’s share of the farm.

Answer: a. Joint tenancy. b. Life estate to mother, future interest to daughter. c. Fee simple. d. Tenancy in common.

4. Identify the following steps in a real estate sales transaction: a. An offer or counteroffer is accepted. b. Title to the property is reviewed to determine the seller’s ownership interest and to determine if any liens against the property exist. c. The buyer applies for financing at a bank or mortgage company. d. A house is inspected to see if it needs repairs exceeding $1,000, such as roof repairs or basement waterproofing. e. The buyer tenders a sum of money, along with an offer.

Answer: a. Purchase and sale agreement is formed. b. Title examination. c. Financing. d. Inspection of the premises. e. Earnest money.

5. John’s Used Cars, Inc., sold Willie a 2018 Cadillac in return for $5,500 and what turned out to be a stolen 2014 Cadillac. (Willie provided a fraudulent title for the stolen car.) Hank bought the 2014 Cadillac from John’s Used Cars without knowing of the fraudulent title or that the car had been stolen. He insured it against theft and damage. Hank’s Cadillac was stolen from him about three weeks later. His insurance company refused to pay Hank for the loss, claiming that he did not have an insurable interest in the vehicle because it had been stolen at the time Hank bought it. Using the definition in the chapter on insurable interests, analyze whether Hank has an insurable interest in the car. Would it have made a difference if Hank had known the car had been stolen at the time he purchased it? Can Hank make a claim against John’s Used Cars for selling him a stolen car?

Answer: For real and personal property, an insurable interest exists when the insured derives a monetary benefit from the continued existence of the property, such as a car. Since Hank paid money for the car, its loss definitely has a monetary impact on him and he has an insurable interest under the theft insurance policy.

Also, Hank was the victim of fraud in that he was sold something that turned out to be stolen property. Therefore, Hank has a valid claim against the auto sales

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

159

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 16: Real Property and Insurance Law

company, which would likely be based in contract law and/or the tort of fraudulent misrepresentation. [return to top]

Group Project This project requires students to review leases of real property, such as houses or apartments. Students one, two, and three should each select a lease to examine. They may find a lease online, buy one at a local office supply store, or use their own lease if they prefer. The leases should contain state-specific provisions. Each student will summarize the provisions in the lease he or she selected. Student four will create a chart comparing the provisions of the three leases and present it to the class.

Answer: Answers will vary. [return to top]

Video Questions Watch the “Foreclosure Scam” video clip for this chapter and answer the following questions.

1. From the information provided in the video clip, what is adverse possession?

Answer: The video defines adverse possession as allowing the takeover of abandoned property after many years of occupation.

2. Using Westlaw, Lexis, or any online legal research database available to you, run a search to find out how long a person must occupy property in order for it to be subject to a claim of adverse possession in your state. Are there other requirements?

If so, what are they?

Answer: Answers will vary by state.

3. Using the material in the chapter on the steps involved in the sale of real estate and the documents used to purchase a house, would you purchase a house with the only document provided by the seller being an “Affidavit of Adverse Possession,” as the buyer in the video clip did? Explain which documents the buyer and seller should have exchanged in order for the buyer to have obtained title to the house.

Answer: Students should answer that they would not buy a house on an affidavit of adverse possession. In residential real estate transactions, the documents typically exchanged include a buyer’s purchase offer, followed by the seller’s acceptance or counteroffer, which then becomes a purchase and sale agreement. A title examination © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

160

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 16: Real Property and Insurance Law

takes place to review who owns the property, to verify the seller’s rights in it, and to disclose any claims or interests held by others. The buyer may purchase title insurance. Financing is typically obtained through a bank or other lender—although land contracts or private sales and financing may occur—and at the closing, title is transferred by a deed to the buyer and the proceeds of the sale are transferred to the seller. At the very least, the buyer should walk away with a deed or a memorandum of land contract.

Instructor’s note: This discussion gives you the opportunity to present state-specific material on land contracts, which is not covered in the chapter.

4. Alfonso Carillo, the man accused in the video of selling houses on affidavits of adverse possession, was charged with fifteen counts of forgery, theft, and filing false documents, so his sales were not valid under the requirements of the state adverse possession law in Colorado. What is likely to happen to the people who were the victims of this foreclosure scam?

Answer: Unfortunately, the victims of this scam will be evicted from the homes that they bought and will lose whatever money they put down for a down payment and any monthly payments they made to him. A newspaper article indicated that Alfonso Carillo was targeting illegal immigrants in Colorado, so they were unlikely to pursue him to get their money back. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

161

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 17: Family Law and Estates

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 17: Family Law and Estates

Table of Contents Answers to the End-of-Chapter Questions .............................................................................. 162 Questions for Review ............................................................................................................................ 162 Ethics Question...................................................................................................................................... 165 Practice Questions and Assignments..................................................................................................... 165 Group Project ........................................................................................................................................ 168 Video Questions .................................................................................................................................... 168

Answers to the End-of-Chapter Questions Questions for Review 1. What are the rights and duties of parents with respect to their children? What are the legal obligations of parents to children born out of wedlock and to adopted children?

Answer: Parents are required to care for and support their children until they reach the age of majority. That is, they are obligated to provide food, shelter, clothing, medical care, and other necessities.

Parents of children born out of wedlock, or adopted children, have the same obligations as other parents. The biological father has a legal obligation to provide support for the child that is identical to that of a married father. The parents must care for and support their children until they reach the age of majority.

2. What are the requirements for a valid marriage? On the termination of a marriage, how is a couple’s property divided? What is separate property?

Community property?

Answer: The general requirements for a marriage vary from state to state but usually include: • • • •

Parties must obtain a marriage license from the state government.

Half of states require a blood test to check for certain diseases.

Some states require couples to go through a short waiting period.

A marriage ceremony is required in most states, including a public statement of the agreement to marry.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

162

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 17: Family Law and Estates

•

A marriage license must be recorded with a government official after the service.

When a marriage is terminated, the property owned by the couple (including their debts) is divided based on the requirements of state law. In community property states, it is usually divided in half.

Separate property is that property that a spouse acquired before the marriage, plus gifts or inheritance acquired during the marriage. This property belongs to the spouse personally and not to the marital unit. The ownership right in separate property may be lost, however, if it is combined with marital property. On dissolution of the marriage, separate property is not divided but retained by the owner.

Community property is that property acquired during the marriage (not including inheritances or gifts received by either party during the marriage). Even if only one party supplied all the income and assets during the marriage, both spouses share equally in ownership (half and half).

3. List the requirements of a valid will. Why is it important to check the laws of your state for the requirements of a will? What laws govern the distribution of the estate of a person who dies without a valid will?

Answer: The requirements of a valid will are as follows: • •

• •

•

The testator must have testamentary capacity. In other words, the testator must be of legal age (usually 18) and sound mind at the time the will is made.

Generally, a will must be in writing. A will can be handwritten (called a holographic will). In a few states, nuncupative wills (oral “deathbed” wills made before witnesses) that dispose of personal property are permitted.

A will must be signed by the testator, generally at the end of the document.

A will must be witnessed. The number of witnesses (often two, sometimes three), their qualifications, and the manner in which the witnessing must be done are generally determined by state law.

