Paralegal CORE Competency Exam (PCCE) Study Manual - Second Edition Revised

Paralegal Core Competency Exam®® Study Manual Second Edition - Revised National Federation of Paralegal Associations, Inc. 400 South 4th Street, Suite 754E Minneapolis, MN 55415 Phone: 317-454-8312 http://www.paralegals.org info@paralegals.org, certificationdir@paralegals.org or certifications@paralegals.org NFPA, NFPA - The Leader of the Paralegal Profession, National Paralegal Reporter, PACE®, PACE® Registered Paralegal®, RP®, the Paralegal Core Competency Exam®, the PCC Exam® and the Logo Designs are all Registered Trademarks/Service Marks of NFPA.

NFPA Tech Institute, NFPA - Your partner in your profession and PACE® – The Standard for Excellence are Trademarks of NFPA, as are the CRP Credentials; CRP and CORE Registered Paralegal.

The following logo designs are also registered trademarks of NFPA:

Copyright 2024 by the National Federation of Paralegal Associations, Inc.

All rights reserved. The text of this publication, or any part thereof, may not be reproduced in any manner whatsoever without written permission from the publisher.

The National Federation of Paralegal Associations, Inc. is grateful for the dedication and countless hours devoted to the development and updating of the PCC Exam® and to the update of this Study Manual. Without the perseverance of these Contributors, none of this would be possible.

Distributed in the United States by the National Federation of Paralegal Associations, Inc., 400 South 4th Street, Suite 754E • Minneapolis, MN 55415 ISBN: 978-0-9623567-1-1

NFPA – The Leader of the Paralegal Profession®

TABLE OF CONTENTS DOMAIN 01: PARALEGAL PRACTICE....................................................................................................................................... 16 CLIENT LEGAL MATTERS ............................................................................................................................................................16 ETHICS AND PROFESSIONAL PRACTICE ......................................................................................................................................25 U.S. LEGAL SYSTEM ....................................................................................................................................................................41 LEGAL RESEARCH & WRITING ....................................................................................................................................................50 LAW OFFICE ADMINISTRATION, COMMUNICATION, AND LAW OFFICE TECHNOLOGY ............................................................108 DOMAIN 02: SUBSTANTIVE AREAS OF LAW ......................................................................................................................... 144 BUSINESS ORGANIZATIONS AND CORPORATE LAW ................................................................................................................144 CONTRACTS .............................................................................................................................................................................160 CIVIL LITIGATION .....................................................................................................................................................................170 TORTS ......................................................................................................................................................................................189 CRIMINAL ................................................................................................................................................................................214 PROBATE; ESTATES, WILLS AND TRUSTS .................................................................................................................................237 DOMESTIC RELATIONS ............................................................................................................................................................260 REAL ESTATE ............................................................................................................................................................................290 GLOSSARY ............................................................................................................................................................................ G1 REFERENCES ......................................................................................................................................................................... R1

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CONTRIBUTORS Introduction NFPA extends a thank you to each of the contributors of the revised PCCE® Review Manual, with a special acknowledgment to the hard work and dedication of the following contributors for the tireless and thankless job of coordinating all of the authors, proof reading, editing and formatting of this final document.

Kristen Baker, CRP®, OCP started her legal career in 1997 and has worked at 3 separate firms in her career. Ms. Baker received her CORE Registered Paralegal credential in 2015, followed by her Oregon Certified Paralegal credential in 2017.

In 2019, with over 20 years of legal experience, Ms. Baker took the leap, quit her job, and formed Encompass Legal Administrative Services, LLC, where she provides paralegal, administrative, and law office administration services to licensed attorneys and their practices.

Beth Bialis, RP® Beth was a member of the Western New York Paralegal Association, Inc. (“WNYPA”) since 1996 and is now a member of the Northeast Indiana Paralegal Association. Throughout the years Beth served the members of WNYPA in various roles on the Board of Directors and in 2010 was elected to the NFPA Board of Directors serving three years as Region V Director and two years as Vice President and Director of Profession Development. Beth also served as President of the Empire State Alliance of Paralegal Associations, Inc. for four years.

Beth has over twenty years of experience as a litigation paralegal and is currently employed as a Government Paralegal at Yoder, Ainlay, Ulmer & Buckingham, LLP in Goshen, Indiana.

Jered Brown, RP® has over 14 years of experience as a paralegal. He is a Complex Litigation Paralegal with Dunn Carney LLP in Portland, Oregon, where he works on an innovative trial team which has streamlined an iPad centered trial experience.

Mr. Brown has also served as Vice-President and Board Member of Oregon Paralegal Association. He has additionally served as the co- chair of Oregon Paralegal Association’s Litigation Specialty Group. Mr. Brown has presented a variety of CLEs relating to litigation matters.

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Kelley D. Chaney, RP®, CEDS has more than 27 years of experience as a litigation paralegal. He is a Complex Litigation Paralegal with Dunn Carney LLP in Portland, Oregon, where she works on an innovative trial team which has streamlined the eDiscovery process central to complex litigation.

Paralegals advance in their careers when their value and contributions in the work place increase. A paralegal certification is a significant, measurable achievement that validates a paralegal’s knowledge and skill set. I am a senior paralegal at the firm of Dunn Carney in Portland, Oregon with 27 years of litigation experience and focusing on complex litigation and eDiscovery. I have a paralegal certificate from The College of Legal Arts and a Bachelor’s degree in Administration of Justice. Earning my Registered Paralegal and Certified Electronic Discovery Specialist certifications solidified my level of expertise. It was an honor to contribute to the eDiscovery and Civil Litigation topics for the PCCE® study manual. I look forward to seeing more paralegals earn their certifications and advance in these areas.

Laura S. Fisk, RP® has more than 27 years of experience as a paralegal in the areas of federal and state litigation, mainly in the forum of construction law. She is a graduate of SUNY Potsdam with a bachelor’s degree in Psychology with a minor in Criminal Justice. Ms. Fisk is also a member of Gamma Sigma Sigma, a National Service Sorority.

Ms. Fisk successfully passed the PACE®® exam on August 14, 2014, and has been an RP® since that time. Ms. Fisk spends time volunteering for Hospice, the Eddy Alzheimer’s Services, she is a lector and Eucharistic minister at her church. She further enjoys spending time with her husband, 2 dogs, 2 cats, and the rest of her family.

Wendy Fuller, RP® is a graduate of Skidmore College. She is both a PACE® Registered Paralegal and Core Registered Paralegal, as well as an Employment Law Specialist, and a Litigation and Alternative Dispute Resolution Specialist. Ms. Fuller holds an Advanced Certificate in Foreclosure and Debtor/Creditor Law and earned a Human Resource Professional Certificate from Salem State University. She is a past Treasurer of the Western Mass Paralegal Association and is currently the PACE® Ambassador for the Association. Ms. Fuller has been an instructor for the Advanced Paralegal Institute for a number of years, teaching online PACE® and PCC review courses along with a variety of advanced paralegal courses for the Institute. She has more than 20 years of experience as a litigation paralegal and is currently employed as Sessions Clerk to the First Justice of the Hampshire Probate & Family Court.

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Becky Kerstetter is an Ohio State Bar Association Certified Paralegal with over 14 years of experience at the law offices of Squire Patton Boggs (US) LLP in Cleveland Ohio in the public finance and infrastructure department. She earned a Bachelor of Arts in Paralegal Studies and Justice Studies from Kent State University in 2005 and has been working in the paralegal field since the completion of her degree. She is also the current president of the Cleveland Association of Paralegals and in this role also works closely with the Cleveland Metropolitan Bar Association on their charitable events, pro-bono opportunities and inner-city student educational learning programs.

Ms. Kerstetter also serves NFPA as Secondary Representative and is the NFPA Strategic Planning Coordinator as well as a NFPA Certification Ambassadors Coordinator. She volunteers and sits on the Advisory Boards for Ursuline College’s Legal Studies Program and Kent State University’s Paralegal Program. Her expertise encompasses all types of public finance issues including working with bond counsel in both general obligation and revenue bond and note financings for Ohio school districts, municipalities, and counties and also for underwriters’ counsel for national and regional underwriters of tax- exempt bond issues by Ohio issuers.

Dee Dee Lantz, RP® is a Paralegal at the Little Rock, Arkansas law firm of Wright, Lindsey & Jennings LLP. She began working for attorneys in central Arkansas at the age of 15 and has now been an active litigation paralegal since 1994, having practiced in the civil, criminal, domestic, probate, corporate, banking and finance, business litigation, commercial transactions, estate planning, and appellate areas of law. Ms. Lantz obtained her bachelor’s degree in Criminal Justice in 2004 from the University of Arkansas at Little Rock and her paralegal certificate in 1995 from the University of Arkansas’ Division of Continuing Legal Education.

Ms. Lantz is a member of the Arkansas Paralegal Association (ArPA™), where she serves on the Board of Directors as Secondary Representative and PACE®® Ambassador. She also serves as the 2011 PACE®® - PR Coordinator for NFPA, a position which she has held since 2009. In addition, Ms. Lantz has also served on the PCCE®™ committee since its formation, as a result of the Resolution for that exam passed at the 2008 NFPA Annual Convention held in Rogers, Arkansas.

Ms. Lantz has been a guest speaker at continuing legal education seminars specifically geared toward litigation paralegals as well as speaking to other paralegal groups, including students, on the hot issue topics of paralegal utilization and the unauthorized practice of law. In August 2010, as ArPA™’s representative, she successfully co- presented to the Arkansas Board of Governors on the importance of the reinstatement of the paralegal committee within the Arkansas Bar Association.

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Georgette M. Pecoraro, RP® earned a bachelor’s degree in Legal Studies from Quinnipiac University in 1980. She served as NFPA's Treasurer & Director of Finance from May 2006 to October 2008 and from January of 2013 to October of 2013, as its President from October 2008 to October 2010, and as its Board Advisor from October of 2010 to September of 2012. She was a member of NFPA’s budget committee from 2003 to 2006, served as NFPA’s Case Law Coordinator from 2004 to 2006, served as Corporate Partner Program Coordinator from 2013 to 2014, and chaired the 40th Anniversary Committee in 2014. She served as Chair of NFPA Future's Task Force from 2020 to 2021, and as In-House Paralegal CoCoordinator from 2021 to 2023. She has been a PACE® Registered Paralegal® since June 2005.

Mrs. Pecoraro was a member of the New Haven County Association of Paralegals (NHCAP) from its inception as a chapter of the Connecticut Association of Paralegals in 1981 until it was dissolved in 2018. From 1981 through 2005, she served in a number of positions within NHCAP, including President, Treasurer, Secretary, First Vice President, Newsletter Editor, and Bylaws Chairman. She also served as NHCAP’s secondary delegate to NFPA from 2002 to 2006. She has been a member of the Paralegal Association of Northern Virginia since 2018, and served on its finance committee in 2021. Additionally, she served on the Legal Studies Advisory Committee for the University of New Haven from 2004 to 2018.

Mrs. Pecoraro was a Senior Litigation Manager at Hartford Fire Insurance Company, primarily working on the defense of life and disability cases, until her retirement at the end of 2023.

Mary McKay, RP®, CP®, FRP, has worked in the legal field since 1983, with extensive experience in litigation. She is employed as the Paralegal Coordinator and Senior Litigation Paralegal at Glenn Rasmussen, P.A. in Tampa, Florida. Ms. McKay completed her paralegal studies at the University of Miami and subsequently worked there as a teaching assistant, as well as teaching legal assistant studies at Miami-Dade Community College. She has been a Certified Paralegal since 1991 and a PACE® Registered Paralegal® since 2005. In 2007, Ms. McKay received Legal Assistant Today’s Paralegal of the Year award, after having been runner-up in 2005.

Ms. McKay is a member of NFPA and served on the NFPA Board from 2006 through 2009 as the Region III Director. She co-authored the office administration chapter in the fifth and sixth editions of the PACE®® study manual and contributed updates to the PACE® examination in 2007-2008.

She is also a member of the National Association of Legal Assistants, Association of Certified E- Discovery Specialists®, International Paralegal Management Association, and Tampa Bay Paralegal Association (TBPA).

Ms. McKay has served as TBPA’s President, President-elect, First Vice President, PACE®® Ambassador, and as the NFPA liaison. Ms. McKay is a frequent seminar speaker both locally and nationally.

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Prof. Gayle E. Miller, J.D., is the founding faculty member of the ABAapproved Legal Studies Program at the College of Lake County, Illinois where she teaches Introduction to Paralegal Studies, Criminal Litigation, Internship, Seminar and Capstone courses in traditional and online formats. She holds a Bachelor of Arts in Criminal Justice with Honors and Distinction from the University of Illinois at Chicago and a Juris Doctorate with Honors from Chicago- Kent College of Law. Prof. Miller was elected (in a national election process) to the American Association for Paralegal and Legal Education (AAfPE) Board of Directors and currently serves as the Director for the Central Region having previously served on this Board as AAfPE’s Director of Certificate Programs. She is a past president of the Association of Women Attorneys of Lake County, served as chair of the Associate Member Committee of the Lake County Bar Association, and is a past member of the ABA Approval Commission to the ABA Standing Committee on Paralegal Education. Prof. Miller has chaired site visits to over 25 colleges and universities across the country on behalf of the ABA Approval Commission and continues to conduct site visits as a specially appointed ABA Approval Commission representative.

Prior to embarking on her career in academia, she practiced law full- time in Illinois concentrating in criminal defense, including 10 years representing indigent defendants in criminal cases with the Cook County Public Defender’s Office and several years in private practice. Prof. Miller is also admitted to practice before the U.S. Supreme Court and continues to maintain her law license with a limited practice in criminal defense.

At her institution, Prof. Miller is a department chair and a faculty senator, representing the faculty of the Business and Social Sciences Division; she also serves as the faculty representative to the college’s Enrollment Management Commission, has served on hiring committees for faculty positions, and is the chair of a Peer Review Committee in which she mentors, develops and evaluates new faculty in the tenure process.

Prof. Miller regularly organizes, presents, and conducts professional development activities for both law-related (CLE) and academic audiences on a regular basis at national and regional conferences for paralegal educators and for local bar associations and at her institution.

CYNTHIA MINCHILLO, RP® began working as a paralegal in Dallas in 1988. She was a Board Certified Paralegal by the Texas Board of Legal Specialization in Personal Injury Trial Law from 1996 to 2014 and earned her Registered Paralegal designation by passing PACE®® in 1997. She obtained a B.A. in Government in 2000 and an M.P.A. in Public Affairs in 2003 from the University of Texas at Dallas.

Ms. Minchillo is a member of the Dallas Area Paralegal Association and the Paralegal Division of the State Bar of Texas. She has held various elected and appointed positions within DAPA, NFPA and the PD, as well as serving as the ABA Approval Commission Representative for the National Federation of Paralegal Associations from 2008-2011 and site visitor from 2012-2024. She has been a frequent presenter and author on various continuing legal education topics and served as associate faculty for El Centro Community College. Ms. Minchillo has been an adjunct 10

faculty member of Collin College’s paralegal program since 2013.

Dianna L. Noyes, RP®, M.S. graduated from California State University, Sacramento, with a Bachelor of Arts in Criminal Justice. She received her paralegal certificate in 1992 through the University of California, Davis, Legal Assistant Certificate program; and completed her Masters of Science in Legal Studies and Public Policy from California University, Pennsylvania in 2006. Ms. Noyes has worked for 19 years as a paralegal in the areas of family law, probate and estate planning, business, and social security. In 2002, Ms. Noyes sat for and passed the Paralegal Advanced Competency Exam®.

Ms. Noyes has served in numerous capacities on the Board of the Sacramento Valley Paralegal Association, as their Representative to NFPA for several terms, and is a lifetime member of SVPA. She served 2 terms on the NFPA Board as President and as Director -- Region I. Ms. Noyes is a member of the Research Triangle Paralegal Association, the American Association for Paralegal Education, and the California Alliance of Paralegal Associations.

Ms. Noyes has authored several books including, The California Family Law Paralegal, Second Edition in 2008; The California Probate Paralegal in 2007; and two versions of the Legal Research Scavenger Hunt Workbook in 2009. She has also contributed to the PACE®® Study Manual, Second-Sixth Editions. Ms. Noyes has been teaching Family Law for 19 years at MTI College in Sacramento, California; various courses for Kaplan University’s online paralegal program; and Elder Law and Estates & Probate for California University, Pennsylvania. She has been involved in curricula development, has written and taught CLE courses for Duke University, AIPS and other continuing education providers, and has been a frequent speaker on numerous topics.

Linda Odermott, RP®, OCP is a paralegal in complex litigation and municipal law. She has special expertise in land use, construction defect, real property, and marijuana-related matters. As a Senior Paralegal with the law firm of Dunn Carney LLP in Portland, Oregon, Ms. Odermott works with attorneys in the firm’s litigation and real estate groups. Ms. Odermott’s experience includes extensive research on tribal law, treaties, franchise agreements, ordinances and resolutions of local and state agencies, case law, easements, rights-of- way, land use agreements, policies and regulations of government agencies, historic maps and diagrams, and public records.

An active member of the local and national paralegal community, Ms. Odermott has been a panelist, facilitator and speaker at local and national paralegal conventions, including NFPA, the Oregon Paralegal Association (OPA), the Judge Advocate General’s Association of Legal Paraprofessionals (JAGALP), and Tampa Bay Paralegal Association (TBPA) conferences.

Ms. Odermott held a number of local positions with OPA including: Board 11

Member, Certification Ambassador, Public Relations Chair, and Military Outreach Coordinator, as well other leadership roles and committees. On the national level, Ms. Odermott held the following NFPA roles: Regulation Coordinator, Armed Forces Coordinator, Certification Public Relations Coordinator, Budget Committee Member, and Vice President and Director of Paralegal Certification.

Ms. Odermott received the 2015 Certification Ambassador of the Year Award from NFPA and Paralegal of the Year Award from OPA in 2015 and 2016 consecutively. In addition, she teaches real property as a member of the part-time faculty at the Paralegal Program of Portland Community College; was appointed to three separate Task Forces by the Oregon State Bar Board of Governors regarding the future of the legal profession, including licensing paralegals.

Patricia A. Pennington, RP® is a Senior Family Law Paralegal located in the San Francisco Bay Area who specializes in marital dissolution actions involving complex financial issues in high net worth marital estates. Ms. Pennington has been employed by Sideman & Bancroft LLP since August 2011. Before joining Sideman & Bancroft, she was employed by Morgan, Lewis & Bockius LLP / Brobeck, Phleger & Harrison LLP since March 1997. Prior to moving to the San Francisco Bay Area in 1996, Ms. Pennington lived in Minneapolis, MN working on complex marital dissolution cases for leading Twin Cities family law attorneys.

Ms. Pennington received her PACE® Registered Paralegal® designation in December 2000. She was named the Paralegal of the Year by the Bar Association of San Francisco in 2015 and was named the Outstanding Paralegal of the Year by the Minnesota Paralegal Association in 1993.

Ms. Pennington is a member of the Bar Association of San Francisco and founder and member of a San Francisco Family Law Paralegal Group. She is a past President, Officer, and member of the Minnesota Paralegal Association, past Co-Chair of the Minnesota Trial Lawyers Association Legal Assistant Division, and past member of the San Francisco Paralegal Association.