In some states, a will must be published by the maker making an oral declaration to the witnesses that the document they are about to sign is the maker’s “last will and testament.”

It is important to check the laws of your state for the requirements of a will because states’ requirements for wills, witnesses, publication, and the like vary widely, as do the requirements for probating an estate.

The state’s laws of intestate succession govern the distribution of the estate of one who dies without a valid will.

4. Why and how are wills probated? What are the duties of a personal representative?

Answer: To probate (prove) a will means to establish its validity and carry the administration of the estate through a process supervised by a probate court. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

163

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 17: Family Law and Estates

Probate procedures may vary depending on the size of the decedent’s estate. For smaller estates, most state statutes provide for the distribution of assets without formal probate proceedings. Faster and less expensive methods are then used.

The intent to transfer property to an heir may be established by affidavit, which is a statement of facts written down and sworn to voluntarily in the presence of an official authorized to affirm it. In addition, some state statutes provide that title to cars, savings and checking accounts, and certain other property can be passed to heirs merely by filling out forms. Property held as joint tenants—or tenants by the entirety (see Chapter 16)—does not go through probate but passes automatically to the other tenants or tenant.

For larger estates, formal probate proceedings are normally undertaken, and the probate court supervises the settlement of the decedent’s estate. Additionally, in some situations—such as when a guardian for minor children or for an incompetent person must be appointed and a trust has been created to protect the minor or the incompetent person—more formal probate procedures cannot be avoided. Formal probate proceedings may take several months to complete.

Probate laws vary from state to state.

If the will named a personal representative, that person is called the executor. The personal representative pays debts owed by the decedent and arranges for the estate to pay taxes. Once the assets have been distributed, an accounting is rendered to the court, the estate is closed, and the personal representative is relieved of any further responsibility or liability for the estate.

5. What is a trust? List and describe the various types of trusts discussed in this chapter. What are some other estate-planning devices?

Answer: A trust is a method of having one person or entity hold legal title to property for another’s benefit.

The various types of trusts discussed in this chapter include: • •

•

• •

A testamentary trust: a trust that is created by a will and that does not take effect until the death of the testator (the maker of the will).

A living trust, or inter vivos trust: a trust executed by a grantor during his or her lifetime; this form of trust may be an attractive estate-planning option because living trusts are not included in the property of a decedent’s estate that is probated.

A life insurance trust: a trust that owns a life insurance policy, which usually covers the life of the grantor of the trust; when the insured party dies, the life insurance proceeds go into the trust and are used in the manner provided by the instructions of the grantor.

A charitable trust: designed for the benefit of a segment of the public or the public in general.

An asset protection trust is used by someone concerned with potential liability risks, to put assets into a trust to shield them from potential creditors.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

164

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 17: Family Law and Estates

•

A spendthrift trust: used to protect beneficiaries from themselves, in that the beneficiary has limited right of access to money in the trust; the trustee who oversees the trust usually has authority to decide how much money goes to the beneficiary at any given time.

Other estate-planning devices include arranging to hold title to certain real or personal property as a joint tenant (with rights of survivorship) with the spouse or other person; making gifts to children or others while one is still living; or taking out life insurance policies, in which the proceeds of the policies go directly to the beneficiaries after the death of the policyholder and are not involved in the probate process. [return to top]

Ethics Question 1. James Simpson, an attorney, has represented Miss Morgan for forty years. She is now eighty-three years old and is revising her will. She has a sizeable estate. Miss Morgan instructs her attorney to include a bequest in the will to James Simpson in the amount of $50,000. Can Simpson prepare the will with this bequest in it? Why or why not?

Answer: No, Attorney Simpson cannot prepare the will with this bequest in it. He cannot accept a $50,000 bequest from his client because it is a conflict of interest and is expressly prohibited in the ABA Model Rules.

2. Cynthia Warner works as a paralegal for a sole practitioner, Samuel Weingarten.

Weingarten’s practice consists mainly of estate planning and probate. Today, Weingarten has received a check for $100,000 from the sale of real property that was in an estate that he is probating. Weingarten instructs Cynthia to deposit the check in the firm’s bank account—not the client trust account—because he has some bills to pay. Is this ethical?

Answer: No, this is not ethical. It violates the rule prohibiting the commingling of clients’ assets with those of the law firm. [return to top]

Practice Questions and Assignments 1. Matthew, an eleven-year-old boy with mild autism, was regularly bullied at school by another boy. In one instance, the bully pushed Matthew down on the playground, resulting in an injury that required stitches. Most recently, the bully beat Matthew badly enough that he required hospitalization for a broken arm and a broken nose. Matthew’s parents decide that suing the parents of the bully might resolve the situation. Using the material in the chapter on the liability of parents for their

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

165

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 17: Family Law and Estates

children’s actions, can Matthew’s parents sue? Discuss what the likely outcome will be.

Answer: Parents are sometimes held liable for the wrongful acts of their children, but it tends to happen when the parents have prior knowledge of similar behavior, or the parents participated in, or encouraged the illegal acts. In this case, Matthew’s parents would need to establish that the parents of the bully knew of his misconduct and assaults on other children as well as Matthew in order for there to be liability. Note that state laws vary widely on this issue.

2. Using the no-fault divorce material discussed in the chapter, which of the following are grounds for a no-fault divorce? a. Irreconcilable differences. b. Cruelty. c. Living separately for a period of time specified by state statute (ranging from six months to three years). d. Adultery.

Answer: A no-fault divorce is one in which neither party is deemed to be at fault for the breakdown of the marriage. Irreconcilable differences (a) and living separately for a period of time specified by a state statute (c) are grounds for a no-fault divorce.

3. A woman agrees that in exchange for $10,000, she will be artificially inseminated, conceive a child, carry the child to term, and after delivery of the baby, surrender it to the father and his wife. The mother will terminate her parental rights, and the father’s wife will adopt the child. If the father and his wife contracted with the surrogate mother for the baby and the surrogate mother refused to give up the baby, how might a court use existing custody laws to resolve the dispute? How might the contract be attacked as invalid?

Answer: Existing custody laws could, and in fact have been, used to resolve a custody dispute between the surrogate who would not give up custody and the couple she contracted with, in In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988). The New Jersey Supreme Court looked to the “best interests of the child” factors to determine custody in this case. Due to the emotional and financial stability of the childless couple, the length of time and relationship developed when Baby M had spent one and half years with them, along with their nurturing environment, compared to the emotional and financial instability of the surrogate mother as evidenced by her kidnapping Baby M and taking her to Florida in violation of the court order to turn Baby M over to the couple and telephone calls where the surrogate mother threatened to kill Baby M, the couple was awarded custody. The surrogate mother was given parenting time with the child.

This contract could be attacked if surrogacy contracts are illegal in the state where this occurred because illegal contracts are invalid and unenforceable. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

166

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 17: Family Law and Estates

Additionally, this contract, due to the $10,000 payment to the surrogate, provides for what is essentially selling a baby—an argument that could be made to invalidate the contract. This argument was part of the reasoning for invalidating the surrogacy contract in the Baby M case. If the contract were worded to provide for the payment of medical fees of $10,000, it is more likely to be found valid. This could make it possible for a sister or other family member to carry a child for a relative who cannot have children.

In favor of enforcing the contract is the argument that childless couples should be able to have surrogates so that they can have children and that the enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation that could drag on for the first several years of the child's life.

Surrogacy contracts are heavily regulated by the states that allow them and requirements vary considerably, but some states allow them for no compensation.

4. Identify each of the following types of trusts: a. Barbara inserts a trust provision in her will requiring that all of her property be held in trust for her children until they reach the age of thirty. b. Steve, who is seventy years old, transfers his home into a trust for the benefit of his children and their spouses. c. Kathy creates a trust in her will for cancer research.

Answer: a. Spendthrift testamentary trust. b. Inter vivos trust. c. Charitable trust.

5. Identify which of the following types of estate-planning devices allow property to be transferred outside the probate process: a. Living trusts. b. Life insurance policy. c. Testamentary trusts. d. Holding property as joint tenants with rights of survivorship. e. Gifts to children.

Answer: Living trusts, a life insurance policy, and holding property as joint tenants are three estate-planning devices that allow property to be transferred outside of the probate process. Also, giving gifts to children or others while one is still living will avoid the probate process. A testamentary trust has a trustee who maintains legal title to the trust property, but the actions of the trustee are subject to judicial approval, so this type of trust does not fall outside of the probate process.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

167

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 17: Family Law and Estates

[return to top]

Group Project This project requires the group to review the status of grandparents’ visitation as a result of the United States Supreme Court decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

Student one will provide the legal issue addressed in Troxel v. Granville and outline the facts of the case. Student two will summarize the decisions of all courts that heard the case. Student three will describe the influence of Troxel v. Granville on state statutes regulating grandparent visitation rights, by locating an article online discussing the effect that the Troxel decision had on the future of grandparent visitation rights. Student four will sum up how grandparents can try to obtain visitation rights and then compile the group’s answers for submission.

Answer: For students one and two, in Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060 (2000), the Supreme Court struck down a Washington grandparent visitation statute because it unconstitutionally infringed on parents' fundamental constitutional rights. According to the Supreme Court, “the interest of parents in the care, custody and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.” The Court stated that statutes allowing grandparent visitation orders to be imposed over parental objection "present questions of constitutional import." In fact, the Court flatly declared that parents have a fundamental right to the "care, custody and control of their children," and that grandparent visitation cases implicate this fundamental right. That being said, some states (Michigan, for example) have enacted grandparenting rights statutes that allow grandparents who have been denied grandparenting time to petition the family court for such time, within the parameters set by Troxel. Answers for students three and four will vary. This article was available on Justia.com on 7/26/20, the date this Instructor’s Manual chapter was created and may be cited by students three and four. https://verdict.justia.com/2016/09/27/limits-grandparent-visitation-continuingripples-troxel-v-granville [return to top]

Video Questions The video clip “The Supreme Court Legalizes Gay Marriage in all 50 States” shows part of a news broadcast reporting on the decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), where the U.S. Supreme Court ruled 5-4 that states may not outlaw same-sex marriage.

The Court also ruled that all fifty states must recognize same-sex marriages performed in other states. Watch the video clip and answer the questions below. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

168

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 17: Family Law and Estates

1. What are the procedural requirements for a valid marriage as described in Chapter 17? What are the legal and practical benefits of being married?

Answer: The couple must be currently unmarried, not closely related by blood, and at least eighteen (unless they have parental consent or are emancipated). Certain procedures may be required by the state for a marriage to be legally recognized, including a marriage license, a blood test, a waiting period, and a marriage ceremony, after which the license must be recorded. A minority of states recognize common law marriages and allow parties who hold themselves out to the world as married to be married, without a ceremony or license.

Marriage confers certain legal and practical advantages. The marriage establishes the rights and duties of the spouses (related to spousal support and property ownership), as well as of any children of the marriage. Married couples may also have an easier time obtaining insurance and credit and adopting children.

Additionally, some employers offer health insurance to spouses but not to unmarried partners. Married people can also obtain divorces and child support and custody orders. Married people are the “next of kin” to their spouses, so if a spouse dies, they have the right to be with them and make end-of-life decisions together. The last two items (divorce and next-of-kin) are not mentioned in the chapter, but students may mention these rights.

2. What would the legal and practical effect on same-sex couples who were married in states that allowed same-sex marriage have been if they were to have moved to a state where it was illegal before the Supreme Court’s decision (covered in the video) in Obergefell?

Answer: Same-sex couples who moved from states recognizing same-sex marriage to states that did not recognize same-sex marriage before the Supreme Court decision in Obergefell would lose their marital rights related to spousal support, property ownership, health insurance, and adoption. One parent might not be recognized, legally, as an adopted child’s parent (without a double adoption—not discussed in Chapter 17). They would likewise be unable to divorce and obtain child support and custody orders. They might also lose the right to be with their partner when the partner was dying, to help make end-of-life decisions.

3. How has the Supreme Court’s decision in Obergefell changed the outcome to the answer to Question 2?

Answer: The Supreme Court’s decision in Obergefell changed the outcome to the answer to Question 2 by requiring all states to allow same-sex marriage, thus making same-sex marriage the same as opposite-sex marriages, which are recognized by all states. If a same-sex couple moves to a different state, their marriage will be recognized and they will retain their marital (and parental) rights.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

169

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 17: Family Law and Estates

4. The reporter in the video indicates that the Justices who dissented had said previously that same-sex marriage should be a states’ rights issue. Since marriage is regulated by the states, should the Supreme Court have declined to hear the case and let the states decide the issue instead? Why or why not?

Answer: Students’ answers will vary. Students who support the U.S. Supreme Court’s decision may make the argument in the answer to Questions 2 and 3, and may add the fact that 57 percent of the people in the United States support same-sex marriage and that thirty-seven states had already recognized it, so why not let the Supreme Court decide it? Students favoring states’ rights will argue that marriage is currently regulated by the state governments and it’s up to the people to decide, so the Supreme Court should have declined to hear the case. See also the answer to this question in the same video clip in Chapter 5. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

170

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 18: Business Organizations and Employment Law

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 18: Business Organizations and Employment Law

Table of Contents Answers to the End-of-Chapter Questions .............................................................................. 171 Questions for Review ............................................................................................................................ 171 Ethics Question...................................................................................................................................... 174 Practice Questions and Assignments..................................................................................................... 175 Group Project ........................................................................................................................................ 178

Answers to the End-of-Chapter Questions Questions for Review 1. List and describe the three most common traditional forms of business entities. How is each entity created and terminated? Do the owners have personal liability? If so, describe.

Answer: The three most common forms of business organization are the sole proprietorship, the partnership, and the corporation. Each form of business organization is described below, as well as the methods for creating and terminating each type of entity: •

•

Sole proprietorship: A sole proprietorship is the simplest form of business.

The sole proprietor owns the business, is entitled to all of the business’s profits, and bears personal responsibility for all of the business’s debts and other obligations. A sole proprietorship does not require any formal creation and can be used by anyone who does business. A sole proprietorship terminates on the owner’s death or whenever the owner ceases doing business.