Ms. Pennington has been a frequent guest speaker at various colleges and continuing legal education events in the San Francisco Bay Area and in Minnesota. She is a past Officer and Director of the Sausalito Woman’s Club Scholarship Recognition Fund [a (501(c)(3) organization] and currently is a member of the Fund’s finance committee.

Pamela J. Starr, CBA, J.S.M., MATD, became a paralegal in 1983 garnering experience in oil and gas, Title IIV, patent and trademark, and bankruptcy and tax litigation; focusing on bankruptcy since 1988. When her 25-year BigLaw paralegal career came to a sudden halt in 2008, Ms. Starr used her experience, knowledge, and connections to reinvent herself as CEO & Paralegal Extraordinaire of STARRParalegals, LLC, where she provides 21st century paralegal support to attorneys throughout the US in all aspects of bankruptcy.

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As a non-traditional paralegal, Ms. Starr has become a subject matter expert on ethics, e-filing, working virtually, life after paralegal school, and DMCA. She has been a speaker, panelist, and facilitator at local and national conferences including NFPA, Georgia Association of Paralegals (GAP), the Group Legal Services Conference (GSLA), and Paralegals Navigating Perilous Waters. Ms. Starr’s articles and interviews have appeared in Commercial Law World, Effectively Staffing Your Law Firm, 2nd Edition, ABA GPSolo Magazine, The Paralegal Society, National Paralegal Reporter, Paralegal Today, Law Technology News, Law Crossing, and the Fulton County Daily Report.

Ms. Starr is affiliated with NFPA, GAP, ABA GPSolo Division, the American Bankruptcy Institute (ABI), the Commercial Law League of America (CLLA), and the Association of Bankruptcy Judicial Assistants (ABJA). She has served in various roles for GAP including two terms as Vice President of Membership and Pro Bono Conference Committee Member. Ms. Starr was appointed to the NFPA Ethics Board in 2013 and served three terms as Ethics Board Chair.

Pamela also blogs as her alter-ego Pamela the Paralegal, and provides Career Mitigation© services to transitioning professionals at Sessions with a Starr.

Judy Stouffer, RP® is the Law Firm Administrator at Berner Klaw & Watson LLP, a family law firm in Philadelphia, Pennsylvania, where she has been employed for over 20 years. She earned her RP in August 2008 and has served NFPA as the PACE®® Coordinator for Study Materials and lead editor for the Sixth Edition of the PACE® Study Manual and the First Edition of the PCC Exam™ Study Manual. Ms. Stouffer has also served as a Region IV representative on NFPA’s Pro Bono Committee and is a past recipient of NFPA’s William Robie Leadership Award.

Locally, she sits on Peirce College’s Paralegal Studies Advisory Committee and previously sat on the Delaware County Community College Paralegal Studies Program Advisory Board. Ms. Stouffer is a past president of The Philadelphia Association of Paralegals (PAP) and was PAP’s representative on the Philadelphia Bar Association’s Board of Governors for several years. She was appointed as an investigator for the Philadelphia Bar Association’s Judicial Commission in 2019.

Ms. Stouffer was the recipient of PAP’s 2007 inaugural Pro Bono Award and a PAP 2019 Special Achievement Award. The Philadelphia Volunteers for the Indigent Program honored her pro bono work with a VIPeoples Choice Award in 2010. She has served as a presenter and course planner for the Pennsylvania Bar Institute and has been published in the National Paralegal Reporter®, The Philadelphia Forum, the Philadelphia Bar Reporter® and The Legal Intelligencer.

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Michael K. Sullivan, Esq. is an Associate Professor and Program Director of Paralegal Studies at Brookdale Community College located in Lincroft, New Jersey. Mr. Sullivan has also served as an educational consultant assisting Paralegal Studies programs in securing and maintaining American Bar Association (ABA) approval status. Mr. Sullivan has close to 20 years of paralegal teaching experience in the following areas: Contracts, Litigation, Torts, Constitutional Law, Criminal Law & Procedure, Legal Research & Writing, and certification exam prep. Mr. Sullivan was one of the founders of The Paralegal Education Group, LLC, a learning platform that provided online certification exam review courses and study resources. Mr. Sullivan has spoken at lawyer and paralegal conferences across the country on a wide variety of legal specialty topics and areas.

Mr. Sullivan received his Juris Doctorate from Seton Hall University School of Law, during which time he served as a Teaching Fellow in the University’s Academic Support Program. Mr. Sullivan served as a law clerk for the Honorable Robert W. O’Hagan in the New Jersey Superior Court, Monmouth Vicinage, Civil Part, Law Division.

Following the clerkship, Mr. Sullivan joined a mid-sized law firm in where he specialized in commercial and corporate litigation.

Lisa Vessels, RP®, CP® lives in Miami, Florida, and is employed by Duane Morris LLP managing the docketing function and court rules-based docketing software for her firm's U.S. offices. Lisa has worked in the paralegal profession since 1992 with experience in commercial litigation, as well as corporate contract law specializing in commercial aviation equipment leasing and sales.

Ms. Vessels earned her Bachelor's degree in Paralegal Studies from Nova Southeastern University in 2005, and Associate's degrees in Computer Information Systems and Computer Programming (Visual Basic) from Miami Dade College in 2002. She earned the Certified Paralegal® credential in 2005, maintained the Florida Registered Paralegal with The Florida Bar from 2008 to 2018, and earned the PACE®® Registered Paralegal credential in 2012.

Lisa is a former two-term President of the South Florida Paralegal Association and the Florida Alliance of Paralegal Associations. As an active member in both organizations, she served in many roles since joining in 2005. She is currently serving her second term as Director of Paralegal Certification for the National Federation of Paralegal Associations (NFPA.) Lisa has also served as NFPA’s President from 2014-2016, Board Advisor from 2016-2018, Vice President and Director of Positions and Issues from 2012-2014, Regulation Review Coordinator from 2009-2012, and was an active participant on the PCC Exam Development Committee from its inception in 2008 through its launch in 2011.

Lisa served on Miami-Dade College's Paralegal Studies Program Advisory Board from 2006 to 2012, serving as chairperson from 2010. She has 14

served four, three-year terms as a non-lawyer member of The Florida Bar's Unlicensed Practice of Law Committee for the 11th Circuit in MiamiDade County. She is currently serving her second three year term on the 11th Circuit FRP Disciplinary Committee for the Florida Bar. She was an adjunct instructor at Florida International University's Paralegal Studies certificate program from 2006 to 2008.

Tracey Woolsey, RP® graduated from Illinois State University with a Bachelor of Science in Criminal Justice. Ms. Woolsey has worked for 25 years as a paralegal in the areas of litigation, real estate law, business (corporate) and transactional law. In 2015, Ms. Woolsey sat for and passed the Paralegal Advanced Competency Exam®.

She has served in numerous capacities on the Board of the Indiana Paralegal Association and as either their Primary or Secondary Representative to NFPA for several terms.

Ms. Woolsey also served on NFPA’s Board of Directors as Region III Director.

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DOMAIN 01: PARALEGAL PRACTICE CLIENT LEGAL MATTERS Development of Client Legal Matters The development of client matters begins with the initial contact between the potential client and the firm. Therefore, it is important to always maintain a professional and compassionate demeanor. It is important to remember that you are dealing with someone who is most likely trying to navigate unfamiliar territory in a stressful situation. Most likely, the last thing the potential client wants to be doing is to be seeking legal counsel – whether as a plaintiff or a defendant. It is easy to unknowingly be judgmental because, as a paralegal, we are encountering difficult legal issues daily, but processing them as a third party. The potential client, on the other hand, may be experiencing a legal issue for the first time and as a result may be entering a foreign and unknown territory and may be in crisis, angry or fearful; in any event, most likely not at his or her best.

Initial Contact It is important that when the paralegal is first in contact with the potential client that he or she identifies him/herself as a paralegal. Once that relationship has been established, it is also important for the paralegal to put the potential client at ease so that he or she will speak freely about the issue at hand – exchange pleasantries, inquire as to the purpose of the call or contact. In that regard, give the client the opportunity to explain the purpose in his or her own words and at his or her own PACE®.

When the basic purpose has been established and the client is comfortable, the paralegal can then gently take control of the conversation to gain the necessary information that the attorney will need.

Be sure to get the full name of the client and other interested or adversarial parties, being careful to confirm spellings of names and accurate contact information (address, work/home/cell phone numbers, email addresses, etc.). Accuracy of input is the only way to ensure that future conflict checks will be reliable.

Conflict A conflict check should be done at this point to confirm that representation of the client would be possible. In terms of the conflict check, that can be one of the paralegal’s most important functions – the paralegal must understand the system utilized by the law office and must be sure to check for conflicts relative to potential clients as well as all other potential adversarial or other interested parties. The paralegal must also timely enter the potential client (and all related parties) in the firm’s database or record system so that other paralegals, attorneys and support staff will be advised of the contact by the potential client when others are completing conflict checks. It is very important that the information be entered accurately. If additional parties become known or added, those parties must be timely entered into the system as well.

In regard to conflicts, an ethical issue could arise with another member of the firm if that member has some relationship or knowledge as to the potential client or one of the interested or adversarial parties. Depending upon the nature of the relationship, that does not necessarily preclude the firm’s representation of the client. Rather, it may require that the member with the conflict be segregated or isolated from any and all communication, access to the file and papers, and any other information relative to the matter. This is commonly referred to as an Ethical Wall, an ethical wall or screen.

Assuming there is no conflict that prohibits the firm’s involvement in the matter, the conversation with the potential client may continue. Be sure to take detailed notes of the conversation – what the 16

client wishes to accomplish and what has occurred that necessitates the call. If a motor vehicle accident, for example, the attorney will need to know the date and time of the accident, where it occurred, generally how it occurred, whether there were injuries, whether the police were involved, whether anyone was taken to the hospital by ambulance, whether citations or criminal charges are involved, insurance information, etc. If the client was injured, it would be appropriate to inquire if the client is still treating and if he or she missed time from work. If the paralegal is authorized to make an appointment with the attorney based on the information acquired from the initial contact, it would be appropriate to do that at this point. If the paralegal must first review the details with the attorney, that can be done, and the attorney can decide if an appointment is appropriate. In either event, a detailed memorandum of the conversation with the client should be completed for the attorney’s review. The memorandum should be concise and neatly prepared and presented – edited for clarity and accuracy – so that the attorney has a clear understanding of the issue(s) prior to the initial conference.

Initial Conference or Meeting In anticipation of the initial meeting between the attorney and client, the paralegal should prepare any documents that may be needed. Returning to the motor vehicle accident, for example, a contingent fee agreement should be prepared, medical authorizations prepared for the client’s signature to allow the attorney to obtain necessary treatment information, authorizations to allow the attorney to obtain lost wage information, etc. Depending upon the policy of the particular office, the paralegal may or may not be included in the initial interview. If the paralegal is included, he or she should take detailed notes of the information acquired at the meeting. The paralegal should also have a business card available for the client so the client will have contact information for the paralegal. If not included in the initial meeting, the attorney will most likely share the paralegal’s contact information with the client. The paralegal will most likely be the point of contact for the client going forward, and it is important that the client have a level of comfort that the paralegal is well-versed on the client’s issue and knowledgeable about the subject matter. Preparation and professionalism are key for the paralegal in establishing that relationship.

Unauthorized Practice of Law Throughout this Manual, there will be discussions of the unauthorized practice of law. That is particularly important at this point. At the initial contact of the client with the paralegal, the client may well seek information that the paralegal may be knowledgeable about because of the paralegal’s experience and general knowledge. However, the paralegal still may not be able to provide the answer or disclose the information requested. As the paralegal gains more experience that line can be very difficult not to cross. As set forth in “Tips for Avoiding Unauthorized Practice of Law,” The Paralegal Resource, April, 2014: A paralegal needs to keep in mind that there are certain things only a licensed lawyer is authorized to do. To be precise, there are five things that only a licensed lawyer can do: •

Initiate a lawyer-client relationship;

•

Provide legal advice;

•

Any legal papers or pleadings on behalf of the client can only be signed by a lawyer;

•

Carry out legal proceedings in a court of law; and

•

Charge a fee for these legal services.

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Barring these, a paralegal is free to perform any other task. Paralegals can work on legal research, investigation of facts, getting exhibits ready, write legal documents, and even manage the case on a day-to-day basis.

As a paralegal you should also ensure that any prospective client or, for that matter, any other person you interact with, knows you are a paralegal and not authorized to provide legal advice. If you do provide information that could be construed as legal advice, explicitly mention the source. For example, “Attorney Morris believes that the case can be...” Finally, update the attorney regarding all your work and activities, and ensure your work is reviewed and approved.

These are very good tips to follow when you engage in initial contact with a potential client.

The American Bar Association and many states have adopted Model Guidelines for the Utilization of Paralegals. NFPA has also adopted a Model Code of Ethics and Professional Responsibility. These are important resources to review. The ABA Guidelines authorize an attorney to delegate responsibility to a paralegal commensurate with the paralegal’s experience and training. However, the attorney must directly supervise and review the paralegal’s work before it is published outside of the firm.

Similarly, the paralegal will often be required to send correspondence on behalf of the attorney and/or firm, but it is important that the paralegal identify him/herself as a paralegal. The correspondence must not contain legal advice or opinion. If it does, then it must be signed by an attorney. Returning to the motor vehicle accident, the paralegal will most likely send for police reports and medical records. That correspondence can be signed by the paralegal as long as the writer is identified as such and the firm policy permits it. On the other hand, while the paralegal may be instrumental in drafting a settlement demand or an opinion letter advising a client of a recommended course of action, those documents must be signed by the attorney.

Execution of Client Legal Matters Once the attorney-client relationship is established the paralegal’s work really begins. Most likely the firm has a standard procedure for file organization. Proper organization of files, both hard copy and electronic, is key. Organization must start with the initial documents and must continue throughout the life of the file. At any time, a particular document may need to be accessed quickly. As a result, the paralegal must be familiar with the firm’s policy for file organization and must follow the organizational protocol for future documents and information to be acquired. Returning to the motor vehicle accident previously mentioned, for example, file organization for development of the claim might include the following: •

Office Notes

•

Client Notes/Summary of Accident

•

Police Report/Report of Investigation of Accident

•

Medical Records with paralegal chronology and summary of treatment

•

Medical Bills with paralegal chronology and itemization

•

Lost Wage Records with itemization

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•

General Correspondence

•

Experts with index and summary of opinions

•

Communication with Insurance Company

•

Demand Package

Familiarity with the documents in the file is crucial for the paralegal. In that regard, the paralegal should also review the documents provided or obtained to date with an eye toward what further documents may be required and the potential uses of documents received and to be requested. (If the file proceeds to litigation, that would most likely require establishing a separate file, although certainly documents from the original file would be consulted and used. There most likely would be a protocol within the firm for such an event.)

In the event of potential or pending litigation, the client’s in-house electronic files must be preserved.

Again, most likely the firm has a standard procedure for explaining the client’s obligations; however, the paralegal should be familiar and comfortable with the firm’s instructions and procedures to be explained to the client as the paralegal may well participate or take the leadership role in that process.

Effective communication is key in all aspects of the paralegal’s duties. That requires the ability to clearly express requests for desired information as well as an ability to clearly provide information. In this regard, a large legal vocabulary is very important. The paralegal must be able to understand and communicate legal terms. There are a variety of resources available to assist with mastering the language. One great resource to help build your legal vocabulary is a website/phone app called Quizlet that can be found at www.quizlet.com.

The paralegal may also be requested to draft necessary documents for review by the attorney. Documents drafted should be reviewed carefully and edited for accuracy and completeness before submission to the attorney. Each area of law has its own nuances and requires specific knowledge. For example, real estate transactions require at least a basic knowledge of transactional statutes and practices in the jurisdiction where the paralegal is working. There are different types of deeds, such as a warranty deed, which warrants generally that the property being transferred is free from encumbrances or liens other than those specifically disclosed in the document. On the opposite end of the spectrum is a quitclaim deed, which only conveys to the grantee so much of the title that the grantor possesses and does not provide for damages in the event of an undisclosed or later discovered defect in the title. Title may be taken in a variety of forms: Tenants by the entirety, which requires that the grantees be married; tenants in common, where interest in property is owned by 2 or more persons, not necessarily with equal ownership interests, and with each tenant having the ability to transfer to a third party his or her interest; joint tenants, where the property is also owned by more than one person, but unlike the tenant in common, the joint tenant’s interest may not be transferred to a third party and the joint tenant’s interest passes to the remaining joint tenant(s) upon death; or life tenancy where the life tenant is granted the right to remain in possession of the property for his or her life or the life of another. There is an excellent discussion of ownership of real estate in Introduction to Law for Paralegals, by Katherine A. Currier and Thomas E. Eimermann, Chapter 16 of the Fifth Edition and Chapter 13 of the Sixth Edition. In this regard, the paralegal must know the type of deed that is to be offered at closing and how title is to be taken by the grantee in order to properly prepare the deed of conveyance. The paralegal will also most likely be called upon to liaison with clients, attorneys, banks and others to assist with computation of closing adjustments and preparation of financing documents, which is discussed in more detail in the above text.

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Intellectual property requires a basic understanding of patents, copyrights, trademarks and trade secrets.

Most simply defined, a patent permits the owner to prohibit others from making, selling, using or importing the owner’s invention for a specified period of time; a copyright protects from reproduction original literary works, music, drama or the arts; a trademark is a protection that identifies a product; and trade secret is commercial information that would offer some competitive benefit or advantage to a competitor if known. Intellectual property is a very complex area of law and requires some in depth study to be a contributing member of an intellectual property team.

Estate planning requires the paralegal to have a basic understanding of estate planning and estate administration principles. A paralegal will be required to draft a variety of Wills, Trusts, Powers of Attorney, Powers of Attorney for Health Care and other estate planning documents. Knowledge of the Uniform Probate Code (UPC) is also required. The UPC establishes the procedures for estate administration and rules of inheritance. It may be easily reviewed online and while it is not necessary to “memorize” all of its provisions at least a general knowledge of the Code and comfort with accessing it is advisable.

Litigation is a very expansive area of the law. It can range from a vey basic action for recovery of payment for services rendered to employment discrimination and other employment law claims to complex contract litigation to everything in between. However, there are some similarities in all of these types of litigation. For purposes of the PCCE® Exam, you should be familiar with Federal Rules of Civil Procedure. In terms of employment in the field, however, it is equally important to understand the state rules and rules of your jurisdiction.

There is a variety of documents that a paralegal may be asked to draft in these types of matters: •

Complaint(s) - the pleading initiating litigation filed by a plaintiff.

•

Summons - the notice to the defendant of the litigation and setting forth the deadline for defendant’s response. This requires that the paralegal know the sources available to effectuate service on the defendant.

•

Answer - the defendant’s response to the complaint.

•

Counterclaim - the defendant’s claim against the plaintiff.

•

Subpoena - a document requiring the presence of a person to testify at trial or a deposition.

•

Subpoena Duces Tecum - a document requiring a non-party to appear at trial or deposition with certain documents.

•

Notice of Deposition - a form of discovery which is a document requiring the presence of an individual to answer questions under oath about a litigation matter prior to trial.

•

Interrogatories - a form of discovery, written questions sent to a party to litigation that requires written answer under the pains and penalties of perjury.

•

Request for Production of Documents - a form of discovery consisting of a written request that a party produce certain documents related to the litigation.

This is not an all-inclusive list, but just a sample of the variety of documents that a paralegal may be asked to draft for review by the attorney. They require that the paralegal be familiar with Court rules, but

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perhaps even more importantly, that the paralegal be comfortable with the file and documents. Without that familiarity, the paralegal will not be able to draft the documents needed to satisfactorily prosecute or defend the matter. There is a great discussion of litigation in Introduction to Law for Paralegals, by Katherine A. Currier and Thomas E. Eimermann, Chapter 6, Sixth Edition.

Tracking and Calendaring All areas of law require the ability to track and calendar deadlines. As with other processes, most likely the firm has a policy or program for this process. However, it is important to understand the varying statutes of limitations for each matter; the deadlines for discovery, both for propounding and responding to requests; the limitations on acceptable numbers of discovery requests; the time constraints established by the Tracking Order issued by the Court, etc. The paralegal must follow the policy of the firm in tracking these deadlines, but must also have his or her own method for ensuring the deadlines will be met. Failure to meet such deadlines can have a devastating impact on successful prosecution or defense of a matter.

Closing the File Once the matter is resolved, the file will need to be closed. Certainly each firm has its own procedure to accomplish that, but whatever the policy, it is important that the file be re-organized as most likely while work was being completed, documents were pulled out, used and then just put back in the file (but not necessarily in the proper file) or there may be extraneous materials that should be removed or destroyed. The file should not be filed away or archived until the paralegal is comfortable that it is in proper order and everything that needed to be accomplished before closing has been completed.

Generally, there is a standard closure letter to be sent to the client indicating how long the file will be retained and providing the opportunity for the client to retrieve it prior to its destruction.

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Sample Questions Q:

When should a conflict of interest check be performed?

A. after the client has signed a fee or retainer agreement B. when the complaint has been filed C. before the firm accepts the client D. when the client pays the retainer fee.

A:

(C.) The best time to perform a conflict of interest check is before the firm accepts the case.

Q:

An Ethical Wall exists because: A. a conflict exists B. discovery is confidential C. documents are privileged D. the client requested it

A:

(A.) An Ethical Wall is instituted when a person at a firm has worked on behalf of a client while employed at a previous firm. This represents a conflict and in order to overcome that problem, an Ethical Wall is instituted to prevent the person from having any contact with files pertaining to the matter and to prevent them from discussing the case with anyone in the firm. The primary responsibility for reporting the conflict rests with the person who has the conflict, as does the responsibility for making sure there is no violation of the Ethical Wall.

Q:

Before beginning a legal research project, which of the following should the paralegal do first?

A. consult a West Digest to identify relevant key numbers for the remainder of the research B. consult a legal encyclopedia to obtain background information about the area of law to be researched C. call the Lexis/Nexis toll-free number to get assistance with formulating the search theory D. consult with the attorney about the limits of the research, the issue to be researched and the date that it is needed

A:

(D.) The correct answer is to consult with the attorney to determine the parameters of the research. It is imperative that the paralegal fully understands the issue he/she is researching before beginning the research itself.

Q:

If collaborative law is not successful, the parties: A. may continue to use current counsel to represent them in the matter B. hire new counsel to represent them in the matter C. must represent themselves in pro per in the matter D. hire new counsel to represent only one of them in the matter

A:

(B.) The parties must hire new counsel to represent them. Collaborative law is a process that is used prior to commencement of the action. The purpose of collaborative law is for the parties and attorneys to work together as a team, in a spirit of cooperation. This is accomplished through sharing of and free exchange of information and documents to produce a result that is mutually satisfactory to both parties.

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Q:

Foreseeability is the action which, under particular circumstances, would produce an anticipated result, such as: A. an injury to someone B. reading the future C. knowing the defendant D. winning a case

A:

(A.) By definition, foreseeability is an action which would produce an anticipated result.

Q:

The attorney-client privilege may be waived by the: A. judge B. lawyer C. client D. court

A:

(C.) As noted, the attorney-client privilege belongs only to the client. A lawyer will most likely assert that privilege on behalf of the client; however, only the client can waive the privilege.

Upon proper motion, it is possible to have the judge/court rule that certain matters are not subject to the privilege.

Q:

When can an attorney file an ECF document in a case?

A. whenever he/she wants to as long as he/she has passed the Bar Exam B. if he/she is admitted to practice in the court where the case is filed C. if he/she has an ECF username and password for the court where he/she wants to file D. only if the attorney has been admitted to that court or has been admitted pro hac vice, has entered his/her appearance in the case, has been issued an ECF username and password

A:

(D.) Only if the attorney has been admitted to that court or has been admitted pro hac vice, has entered his/her appearance in the case and has been issued an ECF username and password can he/she file an ECF document. In addition to be admitted to the court, the entry of appearance must be filed and an ECF username and password must be issued.

Q:

Which of the following is a proper task for a paralegal?

A. giving a legal opinion B. agreeing to a fee for representation C. drafting discovery documents D. taking a deposition

A:

(C.) Paralegals are permitted to draft documents for review by lawyers.

Q:

What is the most crucial element of creating a database?

A. having all of the information organized B. taking the time to map out how the firm plans to use the database in the future C. having the proper database software 23

D. making sure that the database is a small as possible A:

(B.) Taking the time to map out how the firm plans to use the database in the future is the best answer.

Q:

Objections to discovery requests include all of the following except: A. hearsay B. overbroad C. more convenient source D. privilege

A:

(A.) Hearsay is an evidentiary objection used at trial or during depositions. Fed. R. Civ. P. 26 (b) provides the scope of discovery. Parties may obtain discovery of any non-privileged matter. Fed. R. Civ. P. 26 (b)(2)(C) lists reasons for objections.

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Domain 01: Paralegal Practice

ETHICS AND PROFESSIONAL PRACTICE “Ethical decisions ensure that everyone’s best interests are protected.

When in doubt, don’t.”

- Harvey Mackay “Para,” from Greek, means “at or to one side of; beside; side by side” or “ancillary to roles requiring more training, or of a higher status.” Paralegals are trained professionals who work side-by-side with lawyers (often doing attorney-level work) while adhering to a complex code of conduct.

The fundamental principles embedded in the attorney-client relationship extend to all paralegals because paralegals are considered an extension of the lawyer. For that reason, paralegals and lawyers are bound by the same ethical rules and obligations.

Codes of conduct and ethics provide the tools that help paralegals avoid or resolve ethical dilemmas. The consequences of working (and living) unethically are too high: A breach of legal ethics can seriously damage a law firm’s reputation and profitability, causing client dissatisfaction and possibly triggering legal consequences such as professional liability claims or disciplinary actions. An ounce of prevention, in the form of ethics education, is worth a pound of cure after an ethical breach.1 The lack of unified, central regulation means paralegals are often held to a higher standard. Knowing, understanding, and complying with the rules, canons, and codes of ethics and professional conduct is our professional imperative.

Definitions “Ethics is a code of values which guide our choices and actions and determine the purpose and course of our lives.”

- Ayn Rand Ethics are the concepts and principles that guide us as responsible humans and professionals. Black’s Law Dictionary defines ethics as: “…the collective of universal values, treating each human equally, acknowledging human and natural rights, obeying the law of land, showing health and safety concerns, caring for natural environment.”

The definition is refined by US Legal, Inc. as Legal Ethics Law and Legal Definition: “…the minimum standards of appropriate conduct within the legal profession. It is the behavioral norms and morals which govern judges and lawyers. It involves duties that the members owe one another, their clients, and the courts.

Respect of client confidences, candor toward the tribunal, truthfulness in statements to others, and professional independence are some of the defining features of legal ethics. Legal ethics can also refer to the study or observance of those duties or the written regulations governing those duties.”

1

Arthur Garwin, The Paralegal’s Guide to Professional Responsibility (5th ed. 2019)

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The Rules The Source The ABA stood on the mountaintop and gave unto us the Model Rules of Professional Conduct that were passed down to paralegals through instructors, supervising attorneys, and peers. The ABA Model Rules serve as a template for the rules, canons, and codes of ethics used by most jurisdictions, state bars, and paralegal associations.

The National Federation of Paralegal Associations (NFPA®) codified the standards and ethical guidelines for paralegals in the Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement (Model Code of Ethics).

As it is written, so shall it be done…

Following the Rules “Whoever is careless with the truth in small matters cannot be trusted with important matters.”

– Albert Einstein The standards and ethical guidelines set forth by the Model Code of Ethics fall into eight (8) categories: competence, professional integrity, professional conduct, public service, confidentiality, conflicts of interest, disclosure of title & position, and the unauthorized practice of law.

Competence A PARALEGAL SHALL ACHIEVE AND MAINTAIN A HIGH LEVEL OF COMPETENCY Paralegals achieve and maintain competence through education, training, and work experience.

NFPA recommends a minimum of 12 hours of continuing legal education (CLE), including at least 1 hour of ethics, every 2 years to stay current on legal developments.

Competence, generally, refers to more than a paralegal’s knowledge and skills. It incorporates thoroughness and preparation, efficiency and reliability, the ability to take direction and be selfmotivated and work well with others, awareness of one’s capability and availability, and, yes, technological savvy to perform all assignments promptly and efficiently.

But what does that mean in real life?

•

Never misrepresent your education, experience, skills, or credentials

•

Keep learning – take CLEs; attend professional conferences and workshops

•

Join and participate in bar and paralegal associations

•

Ask questions - the only stupid question is the one not asked

•

Know your workload, availability and capability

•

Never take on more than you can handle

•

Know the rules (or where to find them) for your area of practice and jurisdiction(s) 26

•

Confirm, calendar, and meet all deadlines

•

Timely communicate all issues, concerns, questions

•

Keep accurate time and billing records

•

Put it everything writing

•

Take ownership of your work - check / countercheck / proofread

•

Be accountable, admit your mistakes

•

Be a team player

•

Be the best version of yourself that you can be

•

Master the technology at your disposal

Professional Integrity “Integrity is doing the right thing, even if nobody is watching.”

- Author Unknown A PARALEGAL SHALL MAINTAIN A HIGH LEVEL OF PERSONAL AND PROFESSIONAL INTEGRITY Integrity is a lofty concept. For paralegals it means knowing when, how and with whom to communicate, maintaining thorough, accurate, honest, and complete timekeeping and billing records, providing accurate accounting of client funds, and recognizing and reporting fraudulent activity.

Communication Paralegals should avoid ex parte communications with the courts or other adjudicatory bodies, or parties represented by counsel in pending matters without prior consent of the lawyer representing the other party.

Timekeeping and Billing Fraudulent billing practices = bad. Paralegals must keep timely, thorough, accurate, honest, and complete time and billing records - no inflating or padding billable hours; misrepresenting tasks performed; and/or submitting fraudulent expense and disbursement documentation.

Accurate time entries show the paralegal is helping the firm provide quality, reasonably priced legal services, meeting the firm’s billing requirements, and being fully utilized.

Client Funds and Fiduciary Responsibility Most attorneys rely on CPAs/accountants to maintain compliance with the ABA Model Rules governing fiduciary responsibility to: •

segregate the money 27

•

safeguard the money

•

notify the owner of the funds of any disbursement of funds

•

keep accurate records of the account

•

deliver the funds to either the client or third party when they are entitled to receive it

•

render an accounting when requested by either the client or any third party (e.g., IOLTA Board, IRS).

This duty could fall to (qualified) paralegals in smaller firms. As representatives of the firm, paralegals have a duty to disclose non-confidential knowledge of dishonest or fraudulent acts - misappropriation, conversion, embezzlement - regarding client funds, securities or other assets, to the proper authority.

Fee Splitting/Sharing Compensation and fee sharing are best explained in ABA Model Guidelines for the Utilization of Paralegal Services, Guideline 9: A lawyer may not split legal fees with a paralegal nor pay a paralegal for the referral of legal business. A lawyer may compensate a paralegal based on the quantity and quality of the paralegal’s work and the value of that work to a law practice, but the paralegal’s compensation may not be contingent, by advance agreement, upon the outcome of a particular case or class of cases.

Being paid to do your job is not fee sharing – it’s the law. Outsourcing work to nontraditional paralegals or other professionals is not fee sharing – it is the same as paying court reporters, process servers, investigators, accountants, etc.

Professional Conduct “Professionalism: It’s NOT the job you DO It’s HOW you DO the job.”

- Anonymous A PARALEGAL SHALL MAINTAIN A HIGH STANDARD OF PROFESSIONAL CONDUCT A paralegal should always be a mensch (Yiddish; a person of integrity and honor).

This means being dignified, well-mannered, and respectful. But the rule goes further than that impropriety or even the appearance of impropriety can damage a paralegal’s career. Conduct (violence, dishonesty, interfering with the administration of justice, abusing a professional position or public office) that adversely affects their fitness to practice must be avoided.

Public Service “We educated, privileged lawyers have a professional and moral duty to represent the underrepresented in our society, to ensure that justice exists for all, both legal and economic justice.”

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- Sonia Sotomayor A PARALEGAL SHALL SERVE THE PUBLIC INTEREST BY CONTRIBUTING TO THE IMPROVEMENT OF THE LEGAL SYSTEM AND DELIVERY OF QUALITY LEGAL SERVICES, INCLUDING PRO BONO PUBLICO SERVICES See, mensch above.

Paralegals, as ambassadors and officers of the court, are encouraged to participate in 24 hours each of Pro Bono Publico (Pro Bono) and community service every year.

Confidentiality “Confidentiality is a virtue of the loyal, as loyalty is the virtue of faithfulness.”

- Edwin Louis Cole A PARALEGAL SHALL PRESERVE ALL CONFIDENTIAL INFORMATION PROVIDED

BY THE CLIENT OR ACQUIRED FROM OTHER SOURCES BEFORE, DURING AND AFTER THE COURSE OF THE PROFESSIONAL RELATIONSHIP Confidentiality and discretion are essential to the practice of law. It’s only logical that paralegals be aware of, and abide by, all rules governing confidential information. Never use confidential information to the client’s disadvantage, or for personal or third-party benefit. Note: disclosure is permitted with the client’s written consent, when required by law or court order, or to protect the client from harm. Always share new confidential information with your attorney.

NEVER discuss clients or cases in public, with friends, family, co-workers, other clients, or paralegals, this includes conversations in halls and elevators, or on social media.

Conflicts of Interest “When you make a commitment to ethical values and ethical choices, boundaries and walls only indicate the boundaries of new places to apply those ethical values and choices.”

- Linda Fisher Thornton A PARALEGAL SHALL AVOID CONFLICTS OF INTEREST AND SHALL DISCLOSE ANY POSSIBLE CONFLICT TO THE EMPLOYER OR CLIENT, AS WELL AS TO PROSPECTIVE EMPLOYERS OR CLIENTS Avoiding conflicts of interest is relatively straightforward. Paralegals are to act within the bounds of the law; solely for the benefit of the client and be free of compromising influences and loyalties. Paralegals should neither allow their personal or business interests to compromise professional judgment and loyalty to the client, nor allow the business interests of other clients or third parties to compromise professional judgment and loyalty to the client.

When a conflict of interest has been identified and with the client’s consent to continued representation, a paralegal shall comply fully with implementing and maintaining an Ethical Wall.

The Ethical Wall is a screening method implemented in order to protect a client from a conflict of interest. An Ethical Wall generally includes, but is not limited to, the following elements: (1) prohibit the paralegal from having any connection with the matter; (2) ban discussions with or the 29

transfer of documents to or from the paralegal; (3) restrict access to files; and (4) educate all members of the firm, corporation, or entity as to the separation of the paralegal (both organizationally and physically) from the pending matter.

Attorney-Client Privilege (not specifically addressed by the Model Code of Ethics) Attorney-client privilege refers to protected communications between client and lawyer (and paralegal) made in the course of obtaining professional legal representation. Attorneys “assert privilege” on the client’s behalf by refusing to disclose confidential information to the court or other party.

Privilege may be waived by inadvertent disclosure – failure to properly identify documents as privileged or confidential, improper redaction, failure to remove metadata from electronic/digital documents, sending protected attachments and information in unredacted email strings or carelessly using “reply all” or email address autofill, and through poorly conceived by social media and online postings.

Disclosure of Title & Position “Contrary to what the public and some of our own may think, paralegals are not inexpensive alternatives lawyers, nor do we want to be.”

- Pamela J. Starr A PARALEGAL’S TITLE SHALL BE FULLY DISCLOSED Paralegals are degreed, experienced, trained, certificated, possibly certified, professionals and we’re proud of our achievements. As ethical professionals, paralegals openly disclose their title and credentials on all business and professional communications, including business cards, letterhead, directories, marketing materials, and advertisements.

Unauthorized Practice of Law “Anything a paralegal can do; an attorney can do too!

Of course, it will take 3 attorneys 6 times as long and cost 7 times as much.”

- Unknown A PARALEGAL SHALL NOT ENGAGE IN THE UNAUTHORIZED PRACTICE OF LAW Paralegals are not lawyers – but you knew that. As “not lawyers,” paralegals are required to comply with the applicable legal authority governing the unauthorized practice of law (UPL) in the jurisdiction in which they operate.

UPL Defined Currently, there is no all-governing definition of UPL. Definitions and comments regarding UPL by nonlawyer assistants vary from state to state with the standard set in the comments to Guideline 2 of the ABA Model Guidelines for the Utilization of Paralegal Services: Provided the lawyer maintains responsibility for the work product, a lawyer may delegate to a paralegal any task normally performed by the lawyer except those tasks proscribed to a nonlawyer by statute, court rule, administrative rule or regulation, controlling authority, the applicable rule of professional conduct of the jurisdiction in which the lawyer practices, or these guidelines. (emphasis added) 30

ABA Model Rule 5.5 defines activities that constitute the unauthorized practice of law by lawyers, but is silent on the activities of nonlawyers; ABA Model Code DR 3-101, Aiding Unauthorized Practice of Law, Section (A) states “a lawyer shall not aid a non-lawyer in the unauthorized practice of law.” Where does one go to determine which services should not be provided by a paralegal? Read the comments under Guideline 2 (above): A lawyer…may employ nonlawyers to do any task for him except counsel clients about law matters, engage directly in the practice of law, appear in court or appear in formal proceedings as part of the judicial process, so long as it is he who takes the work and vouches for it to the client and becomes responsible for it to the client. (referencing ABA Opinion 316 (1967)) Repeat after me: I will not engage in the unauthorized practice of law.

Avoiding UPL That’s simple … know, understand, and follow the rules.

Thou shalt not: give legal advice, accept cases, set fees, plan legal strategy, make legal decisions, take depositions, or appear in court, unless appropriately credentialed in a state that regulates non-attorney service providers, and only to the extent that those services are permitted.

When in doubt, seek expert guidance – the NFPA Ethics Board, ABA/state bar ethics divisions; ethics opinions; talk to a recognized subject matter expert. Be extremely cautious when discussing legal issues on social media. Your answers could easily be construed as legal advice.