Partnership: A partnership arises when two or more individuals undertake to do business together as partners. Each partner owns a portion of the business and shares jointly in the firm’s profits or losses. Partners are personally liable for the debts and obligations of the business if the business fails. Partnerships are created by written or oral agreement of the parties and, likewise, may be terminated by agreement. Other events, such as the death or bankruptcy of a partner, may cause the termination as well.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

171

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 18: Business Organizations and Employment Law

•

Corporations: Although owned by individuals, a corporation is a separate legal entity that is created and recognized by state law. In the eyes of the law, a corporation is a legal “person” that enjoys many of the rights and privileges that a U.S. citizen enjoys. Corporations have shareholders, the owners of the business; directors, persons elected by the shareholders to direct corporate affairs; and officers, persons hired by the directors to manage the day-to-day operations of the corporation. A corporation is created by a state-issued charter. A corporation may be terminated at a time specified in the articles of incorporation, by agreement of the shareholders and board of directors, or by court decree. Shareholders have limited liability and are not personally liable for the debts of the corporation (beyond the amount of their investments).

2. What is a limited liability company? What advantages does this business organizational form offer to businesspersons? How does a limited liability company differ from a limited liability partnership?

Answer: A limited liability company (LLC) is a hybrid form of business enterprise that combines the pass-through tax benefits of S corporations and partnerships with the limited liability of limited partners and corporate shareholders.

A major advantage of the LLC is that it does not pay taxes as an entity. Rather, profits are passed through the LLC and paid personally by the owners of the company, who are called members instead of shareholders. Another key advantage is that the liability of members is limited to the amount of their investments. In an LLC, members are also allowed to participate fully in management activities. Also, corporations and partnerships, as well as foreign investors, can be LLC members, and there is no limit on the number of members of the LLC. Flexibility is an attractive advantage of the LLC because the members themselves can decide how to operate various aspects of the business through a simple operating agreement.

The limited liability partnership (LLP) is similar to the LLC. The difference is that the LLP is designed for professionals, such as attorneys, who normally do business as partners in a partnership. Like LLCs, LLPs must be formed and operated in compliance with state statutes. The appropriate form must be filed with a central state agency, usually the secretary of state’s office, and the business’s name must include either “Limited Liability Partnership” or the initials “L.L.P.” The major advantage of the LLP is that it allows a partnership to function as a pass-through entity for tax purposes but limits the personal liability of the partners for partnership tort liability.

3. How does an agency relationship arise? What is the difference between an employee and an independent contractor in an agency relationship? When is a principal liable for the contracts formed by an agent? For the torts of the agent?

Answer: An agency relationship arises when one party, called the agent, agrees to © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

172

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 18: Business Organizations and Employment Law

represent or act for another party, called the principal. Normally, all employees who deal with third parties are deemed to be agents. Agency relationships can also arise between employers and independent contractors (such as real estate agents) who are hired to perform special tasks or services. An independent contractor is a person who is hired to perform a specific undertaking but who is free to choose how and when to perform the work. Generally, courts look at the degree of control and supervision the employer exercised over the work performed to determine if the individual was an employee or an independent contractor. As a result, an independent contractor may or may not be an agent.

A principal is liable for the contracts formed by an agent if: • • •

The agent was authorized to enter into the contract.

An agent was expressly authorized, either orally or in writing, to form certain contracts.

The agent’s authority was implied by custom—that is, an agent typically would have the authority to do whatever was done, as it would be considered customary or necessary to fulfill the purpose of the agency.

If an agent is not authorized to enter into a contract on behalf of the principal, then the principal will be bound only if he or she voluntarily accepts, or ratifies, the contract.

The common law doctrine under which a principal may be held liable for the torts of the agent is respondeat superior. Under this doctrine, the principal-employer is liable for any harm caused to a third party by an agent-employee within the scope of employment. This is not true for independent contractors.

4. What is a fiduciary obligation? In which relationships discussed in the chapter does a fiduciary obligation arise?

Answer: An agency is a fiduciary relationship, one involving a high degree of trust and confidence. Because of this, certain fiduciary duties arise whenever an agency relationship comes into existence. Basically, this means that each party owes the other the duty to act honestly and to pursue faithfully the objective of the agency.

Fiduciary relationships arise between partners and in agency relationships— that is, between a principal and an agent. The chapter notes that fiduciary obligations arise in the following relationships: partnerships (the partners), corporations (the directors and officers), and any agency relationship (both parties).

5. Which federal statutes prohibit employment discrimination? What kinds of discrimination are prohibited by these statutes? Which federal agency handles claims of employment discrimination?

Answers: The following federal statutes prohibit employment discrimination: •

Title VII of the Civil Rights Act (1964) prohibits employment discrimination against job applicants and employees on the basis of race, color, national

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

173

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 18: Business Organizations and Employment Law

•

•

•

•

origin, gender, or religion. The courts have interpreted Title VII to prohibit both intentional and unintentional discrimination. The courts have also extended Title VII protection to those who are subject to sexual harassment in the workplace—or harassment of any employee on the basis of race, color, national origin, religion, age, or disability.

The Age Discrimination in Employment Act (1967) prohibits employment discrimination on the basis of age (against employees or job applicants between the ages of forty and seventy).

The Pregnancy Discrimination Act of 1978 amended Title VII to expand the definition of gender-based discrimination to include discrimination based on pregnancy.

The Americans with Disabilities Act (1990) prohibits discrimination on the basis of disability against individuals qualified for a given job. Employers must reasonably accommodate the needs of persons with disabilities. Disabilities include heart disease, cancer, blindness, paralysis, AIDS, serious emotional illnesses, and learning disabilities.

The Family and Medical Leave Act of 1993 requires employers with fifty or more employees to provide their employees (except for key employees) with up to twelve weeks of unpaid family or medical leave during any twelvemonth period. During the employee’s leave, the employer must continue the worker’s health-care coverage and guarantee employment in the same position or a comparable position when the employee returns to work.

The Equal Employment Opportunity Commission is the federal agency that handles claims of employment discrimination. [return to top]

Ethics Question Peter works as a paralegal for a law firm. The firm’s client is suing her former employer for wrongful termination of the employment relationship. The client has financial records that prove that her supervisor authorized nondisclosure of income to the Internal Revenue Service. Disclosing these records would seriously affect her supervisor’s credibility and would strengthen the client’s case. Peter contacts the client to obtain the records. She refuses, fearing the effect it might have on her ability to find another job. Peter’s supervising attorney is adamant about the need to obtain these records.

The attorney is concerned that the firm might be guilty of malpractice if it fails to introduce this evidence. To whom is Peter obligated, the client or the firm? Why? How should Peter resolve this conflict?

Answer: A paralegal who works for the attorney-agent on the client’s behalf is both an agent of the attorney and a subagent of the client. Thus, a paralegal who works for

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

174

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 18: Business Organizations and Employment Law

a law firm has fiduciary duties to the firm as an agent and to the client as a subagent.

A paralegal should treat both the attorney and the client as principals and serve their interests with the utmost loyalty and care. Peter, therefore, is obligated to both the client and the firm. Peter needs to resolve this conflict by discussing the client’s concerns with his supervising attorney. Ultimately, it is up to the attorney to make the decision, and the attorney will most likely need to telephone the client to discuss her concerns and resolve the issue. [return to top]

Practice Questions and Assignments 1. Identify whether each of the business firms described below is a sole proprietorship, a partnership, or a corporation, and explain why: a. Terrence and Lars have owned a business together for three months.