The Intersection of Technology and Ethics Compliance with the rules governing competence, professional integrity, professional conduct, confidentiality, disclosure, and UPL is directly connected to, and sometimes adversely affected by, technology.

With all these tools and advances, we find ourselves at the very busy intersection of technology and ethics. Not only does tech make it possible to work from practically anywhere, it also makes it easier to inadvertently cross ethical lines.

Confidentiality Attorneys and paralegals use electronic means to be more autonomous and productive, anywhere and anytime. Files stored offsite can be viewed and edited in real time, by several users, from any Internet-connected device, and meetings, CLEs, and hearings are often conducted virtually.

Improperly managed technology can lead to breaches of confidentiality.

Consider the nature of the information transmitted from client to attorney, attorney to paralegal, and so on. Paralegals often have access to confidential and privileged information, including clients’ personal information: credit reports, Social Security numbers, accounting, financial and medical records, and other forms of protected data.

In August 2011, the ABA Standing Committee on Ethics and Professional Responsibility published Formal Opinion 11-459, Duty to Protect the Confidentiality of E-Mail Communications with One’s Client. Among other things, the opinion addresses the risk of third-party access to any 31

online communication: … A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, to which a third party may gain access. The risk may vary. Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client. (emphasis added) Every online activity has the potential to reveal confidential information. The legal and ethical obligation to protect the confidentiality of client data applies equally to paralegals and attorneys.

Security On May 22, 2017, the ABA Standing Committee on Ethics and Professional Responsibility issued (Revised) Formal Opinion 477R*, Securing Communication of Protected Client Information: A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.

Security is crucial. Not only do you need to know the physical location of your devices and servers, as well as the type of Internet connection being used, but it is also essential to implement and follow safety protocols. To quote Ben Schorr, author of “Office for Lawyers” (www.officeforlawyers.com), “security is a process, not a product.”

What should your process be?

•

Whenever possible, avoid public hotspots and use a secure Internet connection to reduce exposure to eavesdropping, piggybacking, and hacking. When a secure connection is unavailable, use some form of Virtual Private Network (VPN) software to encrypt the signal.

•

Use (and regularly change) complicated passwords/passphrases. Short, simple passwords are vulnerable to dictionary and brute force attacks. The best passwords/passphrases contain 12 or more characters and incorporate upper- and lower-case letters, symbols, sPACE®s, and punctuation.

•

Install and enable VPNs, firewalls, and programs to detect and remove adware, spyware, malware, viruses, browser hijackers, cookies, data miners, temporary files, and virus remnants.

•

Read Privacy Statements and Terms of Service for everything - website access, downloads, web hosting, cloud service providers.

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o Confirm where the servers are located and where the data is stored – servers and data stored outside the U.S. are subject to the laws of the jurisdiction in which they are physically located. o Determine whether they employ secure technology to protect your information: what information do they collect and for what purpose; to whom is access to the information permitted; and how is the information backed up? o Look for sites that implement Secure Sockets Layer (SSL) Transport Layer Security (TLS) protocols and HTTPS (Hypertext Transfer Protocol Secure) encryption.

Remember, once information has been committed to the interwebs, it is there forever. Just like the parable of the gossip and the feather pillow. Information is shared, stored, and cached.

Social Media and Privacy “Social media is a valuable courtroom tool.

Posts, tweets and photos can be used as evidence to prove your case so don’t get rid of them!

And remember, say it forget it, write it regret it!”

- Judge Marilyn Milian Society and professionals are far too complacent about sharing information. We liberally supply our names, phone numbers, e-mail addresses, and more on online forms. All it takes is a simple click of the mouse to release that information, irretrievably, into the ether and potentially into disreputable hands. Our easygoing attitude toward sharing information combined with the trend toward BYOD (bring your own device) is a recipe for disaster.

As soon as you connect to the Internet, information becomes vulnerable. Whether you are reading or sending e-mail, participating in a listserv, posting to Twitter, updating Facebook, submitting a blog post, commenting on LinkedIn, making online purchases and payments, checking your bank and credit card accounts, IMing, chatting, Skyping, making VoIP calls, clicking a link, or sending information from your cellphone or tablet - you have flung the proverbial window wide open. Think before you speak, type, text, send, post …

Paralegaling in the 21st Century A Paralegal by Any Other Name Did you know? “California law restricts the term “paralegal” to those who are employed by an attorney. Paralegal services may only be provided to a licensed attorney who directs the work and compensates the paralegal; and it is illegal for a paralegal to advertise to the general public, or to provide services and accept compensation from anyone who is not an active member of the California State Bar.” Freelance Paralegal Freelance Paralegals, a/k/a contract paralegals and sometimes as virtual paralegals, (are expected to) have the same education and qualifications as “traditional” paralegals who are retained asneeded to perform legally substantive tasks delegated and reviewed by supervising attorney(s).

They may or may not have a real-life component to their transactions with clients; some might be permitted to provide general information & administrative services to the public.

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Virtual Paralegal Virtual Paralegals are the 21st century incarnation of freelance or contract paralegals. Like their counterparts, they are expected to have the same education and qualifications as “traditional” paralegals and are retained as-needed to perform legally substantive tasks delegated and reviewed by supervising attorney(s). The virtual designation refers to the means by which tasks are assigned and services are performed and delivered. Most virtuals have little, if any, real life clientcontact, and might be permitted to provide general information and administrative services to the public.

Independent Paralegal This is designation something of a misdirect and is being replaced as new paralegal roles are defined. Independent paralegals are generally forms practitioners or document preparers who provide and deliver primarily clerical - not “legally substantive” - services directly to the public.

They operate without attorney supervision and may or may not be regulated or … paralegals.

Non-Attorney Legal Support Several states have authorized and oversee legal support services provided by non-attorneys.

These professionals are permitted to provide general legal information but may not give legal advice.

•

Arizona Legal Document Preparer (LDP): certified to provide document prep assistance and services to clients not represented by counsel.

•

California Legal Document Assistant (LDA): experienced professionals, often paralegals, authorized to prepare legal documents at the client’s direction and are REQUIRED by law to be registered and bonded.

•

Washington State Limited Practice Officer (LPO): authorized to select, prepare, & complete pre-approved forms for use in closing a loan, extension of credit, sale, or other transfer of real or personal property.

Limited License Legal Technician Washington State was the first to establish the role of Limited License Legal Technician (LLLT), other states are starting to follow the trend. LLLTs are trained and licensed to consult with and advise individuals in divorce, child custody & other family-law matters, obtain relevant facts from clients, inform clients about possible legal implications, advise clients how best to manage their legal action, prepare clients to represent themselves in court proceedings, perform legal research to answer clients’ legal questions, and draft legal documents to be filed with the court.

They cannot represent clients in court.

Rogue Paralegals Individuals who may or may not be actual paralegals and have deemed themselves above the rules. ALL. THE. RULES. •

They are NOT legitimate, ethical non-traditional paralegals.

•

They do NOT have authorization to provide limited services to the public.

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•

They advertise as paralegals; sometimes claiming certification to add an air of legitimacy.

•

They defiantly perform work without attorney supervision (even from afar).

•

They offer legal services to the public.

•

They advertise to the public.

•

They set/negotiate fees with the public to provide legal assistance without attorney involvement.

Ethics and the Non-Traditional Paralegal There’s a right way and an easy way ... you need to protect yourself, your reputation, and your livelihood. Do not rely on Google and Facebook. Talk to experienced, qualified, non-traditional paralegals and hire a business attorney.

Remember, you’re starting a business - you need to know what is and is not allowed in your state. Do you need a business license or other credentials? What are the ramifications of working as a sole proprietor versus creating & registering a business? Do you have a binding contract, how will you get paid? What about taxes?

Non-traditional paralegals are held to an even higher standard than their traditional, brick & mortar counterparts. They are bound by all the rules discussed above and state and local rules, statutes, laws, and ordinances.

As small business owners (translation: self-employed), non-traditional paralegals are crazy busy. In addition to being top-of-their-field professionals providing paralegal support, they are also responsible for their own day-to-day business operations – anyone of which is a potential ethical dilemma.

Ethical Dilemmas “Ethics is not about platitudes, let alone tautologies, logic or mathematics, but about difficult choices - dilemmas.”

- Martin Cohen The Newbie Paralegal You recently graduated from a paralegal program with zero law office experience. Money is tight and you’re stuck in an endless cycle of “you need experience to get the job” and “you need the job to get experience.” The thought crosses your mind, “What if I embellish my skills, experience and education on my resume? After all, we did all those work things in class …” or, “They told us about freelance/ virtual/contract paralegals in class. I’ll do that! The attorneys that hire me will train me, right?”

See, Model Code of Ethics Rule1: Competence and work your way down the list.

The Moonlighting Freelancer 35

During the day, you’re an overworked, underappreciate, and underpaid, attorney-supervised paralegal. Wouldn’t some extra money come in handy? You think, “I’ll start a side gig as a freelance paralegal. I have access to hardware and software here at the office and I have a supervising attorney … let’s roll!”; or “I can do divorce petitions in my sleep. I know the rules and have the documents. All I need to now is advertise and people will be knocking down my door”; or “My boss doesn’t need to know what I do after hours. That’s my business!”

Moonlighting as a paralegal while employed by an attorney/law firm/legal department is likely prohibited by the employee handbook. Even if it isn’t, you’ve just violated Model Code of Ethics Rules1, 2, 3, 5, 6, 7, and 8.

The Misdirected Attorney Attorney talks to you about expanding the practice into [let’s say] bankruptcy. “Wonderful,” you say, “what is your experience with bankruptcy?” “Well, none really; but it’s all form-based. How difficult could it be?” OR “I practiced bankruptcy 20 years ago. Now seems like a good time to get back in.”

“I’ll put you in charge. You can manage the practice for me.”

Model Code of Ethics Rules1, Competence and 8, UPL immediately come to mind.

Or these winners: •

I don’t need to review it. I trust you; go ahead and file it.

•

Just sign my name.

•

Tell the client to hide the truck from the repo guys…

•

“Yeah. I know it’s a fax with the client’s signature, but I’m telling you to notarize it anyway.”

The Misinformed Public Paralegals are still misunderstood. Most people (and some attorneys) don’t know what we do.

Everyone just wants to ask a question.

•

“You’re a paralegal. Don’t you do everything anyway?”

•

“I don’t want to have to pay a lawyer.”

•

“I have an attorney, but he charges too much.”

•

“I could pay you under the table …”

•

“I just need your advice about [a legal matter].”

•

“It’s just a simple question.”

•

“I want you to receive the notices and call the attorney to tell him what to do next.”

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#DontDiscussBusinessInPublicLikeThis (Discretion #FAIL) Put your on paralegal suit and consider a typical day at work, and, SCENE: 1.

You’re in the elevator with co-workers talking about opposing counsel.

2.

You’re at lunch with colleagues when the conversation turns to that PITT (“Pain in the Tuchas”) client.

3.

You’re driving home from work and you call your BFF (hands-free connection, of course) to whine about your day.

You’re in line somewhere, phone in hand, checking office email or texting a colleague.

4.

You’re at the park on the phone discussing trial details with your supervising attorney.

5.

You’re on the train, a plane, or in some very public waiting area working on your tablet or laptop.

6.

You’re at a professional event comparing war stories.

7.

You post a hypothetical to an online forum on Facebook, LinkedIn, an “old school” listserv, or discussion board.

Remember Model Code of Ethics Rule 5? “A paralegal shall not engage in any indiscreet communications concerning clients.” [emphasis added] In short, we’re bound by the rules to be discreet to avoid inadvertent or unauthorized disclosure.

Although the rules seem to place more emphasis on electronic mishaps and that which occurs within the office, I submit that rules extend to the spoken word and the manner in which we conduct ourselves outside the office … at all times.

With the rules in mind – what considerations should have been made regarding the above scenarios?

1.

“The elevator” - Were you the only occupants at the time? Did someone board the elevator while you were in mid-conversation? Is there a chance that OC or the other party has offices in your building and overheard your conversation? How much did you say and in what context? From an alternative perspective, you’re alone on the elevator when some attorneys from another firm, in the midst of a heated discussion about a settlement agreement, join you.

As far as they’re concerned, you’re invisible.

2.

“At lunch” - Who can hear you? If you think the answer is, “It was noisy, no one could hear us.” You’re wrong. You heard each other, didn’t you? How specific were your comments?

Did you name names or other details about the case?

3.

“Driving home” - Granted, you’re alone in your car and your BFF doesn’t even work in a law related industry. How could there be an issue? Did you rant about a colleague or client, or discuss the details of a file you’re working on?

4.

“In line” - I bet you’re thinking, it’s a tiny screen. Who would take the time or energy to read over my shoulder? Does it really matter? A friend recently told me she’d been able to clearly

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see some random guy’s entire text conversation while she was sitting inside a coffee shop and he was sitting outside merrily texting along.

5.

“At the park” - Who was around you? Did it occur to you to mention where you were or suggest that you would call back when you were in a more secure location? How detailed was your conversation?

6.

“On the train” - Was it a secure Wi-Fi connection? What about your screen? Could anyone look over your shoulder and read that pleading your drafting? Maybe it’s time to invest in a VPN and privacy screen protector.

7.

“At a professional event” - This one should be obvious. The attendees are about as diverse a group as you can get and you’re in public (semi-private doesn’t count). Unless you’re speaking in Enigma level code, it’s likely you’re unintentionally giving away the proverbial farm.

8.

“Posting to a forum” - How often have you read and responded to questions posted by other paralegals requesting information or clarification on a situation? Or perhaps you’ve posted your own query - how well disguised was your hypothetical? Did you take time to consider that someone from the other side might be a member of the group – lurking in the background? Did you disclose information by way of an innocent inquiry? Did you commit UPL??

Conclusion/Summary “Because ethics matter. And no matter who you are or where you sit in the nation, you don’t get to pretend you don’t have the privilege and obligation to care about ethics, because you do.”

- Jamie Collins The best, popular example of what not to do … every episode of “Suits.” There is no justification for unethical behavior – EVER. Just follow the rules and be honest, dependable, reliable, consistent whether you are a traditional, special designation, freelance, contract, or virtual paralegal.

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Sample Questions Q:

Who may a lawyer split fees with?

A. another lawyer B. a paralegal C. a client D. an investigator

A:

(A.) Lawyers are strictly prohibited from splitting fees with anyone other than another lawyer, as per the ABA Model Rules of Professional Conduct.

Q:

Your firm has a strict policy about accepting client gifts. At the conclusion of a case, the client offers to treat the staff to dinner. Your response should be: A. Thanks; but, no thanks B. Thank you; when would you like to arrange this dinner C. Thank you; let me check with my boss D. Thank you; what did you have in mind

A:

(C.) When in doubt, always check with your boss.

Q:

Which of the following is part of the role of a paralegal?

A. negotiating a settlement B. agreeing to a set fee C. drafting discovery requests D. explaining the law to a client

A:

(C.) Paralegals are allowed to draft discovery requests and other documents for review by lawyers. The other choices are considered practicing law and, thus, would constitute the unauthorized practice of law (UPL).

Q:

Which of the following would be considered unauthorized practice of law?

A. delivering a message from the lawyer to the client B. explaining the consequences of a settlement offer C. explaining to a client what an answer is D. gathering documents for a discovery response

A:

(B.) Explaining the consequences of a settlement offer is considered to be practicing law, since it involves interpretation of issues and consequences as a result of executing a settlement document.

Paralegals are allowed to deliver messages to clients and make explanations as to general matters. They are also allowed to gather documents regarding discovery responses; they do not determine which documents are appropriate, but merely to gather them for review by the lawyer.

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Q:

You notice that your coworker’s Facebook page mentions a client by name. What should you do?

A. speak with your friend about removing it B. speak with your boss about it C. do nothing D. speak with the client about it

A:

(B.) The only person who can fix the posting is the owner of the Facebook page. Law firm employees are agents of the firm and subject to the supervision of lawyers under a state’s Rules of Professional Conduct.

Q:

Which of the following is the most unlikely consequence for ethical violations?

A. legal action B. right to work as a paralegal C. expulsion from the paralegal association D. termination of employment

A:

(B.) Ethical violations will not necessarily affect the paralegal’s right to work as a paralegal, but the damage to one’s reputation is likely to be irreparable. Generally, paralegals cannot be directly sanctioned for violating the ethical rules governing attorneys.

Q:

All of the following are functions of an Ethical Wall, except: A. to protect communications between client and lawyer/paralegal B. to protect clients from conflicts of interest C. to make client files easily accessible by anyone in the firm D. to allow the firm to continue to represent other clients

A:

(C.) Making files easily accessible by anyone is the opposite of the purpose of the Ethical Wall.

Q:

All of the following are examples of breach of confidentiality except: A. conversations about the case in an office elevator B. computer review of a case/draft pleadings at Starbucks C. discussions between client – lawyer – paralegal about the matter D. emails sent to family members about your firm representing a famous actor

A:

(C.) Discussing the case within the legal team is essential to proper representation.

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Domain 01: Paralegal Practice U.S. LEGAL SYSTEM Administrative Law Administrative law, commonly called regulatory law, is the branch of law governing the creation and operation of administrative agencies, both federal and state. Government agency action can include rulemaking, adjudication or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law and was created to protect public interest.

Administrative law is created and enforced by an administrative body or the President (federal) or Governor (state). There are two main types of administrative law: 1) rules and regulations; and 2) administrative decisions. On the federal level, there are proposed regulations of the federal administrative agencies; executive orders and other executive documents; and news from federal agencies, such as announcements inviting applications for federal grants, which are first published in the Federal Register.

When these rules and regulations are adopted by the agencies, they are then published in the Code of Federal Regulations (C.F.R.).

Any disputes which may arise in any of these administrative agencies are presided over by an Administrative Law Judge. An Administrative Law Judge (ALJ) acts in the same way as a trial judge, by listening to witness testimony and considering evidence offered in order to determine the facts of the case and, finally, applying the appropriate law in order to make a decision. Typically, the ALJ issues a finding of fact, which is merely a recommendation to a higher official within that particular agency who will then make the final decision. An ALJ is appointed to his/her position and is not elected like a typical trial judge. It is important to keep in mind that judgeships under Article II of the U.S. Constitution (e.g., U.S. Supreme Court and USDC) are appointed and Article III judges (e.g., magistrate judges and bankruptcy court judges) are elected to the bench. Of course, there are exceptions, such as when a judge is appointed to fill a vacancy until the end of the existing term.

Administrative agencies governed by administrative law are still protected by the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution, specifically procedural due process. See Domain 02: Substantive Areas of Law - Criminal.

Branches of the Government Our Civics lessons from junior high school taught us that there are three branches of government at both the federal and state levels. The framers of the Constitution created three equal, but separate, government branches to prevent any one branch from having too much power. Our country’s government rests on a separation of powers between these branches of government. This is known as federalism.

The three branches of government and their respective duties on the federal level are: The Executive Branch This Branch consists of the President, Vice President, Cabinet and federal government agencies. The Executive Branch is charged with carrying out, executing or administering law.