Terrence contributed 60 percent of the capital needed to start the business, and Lars contributed the other 40 percent. Each owner is responsible for a proportionate share of the profits and losses of the business, and each owner participates in managing the business. b. Four wealthy individuals create a business for the purpose of funding the construction of a new commerce center to revitalize the downtown business district in their city. Each individual contributes 25 percent of the funds necessary for the project, and each individual is liable for only 25 percent of the firm’s losses. They all sign an agreement. c. Ana Ing, David Goldberg, and Mike Werner are all certified public accountants.

They decide to do business together. By the end of its first year, the firm has become very profitable. As a result, the firm has to pay a substantial amount in income taxes on its profits. d. Dr. Menendez practices medicine on his own; he has not incorporated his business. e. The Pear Co. is a for-profit business that has a charter issued by the state. The charter provides for the limited liability of the company’s owners.

Answers: a. This is a general partnership. Terrence and Lars are doing business jointly for a profit. Each is responsible for their proportionate share (Terrence 60 percent and Lars 40 percent) of the business. Partners in a general partnership each have the right to participate in the management of the business. Nothing is mentioned about a written partnership agreement, and one is not required for a general partnership. b. This is a limited partnership. The partners have all signed an agreement and are liable only to the extent of their investment. c. This is a professional corporation. Ing, Goldberg, and Werner are all professionals © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

175

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 18: Business Organizations and Employment Law

doing business together with the business entity paying taxes on its profits. If it were a partnership, the individuals would have to pay taxes. d. This is a sole proprietorship. Dr. Menendez is an individual doing business on his own, and he is not incorporated. e. This is a corporation. It has a charter issued by the state, and its owners have limited liability.

2. Michael Sánchez is an attorney who represents Aaron Tubman in his business ventures. Explain who is the principal and who is the agent in this relationship.

What duties does the principal owe to the agent? What does the agent owe to the principal?

Answer: An agency relationship arises when one person (called the agent) agrees to act for or in the place of another person (called the principal). In this case, Michael Sánchez is agreeing to act as a representative for Aaron Tubman, so Michael is the agent and Aaron is the principal. The principal must cooperate with the agent, provide safe working conditions for the agent, and reimburse the agent for work performed and for any expenses incurred on the principal’s behalf. The agent must perform his or her tasks competently, obey and be loyal to the principal, notify the principal of matters concerning agency, and render an accounting to the principal of how and for what purpose the principal’s funds were used.

3. Explain why the principal is (or is not) liable for the actions of the agent in each of the following situations: a. Attorney Arun Singh tells his paralegal, Aki Cho, to purchase litigation software. b. Attorney Jayne Sutterly leaves a written memo to her paralegal, David Hayes, instructing David to solicit bids for a computer network for the law firm from three computer consulting firms. David not only obtains three bids but also hires one of the firms to set up the network at a cost of $10,000. c. Paralegal Caitlin Bradley works for a sole practitioner and has office management duties in addition to her paralegal responsibilities. When the photocopier no longer functions, she enters into a lease for a new machine without discussing it with her supervising attorney. The cost of the new machine is the same as the cost of the old machine. Would it make any difference if the cost of the new machine were significantly greater than the cost of the old one?

Answers: a. Attorney Singh would be liable for his paralegal’s purchase of litigation software because he expressly authorized the paralegal agent to purchase it. The doctrine of respondeat superior imposes vicarious liability on Attorney Singh should any torts be committed by his paralegal in the course or scope of employment. b. Attorney Sutterly would only be liable if she ratified David Hayes’s actions. Based

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

176

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 18: Business Organizations and Employment Law

on contract liability, if an agent is not authorized to enter into a contract on behalf of the principal—as is the case here—then normally the principal will not be bound by the contract unless she voluntarily accepts it. c. It should not matter that the cost was significantly greater for the new machine because the office manager needs to have the authority to purchase supplies to fulfill her duties. The attorney may try to void the contract by arguing that the office manager was not authorized to enter into a contract for that amount.

Thus, the attorney’s argument would be that he is not bound by the contract unless he ratifies it. Again, based on contract liability, if the paralegal/office manager (the agent) was not authorized to enter into a contract on behalf of the attorney (the principal), then normally the attorney would not be bound by the contract unless he voluntarily accepts it.

4. Identify what type of employment discrimination, if any, is being practiced in each of the following hypothetical situations: a. Lana Ronsky, a paralegal in an all-male law firm, is the object of frequent sexual jokes and comments and occasional uninvited touching—all of which are offensive to her and make it difficult for her to do her job. b. Monica Pierson, a partner in a large law firm, interviews seven potential paralegals, including an Asian American. Although the Asian American is the best qualified for the job, Monica does not hire him because he speaks English with an accent, which might offend some of the firm’s clients. c. Diana Bekins, the manager of an insurance agency, makes it clear to Jacky McBride, a new sales representative, that she will promote him only if he provides sexual favors in return. d. A police department has a rule that only police officers who have been injured on the job may apply for light duty assignments. Six pregnant police officers, out of 150 on the force, were excluded from light duty assignments.

Answers: a. This is an example of hostile-environment harassment, which is prohibited under Title VII. b. This is an example of intentional discrimination based on national origin, which is prohibited under Title VII. c. This is an example of quid pro quo sexual harassment, which is prohibited under Title VII. d. This is an example of disparate impact discrimination, which is prohibited under Title VII. It also violates the Pregnancy Discrimination Act. 5. Samantha Elauf, a 17-year-old Muslim, wore a headscarf, or hijab, to a job interview with Abercrombie, a trendy clothing store for teenagers. During the interview, Ms. Elauf did not specifically request religious accommodation. Abercrombie did not hire Ms. Elauf on the grounds that wearing the scarf violated its “look policy” for © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

177

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 18: Business Organizations and Employment Law

members of the sales staff. Is it religious discrimination under Title VII to deny Ms. Elauf a job because she wore a headscarf? Was she required to request religious accommodation in order to have avoided discrimination?

Answer: This is from a 2015 Supreme Court case, E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 135 S.Ct. 2028, 192 L.Ed.2d 35 (2015). An article can be found at https://www.eeoc.gov/newsroom/abercrombie-resolves-religiousdiscrimination-case-following-supreme-court-ruling-favor (viewed on 7/28/20). The court’s opinion can be found online at https://www.supremecourt.gov/opinions/14pdf/14-86_p86b.pdf (viewed on 7/28/20), and a case brief can be found at https://www.oyez.org/cases/2014/14-86 (viewed on 7/28/20). The EEOC and Ms. Elauf prevailed since the company at least suspected that the applicant wore the headscarf for religious reasons. This was enough to allow her to sue under the federal employment discrimination law. [return to top]

Group Project Students will set up a limited liability company using the hypothetical information below, as well as forms from their state government’s website, if one is available. If not, consult a state formbook from a law library.

Roberto Hernandez, a 52-year-old mechanical engineer, lost his job. Unable to find similar work, he started a handyman business making repairs on rental properties.

Roberto had a friend who owned thirty-eight rental properties and was willing to hire him to make repairs and do remodeling on the properties. Roberto started his business as a sole proprietorship called Roberto’s R&R. He has done so well that he needs to hire a couple of carpenters and a painter to work for him. Roberto is concerned about possible liability, so he has consulted your supervising attorney, who has advised Roberto that he should form a single-member, limited liability company.

Student one is responsible for finding out if the name, Roberto’s R&R, is available for use. If so, he or she should print (or copy) and prepare the necessary forms to reserve it. If the name is not available, student one should recommend another name.

Student two is responsible for determining if an operating agreement is needed for a single-member, member-managed limited liability company. If so, student two should obtain and prepare such an agreement.

Student three is responsible for learning about the state filing requirements, procedures, fees, and form(s) that Roberto must file to create his LLC, including obtaining the U.S. mail address, e-mail address, or fax number to which the forms should be sent.

Students three and four are responsible for preparing the form(s) and explaining to © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

178

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 18: Business Organizations and Employment Law

the class how a limited liability company is established in your state. The purpose of the LLC should be any legal purpose for which a business may be established in your state.

The students should use your school’s address if an address is required. If a registered agent and duration of the business are required, the students should use Roberto’s name as agent, and “perpetual” duration if that designation is allowed under your state’s law.

Answer: Answers will vary. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

179

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 19: Bankruptcy and Environmental Law

Solution and Answer Guide Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4 Chapter 19: Bankruptcy and Environmental Law

Table of Contents Answers to the End-of-Chapter Questions .............................................................................. 180 Questions for Review ............................................................................................................................ 180 Ethics Question...................................................................................................................................... 184 Practice Questions and Assignments..................................................................................................... 184 Group Project ........................................................................................................................................ 187 Video Questions .................................................................................................................................... 187

Answers to the End-of-Chapter Questions Questions for Review 1. What are the goals of bankruptcy law? What are the three most important types of relief available for debtors under federal bankruptcy law?

Answer: Bankruptcy law has two main goals. The first is to provide relief and protection to debtors who have “gotten in over their heads.” The second is to provide a fair means of distributing debtors’ assets among the creditors.

The three most important types of relief available for debtors under the bankruptcy law are: •

Chapter 7—Provides for a liquidation proceeding, which is the selling of all nonexempt assets and the distribution of the proceeds to the debtor’s creditors.

•

Chapter 11—Governs reorganizations.

•

Chapter 13—Provides for the adjustment of debts by persons with regular incomes.

2. What is a liquidation proceeding under Chapter 7? How is it initiated? What is the difference between a voluntary bankruptcy and an involuntary bankruptcy? What is “means testing”?

Answer: A liquidation proceeding under Chapter 7 is the selling of all nonexempt assets and the distribution of the proceeds to the debtor’s creditors. This proceeding includes four major steps:

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

180

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 19: Bankruptcy and Environmental Law

1. The debtor in the liquidation bankruptcy states his or her debts and turns all assets over to a bankruptcy trustee.

2. The trustee sells the nonexempt assets and distributes the proceeds to creditors.

3. The remaining debts are then discharged (with some exceptions).

4. The debtor is relieved of the obligation to pay the debts.

Liquidation proceedings under Chapter 7 are initiated when a debtor files a petition for bankruptcy, states his or her debts and turns assets over to a bankruptcy trustee. Voluntary bankruptcy is initiated by the debtor, while involuntary bankruptcy is initiated by the creditors.

“Means testing” is the evaluation of the debtor’s income and is done to determine whether a debtor’s petition to a bankruptcy court would constitute a “substantial abuse” of Chapter 7. Means testing is based on whether the debtor’s family income is greater than the median income in the state in which the petition is filed.

3. What is an automatic stay? What effect does the filing of a bankruptcy petition have on creditors?

Answer: An automatic stay occurs the moment a petition in bankruptcy—voluntary or involuntary—is filed. All litigation and other actions by creditors against the debtor or the debtor’s property are suspended.

Once a petition has been filed, creditors cannot contact the debtor by phone or mail or start any legal proceedings to recover debts or to repossess property. In some circumstances, a creditor may petition the bankruptcy court for relief from the automatic stay, however.

4. How does a Chapter 13 bankruptcy differ from a Chapter 7 bankruptcy? What is a discharge? Are all debts dischargeable in bankruptcy? If not, give examples of the types of debt that are not dischargeable.

Answer: Chapter 7 bankruptcy provides for the liquidation of assets and distribution to creditors, and is probably the most familiar type of bankruptcy proceeding, often referred to as ordinary, or straight, bankruptcy.

Chapter 13 provides for the adjustment of debts of an individual with regular income. Individuals—not partnerships or corporations—with regular income who owe fixed unsecured debts of less than $340,000 or fixed secured debts of less than $1 million may take advantage of bankruptcy repayment plans.

In bankruptcy, a trustee sells the nonexempt assets and distributes the proceeds to creditors. The remaining debts are then discharged (extinguished), and the debtor is relieved of the obligation to pay the debts.

Discharge of a debt may be denied because of the nature of the claim or the conduct of the debtor.

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

181

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 19: Bankruptcy and Environmental Law

Claims that are not dischargeable in a liquidation bankruptcy include the following: a. Claims for back taxes accruing within two years prior to bankruptcy. b. Claims for amounts borrowed by the debtor to pay federal taxes or any nondischargeable taxes. c. Claims against property or funds obtained by the debtor under false pretenses or by false representations. d. Claims by creditors who were not notified of the bankruptcy. These claims did not appear on the schedules the debtor was required to file. e. Claims based on fraud or misuse of funds by the debtor while acting in a fiduciary capacity or claims involving the debtor’s embezzlement or larceny. f. Domestic-support obligations and property settlements as provided for in a separation agreement or divorce decree. g. Claims for amounts due on a retirement account loan. h. Claims based on willful or malicious conduct by the debtor toward another or the property of another. i. Certain government fines and penalties. j. Certain student loans or obligations to repay funds received as an educational benefit, scholarship, or stipend—unless payment of the loans imposes an undue hardship on the debtor and the debtor’s dependents. k. Consumer debts of more than $500 for luxury goods or services owed to a single creditor incurred within ninety days of the order for relief. l. Cash advances totaling more than $750 that are extensions of open-end consumer credit obtained by the debtor within seventy days of the order for relief. m. Judgments against a debtor as a result of the debtor’s operation of a motor vehicle while intoxicated. n. Fees or assessments arising from property in a homeowners’ association, as long as the debtor retains an interest in the property. o. Failure of the debtor to provide required or requested tax documents.

5. What happens if a company files for bankruptcy reorganization under Chapter 11? What is a debtor in possession? What procedure is followed after the bankruptcy is filed?

Answer: Chapter 11 enables the court to reorganize a company, allowing the debtor to continue in business, after a plan is approved and followed. The plan allows for reorganization and liquidation of debts over the plan period.

In Chapter 11 bankruptcy proceedings, a debtor may be allowed, for the benefit of all concerned, to maintain possession of the estate in bankruptcy (the business) and to continue business operations.

A debtor can petition for reorganization (voluntary) or creditors can petition

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

182

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 19: Bankruptcy and Environmental Law

(involuntary). Any debtor (except a stockbroker or a commodities broker) eligible for Chapter 7 relief can be a debtor. The procedure leading to the discharge starts with a submitted plan. If it is approved and followed, debts are discharged. The advantage of proceeding under Chapter 11 is that the debtor continues in business.