The Legislative Branch This Branch consists of the U.S. Senate and U.S. House of Representatives, a/k/a Congress. The Legislative Branch is charged with the responsibility of making or enacting the law.

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The Judicial Branch The courts create the Judicial Branch. The Judicial Branch is charged with interpreting the laws.

The duties of each branch on the state government level are precisely the same as the duties on the federal government level. The specific differences exist in the elected officials who oversee each branch of government. In state government, it is the Governor who enforces the duties of the Executive Branch, and the state senators and state representatives (a/k/a legislature), who enforce the duties of the Legislative Branch. The Judicial Branch, again, consists of the courts; it is the courts’ responsibility to interpret the laws on the state level.

While it is important to know the roles of all three branches, the Judicial Branch is the most important branch of government paralegals deal with routinely. Federal and state courts may exercise only judicial powers and perform only judicial functions, and judges can decide only cases that are before them. A court is an institution that the government sets up to settle disputes through a legal procession. Court is where it is decided what has occurred and what should be done about it as far as the law of the land is concerned.

Case Law The United States operates under a common law legal system. Common law is the body of law derived from judges’ decisions as opposed to statutes or even the constitution. Those judges’ decisions are known as case law. Case law is the law found in the collection of reported cases that form all or part of the body of law within a jurisdiction; and, because of stare decisis, contributes a large part of the legal rules that apply in modern society. Jurisprudence has become synonymous with case law.

Case law is distinguishable from statutory law in that case law is judicial and statutory law is legislative.

Case law is a judicial interpretation of statutes, and even the Constitution. These decisions, known as precedents, are binding on all courts within the same jurisdiction and must be followed as “the law” in similar cases. Typically, the primary parts of a court decision consist of the facts at issue and the judge’s holding. The decision may also contain a concurring opinion (the judges who agree with the writer’s decision) and a dissenting opinion (the judges who disagree with the writer’s decision). Stare decisis is the court’s duty to follow precedent involving similar issues when deciding the current issue. Case law may be overturned and may no longer be precedent IF the statutory law subsequently changes or IF the issues in the precedent are subsequently declared to be unconstitutional.

Codes - U.S. and State Statutes as Opposed to Common Law If case law is “the law,” then what is statutory law? A statute is written law passed by a legislature on the federal or state level. A statute declares, commands or prohibits something. Statutes can be found, organized by subject matter, in publications called codes, e.g., United States Code on the federal level and varying, yet similar, titles on the state level. For example, in Arkansas, the statutory publication is called the Arkansas Code of 1987 while the same book in Pennsylvania is called The Pennsylvania Code.

Statutes are the laws that we live under every day.

If someone violates the law either criminally or civilly, he/she is subject to some form of punishment under these laws. Punishments can range from the most severe - criminal punishment of death - to slight, such as a monetary punishment if found to be in violation of a non-criminal statute. Again, these punishments, or how to arrive at them, for any infraction, are contained in statutes. One thing to note regarding punishment is that statutory law only gives penalty ranges or recommendations, not the “exact” punishment. Final punishment can only be decided by a jury or judge in a trial setting in the event a compromise or settlement of a case is not reached prior to trial. Specifically, in the federal criminal 42

system, a Federal Sentencing Guidelines Manual exists, which judges may refer to when considering the punishment of a defendant who has plead guilty. Civilly, the forms of punishment to be considered are commonly known as compensatory and punitive.

Constitutional Law Constitutional law is the area of law dealing with aspects of the Constitution. The U.S. Supreme Court hears cases involving Constitutional issues. Those who work in the area of constitutional law may also be involved in the actual lobbying of the legislative branch of government to change the existing laws due to changes in society. When the Constitution was originally drafted it was written by dipping a feather into an inkwell by future United States President James Madison (then Secretary of State). Now we have word processers, spell check and printers to draft our legal documents. Times change, and attorneys and paralegals who work in this area of law challenge our Constitution to keep society moving forward.

Constitutional law, is a highly specialized area of law.

There have been many cases - over the course of the 200+ years our legal system has been in existence that have been paramount to our judicial system, e.g., Miranda v. Arizona, 384 U.S. 436 (1966)(no interrogation without first advising of rights - hence the term “Miranda warning”); Brown v. Board of Education, 349 U.S. 294 (1955)(outlawed segregation in public education) and Terry v. Ohio, 392 U.S. 1 (1968)(search and seizure - or stop and frisk - does not violate the Fourth Amendment). But the most important, landmark case which was the basis for the U.S. Supreme Court’s very first decision declaring the U.S. Constitution as unconstitutional for the very first time is Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803). In Marbury, the U.S. Supreme Court held that the Judiciary Act of 1789 was unconstitutional. Thus, judicial review came into existence. Since then, the U.S. Constitution has been amended 27 times. Of those 27 amendments, the first ten are collectively known as the Bill of Rights. These ten amendments are perhaps the most important constitutional amendments which Con law focuses upon due to their strict protection of our freedoms and rights under the Constitution.

Court Personnel Most paralegals have frequent contact with court personnel. The only member of the court paralegals will not have direct contact with is the judge. The following is a listing of court personnel and their respective duties: •

Judge – Presides over court proceedings; makes the determination whether evidence the parties wish to introduce is illegal or improper; gives the jury instructions in a jury trial setting about the law that is at issue in a case and the standards a jury must use when in deliberation; determines the facts and makes a decision in a case in a bench trial; and sentences defendants in a criminal case.

•

Magistrate Judge – Helps judges with their docket overload. A magistrate judge can conduct all procedures in a jury or non-jury civil matter provided all parties consent, as well as trials of persons accused of misdemeanors if the defendant consents.

•

Courtroom Deputy – Responsible for administering oaths to witnesses, record and exhibit keeping and preparing judgment and verdict forms in jury trials.

•

Law Clerk – Generally, a research assistant who reviews motions and briefs submitted in court cases and prepares memoranda for review by the judge which contain the issues and positions of the parties; also, researches case law.

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•

Court Reporter – Records everything that is said during trial or introduced into evidence. The court reporter produces a written transcript of the trial if either party appeals or requests a copy of the transcript.

•

Court Interpreter – If a party or witness does not understand or speak English, the court uses an interpreter to interpret exactly what is being said by a witness. The interpreter must repeat verbatim any and all testimony, questions or explanations involving the witness and questions from the attorneys or judge while this particular witness is testifying. The interpreter cannot interject his/her own opinions or comments or summarize the testimony. It is the English interpretation of the interpreter which becomes part of the official court record.

Court Rules Court rules govern the practice and procedure of the courts. Both the federal and state court systems have a separate set of court rules. Each state’s rules vary, but the federal rules are the same throughout the U.S. The federal court rules are: •

Federal Rules of Civil Procedure (Fed. R. Civ. P.);

•

Federal Rules of Criminal Procedure (Fed. R. Crim. P.);

•

Federal Rules of Appellate Procedure (Fed. R. App. P.);

•

Federal Rules of Bankruptcy Procedure (Fed. R. Bankr. P.);

•

Federal Rules of Evidence (Fed. R. Evid.); and

•

Rules of the Supreme Court of the United States.

Consequently, each federal district court also has its own set of local rules; some of the judges may have specific, individual rules as well. Each court’s rules can typically be found on that court’s website.

Court Systems Federal Court System Federal courts uphold the laws passed by Congress and disagreements involving the Constitution. The first courts were established under Article III of the U.S. Constitution and are known as Article III courts. In addition to the Supreme Court, the federal courts consist of two other types of courts: •

the U.S. District Courts (comprised of 94 district courts); and

•

the U.S. Circuit Courts of Appeals (comprised of 13 judicial circuits).

Federal courts hear criminal cases which involve violations of federal criminal statutes and civil cases in which non-criminal federal laws and the Constitution are at issue. In a civil case, if the parties are from different states or one is a citizen of a foreign country and more than $75,000 is at stake, the federal court system is the proper court of jurisdiction. This is known as diversity jurisdiction.

Article III also established two courts of special jurisdiction: •

the U.S. Court of Claims; and 44

•

the U.S. Court of International Trade.

These courts are called courts of “special” jurisdiction because they are just that - specialized. Unlike the U.S. District and Circuit Courts, which are courts of general jurisdiction and can hear most any case, the courts of special jurisdiction hear only cases involving specific issues, e.g., money claims against the government (tax refunds), customs issues and patent issues.

All judges of the Article III courts are appointed by the President and are approved by the Senate.

These appointments are lifetime appointments.

In addition to the Article III specialty courts, Congress established a second type of specialty federal courts, as follows: •

the Magistrate courts;

•

the Bankruptcy courts;

•

the U.S. Court of Military Appeals;

•

the U.S. Tax Court; and

•

the U.S. Court of Veterans’ Appeals.

The Magistrate and Bankruptcy courts are attached to the U.S. District Courts. The U.S. Court of Military Appeals, U.S. Tax Court and U.S. Court of Veterans’ Appeals are called Article I courts, which is also given its name from establishment under Article I of the Constitution. The judges of the Article I courts are also appointed by the President and approved by the Senate. However, these judges do not hold lifetime appointments - their appointments are generally limited to 15 years.

State Court System The state courts hear cases involving state laws. No two state court systems are exactly alike, but are made of up trial and appellate courts. Some state courts consist of circuit courts, superior courts, district courts, courts of common pleas and municipal courts.

The state court system hears cases involving the violation of state laws. A case can be filed in both the state and federal systems contemporaneously if both state and federal statutes have been violated.

Double jeopardy would not attach in a criminal case. More often than not in criminal cases, the case is usually tried on the federal level and the state generally elects to not prosecute if the outcome is favorable to the prosecution. This is generally the rule, but there is always the exception. See Domain 02: Substantive Areas of Law - Criminal.

The state court system also hears cases involving family law, probate law and juvenile law. The federal system does not hear these types of cases since there are no federal statutes involving these areas of law. The state courts also hear cases involving interpretations or constitutionality challenges of its state Constitution.

Appellate System U.S. Courts of Appeals In each of the 94 districts, there are thirteen regional circuits which comprise the U.S. Courts of 45

Appeals. If a case on the district court level is not favorable to one party or the other, the case can be appealed to the Court of Appeals.

U.S. Supreme Court The most superior court in the United States; known as the court of last resort. The U.S. Supreme Court is located in Washington, D.C. and is comprised of a Chief Justice and eight Associate Justices. The Supreme Court hands down the final interpretation of federal legislation. It also has authority to act directly as to individuals and states.

Appeals to the U.S. Supreme Court come from either the U.S. Courts of Appeals or a state supreme court. However, just because a person desires to appeal their case to the highest court in the land does not automatically mean that the case will be heard. Each year, the Court receives somewhere in the neighborhood of 10,000 cases for review. An interesting fact about the Court is that it only accepts less than two percent of the cases it is asked to review. The U.S. Supreme Court decides more business and corporate-related cases than cases involving criminal justice.

Jury vs. Bench Trial Even though a defendant or litigant is entitled to a trial by jury under the U.S. legal system, some elect to allow the judge to hear his/her case. This is known as a bench trial. In a jury trial, a specific number of competent people are chosen to listen to witness testimony and review evidence in order to render a verdict in a case. In a bench trial, the judge is the one who will act as the trier of fact without a jury - and will make his/her decision based on witness testimony and evidence presented.

Whichever route is chosen, the burden of proof remains the same with either a jury or bench trial.

Criminal vs. Civil Law Criminal law involves an action that violates the criminal laws/codes. Civil law involves disputes between persons or organizations that violate non-criminal laws. Both types of cases can be filed in either federal or state courts. Civil cases generally seek an award in the form of monetary compensation for being “wronged” by the other party; criminal cases seek the prosecution and punishment of an individual for committing a criminal act.

The main and most important difference between criminal and civil cases is their level of proof. There are three standards of proof by which a jury or trial judge must consider when rendering a verdict or decision in either type of case.

•

Reasonable doubt is the highest degree of proof and only applicable in felony criminal trials and not in preliminary criminal proceedings. This standard of proof is mandated by the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution because criminaldefendants face having their freedoms being taken away if convicted. Reasonable doubt has no perfect definition; it is often explained many ways. The bottom line, in order for reasonable doubt to either exist or not exist in the minds of the jury or judge hinges upon the evidence and the case presented by the prosecutors, e.g., State of Florida v. Casey Anthony.

•

Clear and convincing evidence is the second highest degree of proof and is used in administrative cases, civil cases and preliminary criminal hearings (do not confuse with criminal trials). Clear and convincing evidence is when there is a high probability that the evidence supports the presented facts as true.

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•

Preponderance of the evidence is the lowest degree of proof and is generally the standard in most civil cases. Preponderance of the evidence simply means that one side has more (or better) evidence than the other.

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Sample Questions Q:

The U.S. District and Circuit Courts are courts of jurisdiction whereas the U.S. Court of International Trade is a court of jurisdiction.

A. Limited (Special)/General B. General/Limited (Special) C. Each are General Jurisdiction Courts D. Each are Limited (Special) Jurisdiction Courts

A:

(B.) Jurisdiction refers to a court’s authority to hear a legal matter brought before it. The U.S. Court of International Trade is a limited jurisdiction court because it can only hear matters within its specialization. Another example of a limited jurisdiction court would be the U.S. Tax Court, which can only hear matters pertaining to tax issues. The U.S. District Courts and Circuit Courts, however, can hear most any cases and, as such, their jurisdiction is referred to as “general.”

Q:

Federal courts can hear civil cases if the parties are from different states or one is a citizen of a foreign country and more than $75,000.00 is at stake. This is known as: A. Res Judicata B. Laches C. Diversity Jurisdiction D. Federalism

A:

(C.) Jurisdiction is a courts authority to hear a legal matter before it.

Q:

The Federal Rules of Bankruptcy Procedure and the Federal Rules of Evidence are examples of: A. Procedural Law B. Substantive Law C. Procedural & Substantive Law D. Administrative Regulations

A:

(A.) Procedural laws commonly dictate the way that legal matters must be handled in the court system. For example, a Federal Rule of Civil Procedure might require a defendant to file an answer to discovery within thirty days. This Court Rule is a procedural rule. Another example of procedural law are the Rules of Evidence. The rule that says hearsay evidence is not admissible is a rule that outlines the procedures for what evidence is admissible and what evidence is not in a legal matter.

Q:

The branch of law governing the creation and operation of agencies, both federal and state, is?

A. Administrative Law B. Statutory Law C. Common Law D. Rules of Court

A:

(A.) Also called regulatory law, administrative law is created and enforced by an administrative body or the President (federal) or Governor (state). There are two main types of administrative 48

law: (i) Rules & Regulations; and (ii) Administrative decisions which are made by Administrative Law Judges (ALJ).

Q:

The branch of government is charged with carrying out, executing, or administering law is?

A. Executive B. Legislative C. Judicial D. Administrative

A:

(A.) The executive branch, which consists of the President, Vice President, Cabinet and federal government agencies, is charged with carrying out, executing, or administering law.

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Domain 01: Paralegal Practice

LEGAL RESEARCH & WRITING Legal Research is an important skill for the paralegal to acquire. This skill may take many forms, ranging from hard copy research in ancient law books to the latest Internet search. A valuable paralegal will be proficient in all types of legal research and have a working knowledge of the sources from which certain types of legal authority can be identified. There are many considerations, pros and cons, with the various types of legal research and methodologies available to today’s paralegal.

Legal research has many purposes, but the primary purpose is to provide the legal authority on which courts and others can rely in determining legal issues. When conducting legal research, the paralegal is seeking an answer to a legal question. Sometimes the legal question to be researched is given to the paralegal by an attorney or senior paralegal; at other times, it will be up to the paralegal to define the legal question. This chapter will discuss the steps involved in undertaking a legal research project, types of legal authorities and what kind of information can be elicited from each.

Historical Background of the American Legal System The American legal system includes a mixture of statutory, civil and common law. Not unlike the colonists who settled this country, American law is something of a melting pot. It incorporates legal traditions with foundations in the Norman, German, Roman, French, Native American and English legal systems. Civil law, sometimes referred to as “Roman” law, is based on a series of written laws with roots in Rome’s Justinian Code. Over time, civil law has been modified, but it is still the prevailing law throughout most of Western Europe. Civil law is not widely used in the United States, although it is the foundation for law in the State of Louisiana. Four years before Louisiana became a state in 1812, the former French and Spanish colony adopted a version of the Napoleonic Civil Code, which remains today.

The code of justice used by the American military and some elements of admiralty law are also based on civil law.

Most of America’s legal tradition is based on English common law. Common law dates back to a Norman king, Henry, II, who in the twelfth century, ensured that the decisions of English grand juries, kings, magistrates and later, and juries were written down. Ultimately, these decisions were grouped by type of case. Then, when courts were asked to determine similar issues, these early decisions were reviewed and, if relevant, applied to the current case.

This principle of relying on prior judicial decisions is known as stare decisis. Literally, stare decisis means to let the decision stand. Generally, these prior decisions should be followed in subsequent cases that have similar or identical factual or legal issues. Judges do, from time to time, depart from stare decisis, but on those infrequent occasions where they do not follow this doctrine, the legal opinions will typically go into great detail as to why precedent was not followed. Stare decisis is a powerful principle and it is the embodiment of common law.

In the absence of any statute-making body, common law was all that was available. In England, the body of common law grew and became the law of the land. Parliamentary, or statutory law, did not exist in England until after the Magna Carta in the early thirteenth century. When they immigrated to the colonies, the English colonists brought with them the English judicial tradition, rich in common law.

After the American Revolution, American jurisprudence continued and, to this day, continues to rely heavily on common law. The U.S. Constitution is the supreme law of the land; however, our judicial system was created to continue the tradition of common law jurisprudence.

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Most of the new states modeled their judicial system after the federal government. In the United States, many court decisions interpret and augment the statutory laws. American common law modified the English common law system as statutes and administrative regulations became more important. However, the interpretation of those statutes and administrative regulations has greatly added to the body of American common law as we know it today. In fact, many areas of American law rely almost entirely on common law for authority.

What does this mean for the paralegal researching an issue? It is important to rely both on statutory and common law when conducting legal research. To rely on one without the other would not be prudent.

The Legal Research Plan It is important for the paralegal to formulate an organized research plan before beginning actual research.

Regardless of how small or complex the issue to be explored, the paralegal should go through each of the following steps: Review the Facts Discuss the facts with the attorney and other legal professionals working on the matter and perform a careful review of the file materials or other documents brought in by the client. Material facts should be corroborated as much as possible using documents provided by the client during the consultation.

There can never be too many questions. A good rule of thumb is to never go into an attorney’s office without paper and pen. Most attorneys prefer that the paralegal ask questions and do a good job on the assignment than to try to guess or waste time figuring out the assignment. Try not to ask the same question more than once unless clarification is needed for a previous answer.

Identify the Issues to be Researched Be clear on the focus of your research and the anticipated results the attorney is looking for. If this step is missed, the risk of missing the point of the assignment presents; it is also easy to get sidetracked on ancillary non-issues if the topic on which to focus has not been clearly identified.

Sometimes your research will not turn up the results your attorney is looking for. It is just as important to communicate to the attorney any negative findings or authority that is contrary to your client’s position so that he/she can be prepared for potential, adverse authority raised by the other side.

Identify the Types of Authority to be Researched Find out what type of law needs to be researched. For example, does the assignment include researching state, local or federal authority?

Identify Search Terminology (including key phrases, legal terms, names of statutes, etc.)

Your background research in the first two steps of your plan will assist greatly in this regard. Seek suggestions from the supervising attorney or senior paralegals. It is important to identify the proper search terms whether using manual or computer-assisted research. The right search terms help to locate authority in the indices, by topics in the Digests, and to formulate queries for computer-assisted legal research.

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Identify the Boundaries of the Project Will the research be confined to manual (hard copy) only, or will online, fee-based legal research tools be available? How much time should be devoted to the project? Is there any prior in-house research available on the same issue? Are there cost considerations or time limitations on your research? Be sure to identify the due date!

Validate the Authority Make sure to validate and update any authority before giving it to the attorney. Be certain any authorities have not been superseded, overturned, repealed or replaced.

Identify the Audience It is important to recognize to whom the results of the research will be addressed. Is the research for a court document, opposing counsel or an in-house memorandum? Is the client the ultimate audience of the research memo? It is important to know the audience so that the memorandum is worded appropriately. It is helpful at the outset too, before your research begins, to know who, ultimately, will be using the results of the research and how.

Identifying the Issue Before beginning legal research on a particular topic, it is imperative that the issue and scope of the research is clearly defined. Clarify your understanding of the issues and scope of the research with the supervising attorney beforehand.

If background information on an unfamiliar area of the law is needed, the paralegal should consult a legal encyclopedia to obtain a general understanding of the type of law to be researched. Not only are these encyclopedias a general source of information about particular areas of law, the annotations may be a useful starting point for additional research.

With experience, the paralegal should be able to identify a particular research plan that best suits his/her needs and the type of resources available. No two paralegals or attorneys will approach an issue in an identical manner. Legal research is a highly individualized process. Search strategies will be unique.

Good research, however, will embody all of the above steps. Many paralegals find it useful to develop a special form that asks these questions and to guide them in beginning of the legal research project, as well as help them to stay on track.

Types of Legal Authority Legal authorities fall into two main categories: •

Primary Sources; and

•

Secondary Sources.

Legal authorities that the court is obligated to follow are called mandatory authorities. By contrast, secondary authorities that the court can consider, in addition to or in the absence of any mandatory authority, are known as persuasive authorities. Courts generally follow any primary authority, issued in its jurisdiction or from a higher court, which is factually or legally similar to the issues in a particular fact situation presented. Remember that the legal doctrine of stare decisis requires the courts to stand by the 52

law that it decided if the issue is identical. Although stare decisis can be ignored by the court, it will only be set aside on a showing of good cause. Once a court has decided a matter and applied the existing law to a particular fact situation, it has established a precedent that it is obligated to follow. Your research task is to locate precedents that are relevant and applicable to your fact situation.

If there is no direct, mandatory authority or precedent in your jurisdiction, the court may look to secondary authorities that are factually similar to the issue at hand. Courts are not required to follow persuasive authority, but in the absence of any binding authority in your jurisdiction, a well-reasoned and compelling argument could be made using persuasive authority. It is reasonable to expect that one court will follow the logic and authority in similar or neighboring courts in the absence of any contradictory authority in its own jurisdiction.

Primary Sources Primary authority (also known as a “primary source”) is the actual law itself. Primary authority is the most important authority to the court. Since the court must follow its own primary authority when deciding legal issues, it is important to locate relevant, binding, primary authority when conducting legal research. In order of descending precedence, constitutions, statutes, administrative rules/regulations and orders and case law are examples of primary authorities. Primary authorities are interpreted within secondary authorities.

In the United States, there are often many areas of law to consider. Although this chapter will only focus on federal sources, the legal researcher must be aware that laws are made at three levels in this country: federal, state and local. Each of these could have particular relevance to any issue to be researched. Even if a case is in federal court, it might be important to research state law as well since most federal courts apply the substantive law of the local jurisdiction to matters before the court while using federal procedural guidelines.

Constitutions Constitutions are the most important of all the binding, mandatory, primary authorities. Whether at the federal, state or local level, constitutions are the ultimate authority and set out the government’s authority for its existence, powers and limitations. The United States Constitution is the foundation upon which all of our laws are based. It not only sets forth the authority on which the government operates and derives power, but also lays out the extent of governmental powers. The language is very easy to locate, and it is widely reproduced in many publications and on the Internet.

The United States Constitution sets out the three branches of government and the powers, duties and limitations of each. The three branches are: 1. The Executive Branch, which includes the President of the United States; 2. The Judicial Branch, which encompasses the American judicial system, the United States Supreme Court and the rest of the federal court system; and 3. The Legislative Branch, which includes the two houses of Congress. The Constitution sets out the separation of powers and creates a system of checks and balances among the three branches.

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Appended to the Constitution are 27 Amendments which set out specific rights. The first ten of these Amendments are known as the “Bill of Rights” and set forth the right to such inherent freedoms as freedom of speech, freedom of religion, separation of church and state, the right to privacy and the right against unreasonable search and seizure. These Amendments to the U.S. Constitution have made it flexible to adapt to changing issues affecting the nation.

Anyone working in the legal arena, whether in a law firm, government or corporate setting, should be familiar with the United States Constitution and the Amendments thereto. The Constitution empowers American courts to interpret statutes when there is a dispute; the resulting case decisions have enhanced and contributed to our American common law. Moreover, any power not specifically granted to the federal government is expressly reserved for the individual states.

States also have their own constitutions which outline powers within the state similar to the way the United States Constitution does for the United States. Many are modeled closely after the federal constitution, but are ultimately subject to the provisions and supremacy of the U.S. Constitution.

Statutory Law (U.S. and State Statutes) Statutory law is derived from legislation and is enacted by legislators. Statutes are acts of a legislative body and become the law governing conduct within the scope of the statute. Statutes are frequently enacted to promote public good and welfare, prescribe conduct, define crimes and appropriate public funds. Ordinances, which are statutes enacted by lesser governmental bodies often local legislative bodies - and regulations, which are rules enacted by administrative agencies, are also examples of statutes.

Federal statutes are enacted by Congress, signed by the President or passed over a presidential veto. Federal statutes begin life as bills and are introduced in a session of Congress. Bills are identified by the house in which they originate and are assigned a consecutive number based on that session of Congress. For example, a bill in the Senate would be identified as “S. 123” and referred to as “Senate Bill 123,” whereas a bill introduced in the House of Representatives would be identified as “H.R. 123” and referred to as “House Bill 123.” Before a bill becomes law, it must be passed by both houses and signed by the President. In rare cases where the President does not sign a bill approved by both houses of Congress, it is known as a presidential veto. Congress can override the presidential veto and a vetoed bill may still become law. If the President signs the bill (or the veto is overridden), the bill becomes a law, is identified as “Public Law” and is assigned a number that will correspond with the number of the congressional session in which it was passed followed by a hyphen and a second number that identifies the particular legislation.

The correct abbreviation for “Public Law” is “Pub. L. No.” For example, a Public Law citation for Pub. L. 101-244 refers to Public Law number 244 that was passed by the 101st Congress.

Slip laws are the laws that have been enacted but not yet published in a bound volume. At the end of each session of Congress, these slip laws are arranged chronologically by date of enactment to form the Session Laws. Session laws are difficult to use since they are not grouped categorically, but chronologically. The publication that contains the session laws is known as the Statutes at Large (abbreviated as Stat.).

Federal statutes are also organized into a series of books known as the United States Code (abbreviated U.S. Code). The U.S. Code is divided into 50 separately numbered titles. Each title contains Public Laws enacted by Congress that refer to a specific, separate subject matter. For

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example, Title 26 contains tax laws, whereas Title 35 contains statutes regarding patents. The U.S. Code is easier to research than the Statutes at Large since the laws in the Code are arranged categorically and it is not necessary to know the date the statute was enacted in order to find the law. The Code is also indexed.

The two official sources of federal statutes are the Statutes at Large and the U.S. Code. Official publications are those in which the official body directs that its laws shall be published. Because different legal publication companies exist in the marketplace, copies of the identical laws are often published in unofficial sources. Unofficial sources are generally just as reliable as the official sources, but they are not specifically sanctioned by the official body. When possible, always try to cite to the official source in your legal research. So long as the unofficial source is widely available and a parallel cite to the official source is also provided, it is acceptable to use the unofficial source if that is more convenient or user friendly. The only real difference between the official and unofficial source is the authorization by the official body. Both are accurate.

(Case law also has official and unofficial sources.)

The United States Code is most often accessed by legal researchers in its annotated form. Two popular annotated versions are the United States Code Annotated (abbreviated U.S.C.A.), published by Thomson West, and the United States Code Service (abbreviated U.S.C.S.), published by LexisNexis®. The annotations are particularly helpful in locating relevant case law that interprets the statutes or ascertaining legislative intent or legislative history. If the citation for the statute is known, it should be easy to locate in the annotated versions of the U.S. Code since the format is divided into titles, much like the U.S. Code. Like all West publications, the U.S. Code Annotated uses the West Key Number System® to assist in research. West publications assign a specific key number to every topic and subtopic. This applies to the West compilations of case law as well. The particular key number assigned to a specific topic is consistently used every time that topic or issue comes up in all West publications.

The annotated volumes are well-indexed and accompanied by popular name indices. Shepard’s a well-known citation index discussed later - also has a Popular Names Index to help quickly locate the title and citation for statutes known commonly by their popular name.

Note that these volumes, and other legal publications, are frequently updated. Rather than replacing an entire bound volume every time a new statute or case decision comes out, legal publications are frequently updated by soft bound inserts, typically inserted into a premade flap in the back of the book. These are known as pocket parts and should always be consulted to get the most up-to-date authority. Failure to consult a pocket part could result in faulty research if the most current version of a statute is not consulted. Never rely on out-of-date or incomplete codes unless absolutely certain the statute has not been amended since publication of the hard volume.

When the pocket parts become too bulky to enclose within the confines of the bound volume, they are sometimes bound separately with a soft cover. More often, however, a new, hardcover volume is published that incorporates all pocket part material.

Legislative Records Sometimes it is necessary to research a very new federal statute or pending legislation. If the statute is new, it might not have yet been incorporated within a pocket part. If the statute is at least three months old, it may be available in an advance legislative service. Both the U.S.C.A. and the U.S.C.S. have advance legislative services that include statutes within a month or so after enactment. The U.S.C.A.’s supplement is the U.S.C.A. Quarterly Supplement; the U.S.C.S. 55

supplement is known as the U.S.C.S. Advance Legislative Service. Like their hard copy counterparts, the advance services publications include a subject matter index to help locate the Pub. L. number. These publications also include a table of code sections that have been added, amended, repealed or affected. The U.S. Code Congressional and Administrative News is another advance service. It is organized by legislative session. Coverage is not entirely uniform and some statutes have more information in this service than others. Some even include legislative history.

Here is a summary of how to find a federal statute passed within the past year: If the citation is known

Check pocket part of U.S.C.A. or U.S.C.S.

If not in pocket part of U.S.C.A. or U.S.C.S.

Check advance service - U.S.C.A. Quarterly or U.S.C.S. Advance Legislative Service

If the citation is not known

Check subject index or popular names index

If the citation is not known

Check pocket part of U.S.C.A. or U.S.C.S.

Another good source to find information about recent or pending federal legislation is available on the U.S. Congress’ Internet site known as “THOMAS,” available at http://thomas.loc.gov (last visited June 1, 2012). Or, call the local office of your senator or representative to request a copy of the bill.

The Congressional Index, published by Commerce Clearing House, is another source to obtain pending or recent litigation. The Congressional Index is indexed, so it is easy to use. In addition, there is a status table to identify the current status of pending legislation.

If researching a pending or recent state statute, be aware that most states have similar publications and legislative services (although the names vary from state to state). Your local law librarian will be of great assistance in locating sources particular to your state.

Internal Revenue Code The Internal Revenue Code is cited separately from the United States Code. An example of an Internal Revenue Code citation is: 26 I.R.C. § 61 (2000).

Ordinances Ordinances typically refer to state and local jurisdictions and may be cited the same as federal statutes, according to the particular name of the Ordinance Code of each individual state. Consult Table 1 of The Bluebook2 for a detailed listing of state ordinance and code names. Ordinance citations should include the name of the political body issuing the ordinance (city or county), and the state name in its abbreviated form. If the ordinance is codified, the name of the code should be included, along with the section or subdivision of the code and the year of the code. Examples of local ordinances are: Montgomery, Ala., Code § 3A-11 (1971) and S.F. Cal., Police Code art. 16, All references in this chapter to “The Bluebook” refer to the following: Harvard Law Review Association, The Bluebook: A Uniform System of Citation (19th ed. 2010).

2

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div. 1, § 1076(a) (2000). As demonstrated in these examples, the citation format for local ordinances varies widely. Always consult The Bluebook for proper citation format.

Rules of Procedure and Evidence Generally, the Rules of Procedure at both the federal and state level are cited the same way, beginning with the name of the particular type of rule, followed by the rule number. See more below.

Case Law Court opinions are the basis of that body of primary authority known as case law. The majority of published case opinions come from appellate courts, although some opinions are issued by trial courts and are available on the local level. Many local jurisdictions issue trial court opinions.

Case law is published in volumes called “case reporters” or simply “reporters.” These reporters may be state-specific or regional.

There are many types of opinions. Most judicial opinions are written by a single judge unless the judgment was issued by a panel of judges; then, the panel typically joins in the written opinion.

This type of opinion is known as a majority opinion. If the panel of judges issues an opinion but does not identify the specific author, it is known as a per curium opinion. Per curium literally means “by the court.”

Concurring opinions are those where a supplemental opinion is issued by another judge and these often offer additional explanation into the majority’s opinion. A concurring opinion might elaborate on a particular point of law that is not as fully treated in the majority opinion, but the upshot of the concurring opinion is that it agrees with the majority opinion. The direct opposite of a concurring opinion is a dissenting opinion. A dissenting opinion is issued when one on the panel of judges disagrees with the majority’s opinion. Sometimes, a dissenting opinion will disagree with only a part of the majority’s opinion. Be very careful in citing dissenting opinions in your legal research because they are merely one (or more) judge’s opinion and they are not the law. Quoting from a dissenting opinion is permissible so long as it is properly identified.

Otherwise, opinion quotes are presumed to be from the majority opinion. Do not discount the dissenting opinion entirely because it might be taken up by another court and ultimately become the law in subsequent cases.

One of the tasks of the legal researcher in reviewing case law is to determine which part of the case is the actual holding and which parts do not have precedential value. The only way a paralegal can do this is to learn how to interpret the published decisions and identify the component parts of a judicial decision. Although the order may be a bit different from case to case, it will not vary significantly, and courts generally follow the order described in the section immediately below.

Manual (hardbound) Legal Research – Validating the Law It is imperative that researchers update any authority cited in legal briefs and memoranda, even internal memoranda. Relying on invalid (often referred to as “bad”) or outdated law reflects poorly on the skill and ability of the researcher. There are many online and hard copy services available to ensure that all authority cited remains valid law. No paralegal wants to be the person who gives an attorney a case on which he/she relies in court only to find out in a very public and

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humiliating way that the case relied on has been overturned, superseded or that the statute is no longer valid.

A good rule of thumb for paralegals conducting legal research is to always make sure that all case law is validated before presenting it to an attorney. Some paralegals put a check mark on the hard copy of any case, along with the date to show that it has been validated and is good law. Any time the paralegal does not have time to validate the authority first, it is important to convey that to the attorney. It is also important to update legal research to ensure that only the most current and valid law is used. Not only is it important to do for face-saving reasons, but it is also important that authority be updated and validated to comply with legal ethics concerns. Attorneys - and their paralegals, by extension - have an ethical obligation to the court and to the client of candor, and professional competency requires the use of only current/valid law. Never shortchange your research by eliminating this step. Your (and your attorney’s) pride, professional ethics and reputation depend on using only the most current and valid law.

Shepard’s® Shepard’s Citations are the most long-standing citators used to validate and update the law.

Shepard’s has been around since the late nineteenth century, when Frank Shepard began publishing lists of authorities in a series of books. Today, Shepard’s Citations are owned by Reed Elsevier, the parent company that also owns Lexis/Nexis. Shepard’s Citations are a multi-volume set of books, including paperbound supplements, which correspond to nearly every type of printed case opinion book. The Citations contain lists of cases, in order of publication by volume and page number, and under each individual case is a listing of subsequent cases citing the original case, together with any special treatment in subsequent cases. The case names do not appear in Shepard’s Citations, only the volume, page numbers and letters to indicate whether the case was reversed, affirmed, followed, overruled, superseded or whatever subsequent treatment the case received.

Shepard’s also has citators for statutes and federal and state case law. By checking Shepard’s, the researcher can be assured of any subsequent treatment of a cited case that might affect the validity of the authority on which he/she relies.

The process of reviewing Shepard’s Citations is known as “shepardizing.” Although the name Shepard’s Citations is trademarked, the words “Shepard’s” and “shepardizing” have come to be used in the legal community to refer to updating or validating authority, regardless of what citator service is used.

Shepardizing via the hardbound volumes of Shepard’s Citations is cumbersome and time consuming. Moreover, the lists of numbers and tiny letters are difficult to read and interpret.

It is very easy to mistake a lower case “s” with an uppercase “S,” and this could have a significant impact on the validation process. For example, a lower case “s” simply means that this is the “same case.” However, an upper case “S” next to a group of numbers means that the case has been superseded and is, therefore, not good law to cite. Another problem with the bound volumes of Shepard’s Citations is the time lag in updating citations, even with frequent paperbound supplements. This could lead to cases being overturned or invalidated before legal practitioners could even be aware of the change. The bound volumes are also difficult to use because the researcher must take not only the relevant hardbound volumes, but a handful of supplements and updates as well and check the cite in all of these to ensure that the cited authority is valid. The paper supplements were frequently misfiled by users and often difficult to locate when needed.

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All of these factors led to the decline in the use of the print versions of Shepard’s Citations and when Lexis/Nexis acquired the rights to the citators, it made Shepard’s Citations available on line with the click of a mouse via Shepard’s® Citations Service. Instead of an arduous and time consuming, albeit necessary endeavor, Shepardizing can now be accomplished instantaneously and with great accuracy.

Only users of Lexis/Nexis® can Shepardize results using Shepard’s® Citations Service online.

When users click on the “Shepardize” link in the upper corner of the Web page, a full Shepard’s report comes up for the case. Instead of using the system of upper and lower case letters to indicate subsequent treatment of cases, the Shepard’s online service provides plain English explanations like “overruled,” “same case” or “questioned.” Additionally, the online reports provide the full case name and citation, as opposed to the numbers, unlike the print version.

The online service is a great timesaver; because, with the print version, the numbers alone do not give any clue as to whether the cited case is relevant. By providing the full case name on the report, the online citator alerts the researcher in many cases whether the subsequent case was civil or criminal. If further inquiry into any subsequent case is needed, all the researcher has to do is click on a hyperlink to retrieve the cited case instantly. One thing to remember about Shepardizing cases using the Lexis/Nexis citator is that they will not pick up any recent (not yet published) Westlaw cites, but will include any recent (not yet published) Lexis decisions.