Creditors can accept the plan, or it can be “crammed down” on them. The plan allows reorganization and liquidation of debts over the plan period.

6. What is an environmental impact statement (EIS), and when is one required?

What factors does an EIS evaluate?

Answer: An EIS is a statement required by the National Environmental Policy Act for any major federal action that will significantly affect the quality of the environment. The EIS must analyze the action’s adverse effects on the environment, explore possible alternatives, and analyze the irreversible effects of the action on environmental quality.

7. What four environmental issues are regulated by federal environmental laws? List the major laws providing the regulatory framework in each area.

What is the Superfund? Which parties are responsible for the cleanup of hazardous waste sites?

Answer: The chapter addresses four main areas that are regulated by federal environmental laws: air pollution, water pollution, and toxic chemicals and hazardous waste. The following is a list of the areas as well as the major laws that provide the regulatory framework for each of them: 1. Air Pollution. a. Clean Air Act of 1963. b. Amendments to the Clean Air Act, especially the 1970, 1977 and 1990 amendments.

2. Water Pollution. a. Rivers and Harbors Appropriation Act of 1899. b. Federal Water Pollution Control Act (FWPCA) of 1948. c. Clean Water Act of 1972 (amendments to the FWPCA).

3. Wetlands a. The Clean Water Act 4. Toxic Chemicals and Hazardous Waste. a. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) of 1947. b. Resource Conservation and Recovery Act. c. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund.

The basic purpose of Superfund, which was amended in 1986, is to regulate the cleanup of disposal sites in which hazardous waste is leaking into the environment. Superfund provides that when a release or a threatened release of © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

183

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 19: Bankruptcy and Environmental Law

hazardous chemicals from a site occurs, all of the following persons are responsible for cleaning up the site: 1. The person who generated the wastes disposed of at the site.

2. The person who transported the wastes to the site.

3. The person who owned or operated the site at the time of the disposal.

4. The current owner or operator.

A person falling within one of these categories is referred to as a potentially responsible party (PRP). If the PRPs do not clean up the site, Superfund authorizes the EPA to clean up the site and recover cleanup costs from the PRPs. [return to top]

Ethics Question Marla, an independent paralegal, provides a variety of services for the public. Among other things, she provides debtors with bankruptcy forms and petitions. Mr. Ford has sought Marla’s services in filing for bankruptcy. He takes home a set of Chapter 7 forms, reads through them, and begins to provide the information needed. He is not certain that he qualifies for Chapter 7 liquidation. He calls Marla and asks her if he has any other options. How should Marla answer Mr. Ford’s questions?

Answer: Marla cannot give Mr. Ford an answer to his question, because doing so would be giving legal advice—the practice of law. Marla should refer Mr. Ford to the appropriate section of the Bankruptcy Code and/or to a website that would provide the answer. By telling Mr. Ford what type of relief he needs, Marla would be giving him legal advice, which is forbidden by a paralegal in most states. [return to top]

Practice Questions and Assignments 1. Jamal earns a salary of $30,000 a year as a sales representative. In addition to his salary, he is entitled to a 10 percent commission on what he sells. Over the past five years, Jamal earned annual commissions of $80,000 to $100,000. Because the economy was booming and Jamal was making such large commissions, he purchased a $75,000 Cadillac and a $45,000 boat and incurred credit card debts totaling $55,000. In the last six months, Jamal has made only $10,000 in commissions and he still owes $50,000 on the Cadillac and $30,000 on the boat. In all, he owes $135,000 to creditors. Jamal cannot pay his debts as they become due, and it does not appear that his financial situation will improve over the next two years in light of limited job prospects. As a result, he is thinking about filing for bankruptcy. If the median income in Jamal’s state is $52,000 a year, would he be able to obtain a Chapter 7 liquidation? Why or why not?

Answer: Jamal would be able to file a Chapter 7 liquidation because his median © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

184

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 19: Bankruptcy and Environmental Law

income for the last six months was below that for the state and he also has substantial debts.

2. Jon and Susan Bogren have filed for voluntary bankruptcy under Chapter 7 and qualify, as they pass the means test. They own one car outright that has a value of $3,000, and they owe $10,000 to the bank for their second car. Their bankruptcy action will cause them to incur attorney fees, trustee fees, and court costs. Jon owes alimony and child support to his former wife and his children. Jon and Susan also owe income taxes and penalties from 2018, and Susan owes $35,000 in student loans. Is any property exempt? Are all of the debts dischargeable in bankruptcy? If not, indicate which ones are not dischargeable. List the priority in which the creditors will be paid.

Answer: The first car is exempt because it is worth less than the $3,225 exemption for a motor vehicle. The taxes are not dischargeable in bankruptcy because they are claims for back taxes accruing within two years prior to bankruptcy. Since the Bogrens have a car that is exempt, they may want to turn the other car—the car on which they owe $10,000—over to the bank. The bank can either accept the car in full satisfaction of the debt or sell it and use the proceeds to pay off the debt. Thus, the secured party, the bank, has priority over unsecured parties as to the proceeds from the disposition of the collateral, because secured creditors take priority over unsecured creditors. Should the collateral be insufficient to cover the secured debt owed, the secured creditor becomes an unsecured creditor for the difference. Among the unsecured creditors, Jon’s former wife and his children would have priority over the administrative expenses owed for court costs, trustee fees, and attorney fees. Student loans are not dischargeable.

3. The shoreline of Greers Ferry Lake is under the management of the U.S. Army Corps of Engineers, which is part of the Department of Defense. The Corps’ 2019 Shoreline Management Plan (SMP) rezoned the numerous areas along the lake and authorized the Corps to issue permits for the construction of new boat docks in the rezoned areas. No environmental impact statement (EIS) was required. The environmental group “Save Greers Ferry, Inc.” filed a lawsuit in U.S. District Court against the Corps to order it to prepare an EIS and stop issuing permits. When is an EIS required? What does an EIS analyze?

Answer: The National Environmental Policy Act (NEPA) of 1969 requires that for every major federal action that significantly affects the quality of the environment, an environmental impact statement (EIS) must be prepared. An EIS must analyze the impact on the environment that the action will have, any adverse effects on the environment and alternative actions that might be taken, and irreversible effects the action might generate. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

185

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 19: Bankruptcy and Environmental Law

Students’ opinions will vary as to whether or not an EIS is required for the Greers Ferry Lake shoreline. Several actions taken by the Corps sound as if they would affect the environment of Greers Ferry Lake: The rezoning of numerous areas along the lake.

The authorization of construction permits for 32 new boat docks.

A Wildlife Enhancement Permit to allow limited modifications of the shoreline.

The 300 percent increase of the area around the habitable structures that could be cleared of vegetation.

These actions would probably trigger the requirement that an EIS be prepared.

4. Identify the environmental law that applies to each of the following situations and explain how it would resolve the problem: a. The foreman at a manufacturing plant disposes of a fifty-five-gallon drum of spent solvents, a toxic waste, every week by pouring it on the ground “out back.” b. An investigation reveals that the local gas utility company has PCBs in its pipeline in excess of those allowed. c. An oil company releases oil into a local river, contaminating the river, which is a major source of drinking water for the area. d. A manufacturing plant that produces metallic paint for use on motor vehicles releases more pollutants into the air than the allowable emissions limits for its vicinity. e. Years ago, five large manufacturing companies disposed of hazardous waste by burying the waste on the property of a farmer forty miles away from the city and its inhabitants. The rural farm is now part of a suburb. The suburb’s groundwater and drinking water are found to be contaminated by the waste buried on the site of the former farm. The citizens demand that the site be cleaned up.