KeyCite® KeyCite is Westlaw’s online citation service and it provides the same kind of information as Lexis’ Shepard’s report. KeyCite uses the West Key Number System® and includes a helpful flag system to indicate the status of the case. KeyCite® was introduced by Westlaw as a competitor to Shepard’s Citations in 1997. Today, KeyCite is a widely used and valid cite checking service used by many legal professionals. Although KeyCite will not pick up citations that are cited to Lexis, it will pick up recent (not yet published) Westlaw decisions.

Shepard’s v. KeyCite The primary distinction between Westlaw and Lexis is which citation validation service the database uses. Both of these citation validation services are excellent, but many practitioners demand that only Shepard’s be used to validate and update cited authority. Shepard’s online is only available through Lexis; it works very similarly to the way Shepardizing does manually. It is possible that an attorney will want the paralegal to conduct the research on Westlaw, but will want the cases “Shepardized” on Lexis instead of “Key-Cited.”

Both KeyCite and Shepard’s allow the researcher to verify the status of a case, statute or regulation, and locate additional authorities that cite the case or statute in question. Each is equally valid, but uses a different setup. Shepard’s lists the case history first and then subsequent cases in chronological order. KeyCite lists the case history first and then subsequent cases under a citing references section. KeyCite lists negative cases first, followed by positive cases. Both list secondary source treatment and court documents last. KeyCite also uses a colored flag system to visually alert problematic citations. Red flags indicate that a case has been overturned, superseded or seriously questioned; yellow flags mean that there might be a problem with the validity of the authority cited; and green flags mean that the citation is still valid and good law.

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Overall, individual attorneys have specific preferences of how legal research should be conducted, from scope through validation. Paralegals should always begin a legal research project by discussing the framework with their attorney.

Parts of a Judicial Opinion Court opinions also contain dicta, which are statements, remarks or observations that were not necessary for the decision of the matter. Dicta are not binding on the court. The paralegal should be careful to cite the holding, and not mere dicta, in legal research.

Similarly, legal practitioners should never quote from case opinion headnotes, which are editorial summaries of issues covered in a reported case. Headnotes are typically found at the beginning of the opinion and are written not by the court, but by the editorial staff that compiles the written opinions. The headnotes are typically numbered in the West Reporters and are linked with a key symbol followed by a number. These are also linked to key numbers for various topics found in the West Digests.

To understand how to read a case opinion, it is important that the paralegal is able to separate the distinct parts of an opinion. Throughout this section, please refer to Appendix A and Appendix B to this chapter for examples of the component parts of a case opinion. Note that Appendix A is a U.S. Supreme Court opinion downloaded from the court’s website; Appendix B is the first page of a case from West’s North Western Reporter and is included to show headnotes, editorial summaries and key numbers.

Citation The case name, followed by the location where the published (or unpublished) case opinion can be found, is the first thing in the written opinion. Typically, the citation is at the top of the first page and centered, and appearing on subsequent pages of that opinion in published case law reporters. The citation will also include the name of the court issuing the opinion and the year in which the decision was rendered as parenthetical information.

Case Caption Identifies the parties to the action, the docket number and the court.

Decision Date The date on which the court issued the decision immediately follows the case caption. The opinion may also include a date on which the matter was argued before the court, if the date is different from the date of the decision. When citing the case, it is the date of decision that is significant, not the date of oral argument.

Docket Number A unique number given to each case filed in a court. If a case is appealed, it will be given a new, unique number for the appellate court. Docket numbers in federal cases typically appear in the format of the year, followed by the number of the case for that year. Most federal courts indicate whether the case is civil or criminal in the docket number and some even include the assigned judge’s initials. For example, “Civ. No. 99-104 JQA” would be the docket number for the 104th civil case filed in 1999 and the judge with the initials JQA

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would be the assigned judge. The docket number is important as the case progresses through the legal system and is included in the case opinion.

Court The name of the court in the opinion is the name of the court that wrote the decision. Note that if the decision concerns a case on appeal (and most published opinions are appellate opinions), the original court that heard the case will not appear in the caption, but should be included in the procedural history of the case.

Case Summary The editors of published law reporters typically include a short case summary. Like headnotes, the summary should never be quoted in legal writing. Case summaries are prepared by the editors of the law reporter and are not part of the official case opinion. When doing legal research, the case summaries are helpful as they assist the researcher in determining quickly whether the case is factually on-point with the research task at hand.

Summaries normally include an abbreviated fact and procedural history and the holding of the court issuing the opinion.

Counsel The editors of published case law reporters also include the names, and sometimes the firms, of the lawyers. This is not part of the official opinion.

Note that if copies of case opinions are obtained directly from the court, whether in hard copy or online, they will look very different than opinions from a reporter. Official opinions begin with the court’s name, followed by the names of the parties and include the docket number and date of decision. They will not include headnotes or editorial summaries.

Statement of Facts/Procedural History The official court-issued opinion is further broken down into distinct parts. Opinions begin with the court’s summary, which is frequently more involved than the publisher’s editorial summary in the beginning of a published decision. This section will include a statement of those facts that the court has determined are true. Case summaries in appellate court decisions are usually taken from the trial court’s identification of the facts. They give a concise history of how the case came before the court rendering the decision. The fact statement is helpful in assisting the researcher determine whether the case is factually similar to the issue being researched as well as the procedural history of the case.

Issue When briefing cases, the issue is always in the form of a question. The issue in a case opinion consists of the factual and legal questions before the court. What is the court trying to decide?

Sometimes case opinions involve more than one issue. It is very important that the issue being determined by the court be clearly understood and identified before the researcher determines whether the case has any applicability to the matter for which it is being researched. Put another way, the legal “issue” is the particular point of law (or fact) that is disputed among the parties. Issues can usually be answered in terms of “yes” or “no.” In case

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opinions, courts rarely put the issue in the actual form of a question or identify it as “the issue is…” It will be up to the reader of the opinion to identify the issue that the court is deciding.

Ruling or Holding This is the part of the opinion where the court answers the issues. The holding is the ruling of the court. When cases are brought before the court on appeal and the appellate court agrees with the decision of the lower court, it affirms the lower court’s decision. When the appellate court finds that the lower court committed a judicial error in its decision, the appellate court holding reverses the lower court’s decision and sends it back to the trial court for a decision in compliance with the decision of the appellate court. When cases are sent back down to the trial court, this is called a remand. Occasionally, an appellate court will affirm part and reverse part of the lower court’s decision. Cases decided in this way are often noted as “affirmed in part and reversed in part.”

U.S. Reporters Not every case opinion is published. In fact, only a very small percentage of court opinions make their way into the case law reporters. When citing case law in research, the paralegal should not completely disregard unpublished decisions, although be aware that they do not have any binding, precedential authority. Unpublished decisions can lead to additional, published opinions which can be cited and may become persuasive authority on issues for which there is no written opinion.

Unpublished decisions can be found on some court websites, through PACE®R (Public Access to Court Electronic Records) or by obtaining them from the court directly. The easiest place to obtain unpublished decisions is through one of the electronic, fee-based legal databases, such as Lexis® and Westlaw®. Research using these databases will identify both published and unpublished opinions.

When court decisions are first released, they are in the form of what is known as a slip opinion.

Slip opinions simply contain the court’s decision and do not include any headnotes or editorial comment. When several slip opinions are collected, they are published in paperbound (sometimes loose-leaf) collections of very recent opinions known as advance sheets. Advance sheets contain the most recent cases, but are discarded when the cases contained therein are incorporated into the next hard bound volume of the reporter series. The pagination of the advance sheets normally reflects what the page numbering will be once the case is included in the next bound volume. Be careful when citing to slip opinions because there is always a risk that the decision could be overturned on appeal to a higher court. Slip opinions do not become final and should not be cited until the time for filing appeals has passed. When the pagination of the opinion is not yet known, it is cited with underscoring in place of the page number to indicate that the page number is not yet known. An example of such a decision is: Bowles v. Russell, 551 U.S. (2007). An example of a citation to a slip opinion is: Charlesworth v. Mack, No. 90-567, slip op. 3458 (1st Cir. Jan. 19, 1990). Slip opinion citations include the name of the case, the docket number, the court that issued the opinion and the date of the opinion.

Federal Reporters Federal court decisions are published into volumes called “reporters” depending on the court from which the decision originated. It is important for the paralegal to know which reporters to go to when asked to locate a decision from a particular court.

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U.S. Supreme Court The only official reporter for United States Supreme Court cases is the United States Reports (abbreviated U.S.), published by the U.S. Government Printing Office and commissioned by Congress. There are two, unofficial series of U.S. Supreme Court case decision reporters. When conducting U.S. Supreme Court research in one of the unofficial reporters, one must always also cite to the official reporter. The Supreme Court Reporter (S. Ct.) and Supreme Court Reports, Lawyer’s Edition (L. Ed.) are parallel cites to the United States Reports.

A citation to two or more reporters for a court decision is known as parallel citation.

Parallel citations are the same court opinions, although they are published with different editorial marginalia such as headnotes and case summaries. Note that the pagination differs from the official reporter, although the actual decision of the court is identical.

The pagination among the parallel cites differs because volumes differ in page size and print font.

Although citation to the unofficial citations is not required, many attorneys cite one or more unofficial parallel cites along with the official cite. For example, 381 U.S. 479 is the official citation and 85 S. Ct. 1678 and 14 L.Ed.2d 510 are unofficial citations. It is a matter of preference as to which of the parallel cites the researcher prefers - both are valid and both contain the identical case opinion. Many researchers like to cite to the Supreme Court Reporter, especially if they are used to using the West Key Number System®.

Others prefer the Supreme Court Reports, Lawyer’s Edition (commonly referred to among legal practitioners as “Lawyer’s Edition”) because it provides annotations about the impact of the case and often discusses how the instant case impacts other cases on the same subject.

Regardless of which unofficial reporter the attorney prefers, it is imperative that, when citing the opinion, citations including pinpoint cites to particular pages, must be cited to the official reporter. While it is optional whether to include parallel cites to one or both of the unofficial cites, it is not optional to include cites to the official reporter. Lawyer’s Edition and Supreme Court Reports include star pagination, which helps researchers to properly cite to the official reporter. Star paging uses stars, asterisks, or other special characters inserted into the text of the unofficial reporters to show where new pages begin in the official text. The number that follows the star pagination indicator refers to the exact page in the official text that corresponds with the page in the unofficial reporter.

An example of how to cite a U.S. Supreme Court case, using parallel cites, is Griswold v.

Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). The citation format follows the general rules of case citation. The citation begins with the case name, followed by the volume number, the official reporter (U.S.) and the page in the official reporter where the case begins, followed by the unofficial reporter parallel cites. The year in which the case was decided is followed in parentheses.

U.S. Court of Appeals The reporter for the United States Circuit Courts of Appeal is published by West and is known as the Federal Reporter (F.). Because of the large number of cases included in the Federal Reporter, it is now in its third series. The second and third series of Federal Reporter are abbreviated “F.2d” and “F.3d,” respectively. Only the D.C. Circuit Court 63

has an “official” reporter and that is known as the United States Court of Appeals Reports, but is rarely used. For all practical purposes, the unofficial West reporters are the de facto “official” source for case decisions of the U.S. Circuit Courts of Appeal.

Cases decided by the U.S. Courts of Appeal from 1789 to1880 are contained in volumes known as Federal Cases (F. Cas.). Cases of the U.S. Courts of Appeal from 1880 to1924 are included in the Federal Reporter (F.), from 1924 to1993 in the Federal Reporter, Second Series (F.2d) and from 1993 to the present, in the Federal Reporter, Third Series (F.3d).

Citations to court decisions from the U.S. Court of Appeals follow the general rules of case citation. The first part of the citation includes the case name, followed by the volume number, the name of the reporter (F., F.2d, or F.3d), the circuit number, and the year of the decision. An example of a properly cited case decision from the Third Circuit is: Geary v. Visitation of the Blessed Virgin Mary Parish Sch., 7 F.3d 324 (3d Cir. 1993).

In 2001, a new reporter series, the Federal Appendix (F. App’x) was introduced. Cases reported in the Federal Appendix are “unpublished” and therefore of questionable precedential value, but they are often cited in instances where there is no published authority. The Federal Appendix has been cited more often since 2006, when the Supreme Court amended Rule 32.1 of the Federal Rules of Appellate Procedure. Fed. R. App. P. 32.1 now provides that U.S. Circuit Courts can no longer prohibit the citation of unpublished opinions after January 1, 2007. Note that the unpublished opinions of the Fifth and the Eleventh Circuits are not included in the Federal Appendix because they do not distribute their unpublished opinions to any publisher.

Procedures within the federal appeals courts are governed by the Federal Rules of Appellate Procedure (Fed. R. App. P.), a series of rules promulgated by the U.S. Supreme Court. They were originally adopted in 1967 and have been subsequently amended.

By way of background, the United States is divided geographically into 12 regional Circuits. Within each Circuit are several judicial districts. Circuit Courts of Appeal hear appeals from the U.S. District Courts within its circuit, as well as appeals from federal administrative agency decisions. The Circuit Court of Appeals for the Federal Circuit has jurisdiction over the entire United States to hear appeals in certain types of specialized cases, as well as cases decided at the trial court level by the Court of International Trade and the Court of Federal Claims3.

3

https://www.uscourts.gov/about-federal-courts/federal-courts-public/court-website-links#appeals

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The circuits are divided as follows: First Circuit

ME, MA, RI, NH, PR

Second Circuit

NY, VT, CT

Third Circuit

NJ, VI, DE, PA

Fourth Circuit

VA, WV, NC, SC, MD

Fifth Circuit

TX, LA, MS

Sixth Circuit

MI, OH, KY, TN

Seventh Circuit

WI, IL, IN

Eighth Circuit

ND, SD, NE, MN, IA, MO, AR

Ninth Circuit

WA, OR, CA, ID, MT, AZ, AK

Tenth Circuit

WY, UT, NM, KS, OK, CO HI, NV, Guam, Northern Mariana Islands

D.C. Circuit

Washington, D.C.

Eleventh Circuit

GA, AL, FL

Federal Circuit

Patent and Customs Cases

U.S. District Courts The United States District Courts are the trial courts of the federal court system.

Accordingly, they decide a wide variety of cases, both civil and criminal. There are 94 federal judicial districts, including at least one district in each state, the District of Columbia and Puerto Rico. The Virgin Islands, Guam, and the Northern Mariana 65

Islands also have district courts that hear federal cases, including bankruptcy cases.

Decisions of the U.S. District Courts are found in three reporters, all published by Thomson West. The appropriate reporter in which to find the decision of the U.S. District Courts will depend on the year in which the decision was issued. Published U.S. District Court decisions from 1932 to the present are found in Federal Supplement (F. Supp. and F.Supp.2d). However, early decisions of the U.S. District Courts from 1789 – 1880 are published in Federal Cases (F. Cas.). From 1880-1932, U.S. District Court decisions were included in the Federal Reporter (F., F.2d), along with U.S. Court of Appeals decisions. The majority of U.S. District Court decisions used by practitioners today will likely be found in the Federal Supplement series.

Codified Laws and Rules Rules of practice and procedure in the federal District Courts, both criminal and civil, are codified in formal rules. The rules for civil cases in the U.S. District Courts are found in the Federal Rules of Civil Procedure (abbreviated Fed. R. Civ. P.). The rules for criminal cases in the U.S. District Courts are found in the Federal Rules of Criminal Procedure (abbreviated Fed. R. Crim. P.).

The Federal Rules of Civil Procedure are promulgated by the U.S. Supreme Court and approved

by Congress. The Judicial Conference of the United States (the internal policy making body of the federal judiciary) makes periodic recommendations for amendments, deletions and new rules of procedure.

The Federal Rules of Criminal Procedure govern how federal prosecutions are conducted at the U.S. District Court (trial court) level. The Federal Rules of Criminal Procedure are, like the Federal Rules of Civil Procedure, codified in the statutes.

Admissibility of evidence in criminal and civil proceedings in the federal court system is governed by the Federal Rules of Evidence (abbreviated Fed. R. Evid.). The Federal Rules of Evidence were formally enacted in 1975, but have been amended through the years. These rules govern the evidence that is presented at trial and are predicated upon relevance, unfair surprise, efficiency, reliability and fairness in the process. Trial judges have wide discretion in interpreting the Federal Rules of Evidence, which cover such areas as judicial notice, privileges, witnesses and their testimony, hearsay, and evidence authentication and identification.

The Federal Rules of Evidence, the Federal Rules of Criminal Procedure and the Federal Rules of Civil Procedure can all be found in the United States Code under Title 28. Many of the U.S. states have adopted these federal rules and incorporated them into their own state-level procedures.

Many local federal courts issue Local Rules (L.R.) that modify or supplement the federal rules.

Always check the Local Rules of the federal court to make sure that there are no rules that would affect any research that might be presented in legal writings. Some courts, for example, have strict citation rules, and require only official reporters. Others have very specific requirements as to timing, conferring with opposing counsel and other issues. Similarly, many judges in the federal courts issue their own Standing Rules. These too should be checked because the wise researcher does not want to tread on any individual judge’s preferences.

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U.S. Bankruptcy Court Bankruptcy courts are separate units of the federal District Courts. The authority for the U.S. District Courts handling bankruptcy matters is derived from the U.S. Constitution.

Bankruptcy courts have exclusive subject matter jurisdiction over bankruptcy cases in the United States, i.e., bankruptcy cases cannot be filed in any state court or court other than the U.S. District Courts. Each of the 94 federal judicial districts handles bankruptcy matters; this system was created by Congress in 1979. Decisions of the Bankruptcy Court judge may be appealed to the District Court although some judicial circuits have a Bankruptcy Appellate Panel.

Procedures of practice within the Bankruptcy Courts are codified in the Federal Rules of Bankruptcy Procedure (Fed. R. Bankr. P.). Opinions of the Bankruptcy Courts are reported in the Bankruptcy Reporter (B.R.), published by Thomson West.

Federal Rules Decisions Decisions of the U.S. District Courts that involve interpretation of the Federal Rules of Civil, Criminal, or Appellate Procedure or the Federal Rules of Evidence are published in Thomson West’s Federal Rules Decisions (abbreviated F.R.D.) reporter. Listed below is a summary of federal case law reporters and what they cover: Name of Reporter

Decisions

Abbreviation

United States Reports

U.S. Supreme Court – official reporter

U.S.

Supreme Court Reporter

U.S. Supreme Court – unofficial reporter published by Thomson West

S. Ct.

United States Supreme Court Reports, Lawyer’s Edition

U.S. Supreme Court – unofficial reporter published by Thomson West

L. Ed.

Federal Reporter

Primarily used to locate cases from the U.S. Courts of Appeal (and some U.S. District Court cases) from 1880-1924.

Also includes decisions of the Commerce Court of the United States from 1911–12, the Court of Appeals of the District of Columbia, and the Court of Claims.

F.

300 Volumes.

Federal Reporter, Third Series

This is the current series, which contains decisions published from 1993 – present.

The Third series contains published decisions of the U.S. Court of Federal Claims and the U.S. Courts of Appeals.