Answers: a. The Resource Conservation and Recovery Act authorizes investigation of any possible harmful effects. Superfund (Comprehensive Environmental Response, Compensation and Liability Act) regulates the cleanup of disposal sites where hazardous waste is leaking into the environment. b. The Resource Conservation and Recovery Act enables the EPA to require special labeling, limit the use of a substance, set production quotas, or prohibit the use of a substance altogether. c. The Clean Water Act was enacted to eliminate the discharge of pollutants into the water. The Water Quality Act enables the EPA to set guidelines and to subject violators to a variety of civil and criminal penalties. The polluting party may also be required to clean up the pollution or pay for the cost of doing so. d. The Clean Air Act establishes minimum guidelines and enables the EPA to assess civil penalties on a daily basis. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

186

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 19: Bankruptcy and Environmental Law

e. The Resource Conservation and Recovery Act requires the EPA to establish regulations to monitor and control hazardous waste disposal. Civil penalties may be assessed for violations. Superfund regulates the cleanup of disposal sites in which hazardous waste is leaking. [return to top]

Group Project This project involves researching the California drought and water crisis. Students should search for articles from authoritative news sources such as the Los Angeles Times, the San Francisco Chronicle, or the Wall Street Journal. Wikipedia should not be consulted.

Student one will do an Internet search for articles, photographs, and videos describing the California water crisis. Student two will do an Internet search for articles explaining the causes of the water shortage in California and the effects of the state’s increasing population on water consumption. Student three will do an Internet search for articles about California’s actions to address the water crisis. Student four will compile the information and present the group’s findings to the class.

Answer: Answers will vary.

A few helpful resources can be found at: https://www.drought.gov/drought/states/california (viewed on 7/30/20); https://www.calsense.com/california-water-crisis-just-another-drought/ (viewed on 7/30/20); https://www.nytimes.com/2019/05/21/us/california-drinking-water.html (viewed on 7/30/20). [return to top]

Video Questions 1. Answer Question for Review Number 2 in the text. Then watch the “Chapter 7 Bankruptcy Laws” video clip and answer the questions below. a. How does the means test described in the chapter compare to the means test described on the video?

Answer: According to the text, means testing is the evaluation of the debtor’s income and is done to determine whether a debtor’s petition to a bankruptcy court would constitute a substantial abuse of Chapter 7. Means testing is based on whether the

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

187

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 19: Bankruptcy and Environmental Law

debtor’s family income is greater than the median income in the state in which the petition is filed.

According to the video, if a debtor can afford to pay 25 percent of his unsecured debt over a five-year period, the debtor is required to file bankruptcy under Chapter 13 (personal reorganization) instead of Chapter 7 (liquidation). b. The Bankruptcy Reform Act of 2005 was enacted on April 20, 2005. At this time, the means test became law. Why do you think that the attorney in the video clip is so angry about the change in the law requiring means testing? Who do you think would have benefited from changing the bankruptcy laws, now making it more difficult for individuals to discharge all of their debts in bankruptcy? How does this demonstrate a shift in the balance of the twin goals of the bankruptcy laws discussed at the beginning of the chapter?

Answer: The attorney is angry because the law is changing and he is concerned that his client, Hector, may not be able to use the liquidation proceedings of Chapter 7.

These proceedings would allow all of his client’s debts to be discharged in bankruptcy and his client could walk away with a clean financial slate. Instead, if Hector did not qualify for Chapter 7 bankruptcy, he could end up in Chapter 13—requiring him to enter into a costly plan to repay at least a portion of his debts over a three- to fiveyear period. The passage of the Bankruptcy Reform Act of 2005 benefits the creditors who are to be repaid. Currently, the biggest creditors are banks.

A shift in the balance of the twin goals of bankruptcy is demonstrated by the fact that one of the major goals of the 2005 reform legislation was to require more consumers to pay as many of their debts as they possibly could, instead of having those debts fully extinguished in bankruptcy. This shifted the goals of bankruptcy laws to providing more distribution of debtors’ assets to creditors—and as a result, providing less relief to debtors.

Instructor’s note: This question offers an excellent opportunity to discuss why the Bankruptcy Reform Act was passed.

2. Watch the “Oil Accident” video clip, which describes a suit filed by the federal government against British Petroleum (BP). The video clip indicates that BP and other defendants may be held liable for civil penalties of $5.4 billion to $21 billion under the Clean Water Act. British Petroleum could face an additional $28 billion in penalties for criminal violations of the Clean Water Act. After watching the video clip, answer the questions below. a. According to the material in the chapter, what are the five sections of the Clean Water Act? Which section will govern the BP oil spill described in the video clip?

Answer: The Clean Water Act (CWA), as amended over time, has five main sections:

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

188

Solution and Answer Guide: Miller, Paralegal Today, 8e ©2022 978-0-357-45424-4; Chapter 19: Bankruptcy and Environmental Law

1.

2.

3.

4.

5.

National effluent (pollution) standards set by the EPA for each industry.

Water quality standards set by the states under EPA supervision.

A discharge permit program that sets water quality standards to limit pollution.

Special provisions for toxic chemicals and for oil spills.

Instruction grants and loans from the federal government for publicly owned treatment works (POTWs), primarily sewage treatment plants. The fourth section of the CWA, which contains special provisions for toxic chemicals and oil spills, will govern the BP oil spill disaster.

b. Do you think that British Petroleum and other companies involved in the Deepwater Horizon spill in the Gulf of Mexico should be subject to criminal prosecution? Explain your reasoning. Research whether such criminal charges have been brought. If charges have been brought, against whom have they been brought, and what is the nature of the charges?

Answer: Students’ opinions regarding criminal prosecution will vary. As of July 2012, however, it appeared that the U.S. government and British Petroleum were close to reaching a settlement of civil and potential criminal charges against the company.

Prosecutors have already charged former BP engineer Kurt Mix for allegedly obstructing justice by deleting text messages indicating that the blown-out well was spewing more oil than the company disclosed publicly.

Current estimates of BP’s liability for civil penalties under a settlement with the U.S. government—which would be much less than the company’s potential statutory liability—range between $7 billion and $10 billion, while estimates of BP’s criminal liability under a settlement agreement range between $5 billion and $10 billion. c. Should companies such as BP be liable under a theory of strict liability for any oil spill, or only for oil spills caused by the company’s negligence?

Answer: While students’ opinions will vary, it should be noted that oil companies are in a singular position to exploit and damage public and private resources. Apart from oil and gas reserves, oil companies are given access to other precious, natural resources—such as fresh water aquifers, fresh water streams, tillable soil, oceans, and marine life. These resources are placed at risk in the course of the oil companies’ exploitation of oil and gas resources. Indeed, the oil companies’ activities—whether conducted negligently or otherwise—have the capacity to permanently damage irreplaceable resources. Accordingly, it seems reasonable to hold oil companies liable for whatever environmental damage they cause, regardless of whether such damage results from negligent conduct. [return to top]

© 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

189