Volumes: 600 plus

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F.3d

Name of Reporter

Decisions

Abbreviation

Federal Appendix

Published since 2001, contains unpublished opinions from the U.S. Courts of Appeal. The opinions of courts from the 5th and 11th Circuits are not included.

F. App’x

350 + volumes Bankruptcy Reporter

U.S. Bankruptcy Court published opinions, published by Thomson West

B.R.

Federal Rules Decisions

U.S. District Court published opinions that interpret the Federal Rules from 1941-present.

F.R.D.

State Reporters State Court decisions are published in many reporters. Some states have opted to publish appellate case opinions in official state reporters, while some of the more litigious states break the official reporter down into an official reporter for the highest appellate court cases and the intermediate appellate court cases. Others do not have an official reporter; these states rely on the regional reporters published by Thomson West. The court rules for most of the states that do have an official reporter require citations to that official reporter. Often, legal practitioners will include parallel cites to the West reporters as well. In practice, many law libraries only carry the regional reporters as they are more comprehensive and include decisions of appellate courts of geographically proximate states.

Thomson West produces regional reporters for seven geographic regions. Citation formatting for cases citing to one of the regional reporters follows general case citation format rules.

Accordingly, begin the citation with the case name, volume number of the reporter and the reporter abbreviation, followed by the page number on which it starts. In parentheses, include the state, the court and the year in which the case was decided. Some examples of citations to the regional reporters are: Jackson v. Commonwealth, 583 S.E.2d 780 (Va. Ct. App. 2003); and Foxworth v. Maddox, 137 So. 161 (Fla. 1931).

The chart below describes the reporter name, the abbreviation for the series and the years of publication: Title

States covered

Abbreviation

Atlantic Reporter;

VT, CT, DE, RI, DC, PA, ME, NJ, MD, NH

A.

Atlantic Reporter, Second Series and Third Series

A.2d 1885-present A.3d

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Title

States covered

Abbreviation

North Eastern Reporter;

OH, IL, NY, IN, MA

N.E.

North Eastern Reporter, Second Series

1885-present

N.E.2d

North Western Reporter;

WI, SD, NE, ND, MN, IA, MI

N.W.

North Western Reporter, Second Series

1879-present

N.W.2d

South Eastern Reporter; South Eastern Reporter, Second Series Southern Reporter; Southern Reporter, Second Series and Third Series

VA, WV, NC, SC, GA S.E. 1887-present S.E.2d MS, LA, FL, AL

So.

1887-present

So. 2d So. 3d

South Western Reporter;

KY, AR, TN, MO, TX

S.W.

South Western Reporter, Second Series and Third Series

1886-present

S.W.2d

Pacific Reporter;

AK, AZ, CA, CO, HI, ID, KS, WY, WA, UT, OR, OK, NM, NV, MT

Pacific Reporter, Second Series and Third Series

S.W.3d

1931-present

P. P.2d P.3d

Thomson West also publishes separate volumes for the appellate court opinions for two states: California and New York: Title

States covered

Abbreviation

California Reporter;

California Supreme Court and intermediate appellate court decisions

Cal. Rptr.

California Reporter, Second Series

Cal. Rptr. 2d

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Title

States covered

Abbreviation

New York Supplement;

New York Supreme Court and intermediate appellate court decisions

N.Y.S.

New York Supplement, Second Series

N.Y.S.2d

States that publish their own official reports are: AZ, AR, CA,CT, GA, HI, ID, IL, KS, MD, MA, MI, MT, NE, NV, NH, NJ, NM, NY, NC, OH, OR, PA, SC, VT, VA, WA,WV and WI. Always consult The Bluebook and/or the state judiciary’s website for the most up-to-date information. Do not fail to cite to an official reporter for a state if one exists.

Reporters for states that publish their own decisions of that state’s highest court are generally abbreviated the same as the state’s name (note: this is the traditional abbreviation, not the postal abbreviation), regardless of what the actual title of the reporter is. Thus, the official reporter of decisions of the California Supreme Court (titled California Reports) is abbreviated “Cal.” (or, for subsequent series, “Cal. 2d,” “Cal. 3d” or “Cal. 4th”).

The citation format for state court cases citing to their official state reporter will vary from state to state; however, the format will follow universal case citation rules. Start with the case name, followed by the volume of the reporter, the name of the reporter and the page on which it can be found. The court from which the decision came should be next, in parentheticals, along with the year of the decision. An example of a state court case reported in a state official reporter and the unofficial reporter is: People v. Brown, 282 N.Y.S.2d 497 (1967).

The case also appears in West’s regional reporter: People v. Brown, 229 N.E.2d 192 (N.Y. 1967).

Like the federal court reporters, state and regional reporters are updated with advance sheets.

The advance sheets are incorporated into the next bound volume of opinions. The page numbers of the advance sheets should be sequentially numbered so that they correspond with the future bound volume that will replace the advance sheets.

State courts generally follow the same hierarchy as federal courts. Like federal courts, state courts adopt rules of procedure for civil and criminal matters. States also are free to adopt their own rules of evidence, although many follow the federal rules. State rules of procedure and evidence are often found within state statutes.

How to Identify Relevant Case Authority There are a number of ways to locate case authority. The exact method will vary depending on individual preference; but, in all cases, it will depend somewhat on the information the researcher has to go on when the initial research is begun. For example, if background research using a secondary source such as American Law Reports or American Jurisprudence was conducted, the researcher will no doubt already have some leads to cases that might be relevant. See Secondary Authority, below. If the statute is known, annotations to the statute might offer leads. A third source for locating additional case law is to Shepardize known cases. See Shepard’s Citations, below. Shepard’s Citations list subsequent cases that cite the case or statute from the first point in time. In this way, subsequent, timelier cases that might treat the issues researched can be located.

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Digests Another way to locate case law is to use the Subject Index in the case digests. The Thomson West case digest system is very helpful in locating case law. The digests are essentially a compilation of case law headnotes, grouped topically and arranged by key number. If a particular key number is known from background research, then it will be easy to go to the digest topic for that key number. However, if the key number for a particular point of law is not known, consult the Descriptive Word Index to the digest as this will give guidance as to the topics and corresponding key numbers. The digests are arranged in alphabetical order like an encyclopedia; the topics in each volume are printed on the spines of the individual volumes making up the set of digests.

The Digest system is quite complex and includes specialized digests for U.S. Supreme Court cases, Bankruptcy Court cases, federal Claims Court cases, and military courts. Digests are also published for specialty subject areas such as the Education Law Digest and the Social Security Digest. Federal district courts and courts of appeal are indexed in the Federal Practice Digest. West also publishes a digest for each series in the National Reporter system, as well as for most states.

The West General Digest includes digest notes from the West National Reporter System.

These are further compiled into the Decennial Digests, which were originally compiled every ten years, but now occurs more frequently even though the volumes are still known as Decennial Digests.

An understanding of the West Key Number System® is essential to proper use of the Digests.

There are approximately 414 key topics and numerous subtopics in the system. Editors at Thomson West assign a key number, based on topic/subtopic to every headnote in the reported cases. In the Digests, and in the Key Number System, every case from anywhere in the country is grouped with headnotes from all other cases that deal with the same issue.

Administrative and Executive Authority Administrative law is primary source material and has been interpreted by the courts to be as legally binding as the underlying statutes. Administrative law gets its existence from the broad authority Congress grants to the executive branch agencies when interpreting the statutes the agencies are required to enforce. This alleviates Congress from the burden of having to enact legislation to cover every minute detail. Agencies are permitted to promulgate rules and regulations affecting that agency through a public comment and notice process in the Federal Register. After a period of time, those rules and regulations become final and are ultimately codified in the Code of Federal Regulations.

Administrative and executive authority includes federal agency rules and regulations, as well as presidential papers and executive orders, court administrative orders, patents, stock exchange materials, advisory opinions and adjudications and arbitrations from the federal agencies. These authorities also include federal taxation materials. Federal agency regulations and rules are found in the Code of Federal Regulations (C.F.R.) and the Federal Register (Fed. Reg.).

Federal Register The Federal Register publishes rules and regulations before they are codified in the Code of Federal Regulations. The Federal Register is the official journal of United States government agencies, published daily except holidays. The Federal Register is an official 71

U.S. Government publication, printed by the Government Printing Office and compiled by the Office of the Federal Register. All new administrative regulations and proposed changes to existing rules and regulations are published in the Federal Register, where they are available for public comment before they take effect. Proposed changes to existing rules and regulations are also published in the Federal Register. This publication further provides government agency meeting notices, presidential documents and lists of bills that have been enacted, serving as a means by which government agencies give notice to the public.

Although it is very comprehensive, the Federal Register is not an easy publication to use for legal research. The primary drawback is that each issue contains a lot of information printed in a small type font on thin paper stock. On the positive side, each issue is organized the same way, starting with presidential documents, policy statements and interpretation of rules and regulations by the federal agencies, proposed rules- and, ending with notices. A cumulative monthly index is available, which is a useful research tool.

Citations to the Federal Register should include any commonly used name of the rule or regulation, the volume and page on which the discussion about the rule begins and the date. If the future Code of Federal Regulations citation is known, that should be included parenthetically. An example of a citation to the Federal Register is: Importation of Fruits and Vegetables, 60 Fed. Reg. 50, 379 (Sept. 29, 1995) (to be codified at 7 C.F.R. pt. 300).

When citing to administrative notices such as notices of proposed rulemaking, follow the same citation format, except add the status of the proposed rulemaking in front of the date.

Code of Federal Regulations The Code of Federal Regulations (C.F.R.) contains the final federal agency rules and regulations published in the Federal Register; it is a multi-volume set that is well-indexed and organized by subject. The C.F.R. contains 50 separate titles, each of which covers a general subject area. Each C.F.R. regulation provides references to the authorizing statute and a reference to the publication in the Federal Register. Regulations are generally easy to locate in the C.F.R. because there is a comprehensive general subject index to the series. Upon locating the appropriate title, consult the Table of Contents at the end of each title to locate the particular regulation that is the subject of your research.

The C.F.R. is published by the U.S. Government’s Office of the Federal Register. New volumes are issued once a year, on a set schedule, with some titles updated in January and others in April, July or October. Be sure to use the most current edition of the C.F.R. when conducting legal research. Citations to the C.F.R. include the title, section or part and year. An example of a citation to the Code of Federal Regulations is: 47 C.F.R. § 73.609 (1999). The “47” represents the Title within the C.F.R. and the date is the date of the code edition cited. If the rule is well-known, provide the name of the rule when citing to the C.F.R. For example, cite to the Credit Practices Rule as follows: Credit Practices Rule, 16 C.F.R. § 444 (1999).

U.S. Treasury Regulations Treasury Regulations are not cited to the Code of Federal Regulations; they are published in Title 26 of the C.F.R., but are cited to their own source known as Treasury Regulations. An example of a citation to a Treasury Regulation would be: Treas. Reg. § 72

1.72-16(a) (1963). Revenue rulings and procedures and U.S. Treasury decisions are cited to the Cumulative Bulletin (C.B.) or to its advance sheets, Internal Revenue Bulletin (I.R.B.). Consult Rule 14 in The Bluebook for further details in citing to U.S. Treasury Department documents, rules and regulations.

Administrative Publications Administrative Agency Decisions and Opinions Other federal agencies conduct hearings in a judicial setting and issue written opinions.

Agencies that publish agency opinions include the National Labor Relations Board, the Federal Trade Commission and the Department of the Treasury. An example of an administrative agency citation is: Trojan Transp., Inc., 249 N.L.R.B. 642 (1980). Consult Rule 14.3 of The Bluebook for further guidance in citing to Administrative Agency decisions.

Advisory Opinions Formal advisory opinions are also considered administrative law and, thus, are primary source material as well. A citation to an Advisory Opinion must include the volume, the type of opinion and the issuing agency, the page on which the opinion can be found and the year. An example of an opinion of the Attorney General is: 42 Op. Att’y Gen. 111 (1962).

Presidential Papers and Executive Orders An Executive Order is an order issued by the head of a government, such as the President of the United States. Executive Orders have the force of law; they are primary authorities and may be cited in legal research memoranda. The proper citation form for Executive Orders must include the number of the Order, the source in which it is published (either Code of Federal Regulations or Federal Register) and the year. When possible, cite to the parallel citation in the U.S.C. An example of the proper citation format for an Executive Order is: Exec. Order No. 11,609, 3 C.F.R. 586 (1971-1975), reprinted as amended in 3 U.S.C. § 301 app. At 404-07 (1998).

Presidential papers, including speeches and presidential documents, have been published in Public Papers of the Presidents (Pub. Papers) from 1945 to the present. Recent material that has not yet been included in the Public Papers of the Presidents can be cited to the Weekly Compilation of Presidential Documents (Weekly Comp. Pres. Doc.) or to the U.S. Code Congressional and Administrative News (U.S.C.C.A.N.). Consult Rule 14.7 of The Bluebook for further details regarding citation of presidential papers. An example of a citation to a Presidential paper is: Memorandum on New Tools to Help Parents Balance Work and Family, 1 Pub. Papers 841 (May 24, 1999).

Treaties Treaties are primary authority ratified by Congress which may include elements of executive action and decisions of foreign governments. Treaties are cited differently depending on the number of parties to the treaty and where they are published. Consult Rule 21.4 of The Bluebook for more detailed guidance as to the proper citation form for Treaties. An example of a citation to a treaty among more than three parties is: North 73

Atlantic Treaty, art. 5, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243. Here, the name of the treaty is the North Atlantic Treaty; article 5 of that treaty is being cited; it was signed on April 4, 1949; it is published in the United States in the Statutes at Large and is also an international treaty source.

State Administrative Authority State governors often issue executive papers and orders, which are cited exactly the same as the federal executive orders and papers. Similarly, state agencies issue administrative regulations unique to that state. Each state has the authority to enact its own administrative regulations and authority on the state level. Each state has different names for its Administrative Authority sources, but, in general, they mirror those used with federal administrative authority. The same rules of citation apply; further advice on citation format is found in Table 1 of The Bluebook.

Secondary Sources Secondary sources should be cited sparingly, if at all, in legal writing as they are merely advisory and only offer persuasive authority. That being said, secondary sources can be very useful by providing an excellent background into an area of law being researched.

Absent an understanding of the overall fundamentals of the area of law to be researched, it is very easy for the researcher to be led astray or to miss key elements of primary authorities. For this reason alone, it is always recommended that research into an unfamiliar area of law begin with secondary sources, which can aid in the understanding the primary sources, give leads to additional sources about the issue and provide guidance on the way courts and jurists have interpreted primary authorities. Most secondary sources are available for federal primary sources, although some states have their own secondary authority available as well.

There are countless types of secondary authority available in almost every major area of law. Experts and legal scholars have been prolific in creating secondary authority. Some examples include: Hornbooks Hornbooks are often published as textbooks for law students. They are primers for the student studying the law in a particular area. The analysis is not deep, and they will typically not provide specific answers to complicated issues, although they will provide a good, general background in specific areas of the law. Hornbooks typically have titles that describe the subject matter, e.g., Corporations, Environmental Law, Constitutional Law, The Law of Agency and Partnership, etc.

Legal Encyclopedias The two most commonly used legal encyclopedias are American Jurisprudence (Am. Jur.) and Corpus Juris Secundum (C.J.S.). Both are now published by Thomson West but at one time, they were competitors.

American Jurisprudence American Jurisprudence is now in its second series; the original series was launched in 1962.

The current edition contains over 140 volumes which are updated annually with pocket parts; and, when warranted, replacement volumes. Commonly referred to among those in the legal field as “Am. Jur.,” this source is an excellent place for a paralegal to gain background knowledge on a particular area of law and is often recommended as the starting point in legal

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research projects. Am. Jur. is arranged in an easy-to-understand format and is widely annotated with footnote references to court decisions from many state and federal courts. Am. Jur. should not be cited in a legal brief, but it is sometimes cited within internal research memoranda. Citations to Am. Jur. include the volume in which the relevant section is found, the name of the chapter, followed by a section sign and the relevant section cited. The year of the edition goes in parentheses at the end. An example of a citation to Am. Jur.’s Contracts chapter is: 17 Am. Jur.2d Contracts § 74 (1964).

Corpus Juris Secundum Corpus Juris Secundum is another widely used legal encyclopedia. The C.J.S. is organized numerically in accordance with the West Key Number System®. To use C.J.S., consult the index to identify relevant key number topics, or use key number topics identified in headnotes in previously found case opinions. Entries provide a narrative discussion on the key number topic, followed by numerous annotations and examples of case law citing that topic.

Citations to C.J.S. are identical in format to those of Am. Jur. and must include the volume, the abbreviated name of the encyclopedia, the title of the article, the section number and the specific page within a section and the date of publication. An example of a citation to C.J.S. is: 88 C.J.S. Trial § 198 (1990).

American Jurisprudence is generally considered the easier of the two to work with, although that is purely a matter of individual opinion. Both are useful starting points for legal research as both give background information and lead to additional case authority.

Many states have state-specific legal encyclopedias. These vary in format according to the publisher; but, in general, they all offer encyclopedia-like coverage of legal topics and are usually arranged alphabetically and updated with pocket parts. Examples of state-specific legal encyclopedias include: California Jurisprudence, Florida Jurisprudence, Illinois Jurisprudence, Indiana Law Encyclopedia, Michigan Law and Practice, Strong’s North Carolina Index, Ohio Jurisprudence, Pennsylvania Law Encyclopedia, Tennessee Jurisprudence, and Michie’s Jurisprudence of Virginia and West Virginia.

American Law Reports American Law Reports (A.L.R.) is a series of volumes that cover issues arising from state statutes, state cases and federal issues prior to 1969. In 1969, American Law Reports, Federal (A.L.R. Fed.) was first published. A.L.R. Fed. covers issues that arise primarily from federal statutes or in federal cases. A.L.R. and A.L.R. Fed. differ from other legal encyclopedias in that they contain the case opinion, along with annotations and a narrative analysis of the issues presented. Also unlike other legal encyclopedias, A.L.R. and A.L.R. Fed. are more selective in the material covered. For example, A.L.R. annotations often delve more deeply into specific legal principles, doctrines or issues than Am. Jur. and C.J.S. Also, A.L.R. articles provide cases on both sides of the issue. Although not organized alphabetically, A.L.R. and A.L.R. Fed. are easy to use - allowing the researcher to quickly locate relevant information - because they are well- organized in the combined A.L.R. Index, which includes articles from A.L.R.2d to the present and covers all material in A.L.R. Fed. Both the A.L.R. and A.L.R. Fed. are accompanied by a softbound Table of Cases. First published in 1919, A.L.R. allows researchers to cross reference issues from its articles to other Thomson West publications using the Key Number System.

American Law Reports and A.L.R. Fed. are important research tools. A.L.R. is currently in its 6th 75

series. Both are periodically updated by pocket part supplements.

Treatises and Monographs Legal treatises and monographs are useful research aids. Written by experts in particular areas, these volumes provide a detailed overview of a particular area of law. Treatises that deal with a very small portion of a general legal field or which introduce a new concept are called monographs. Treatises and monographs differ from hornbooks in the purpose for which they were written. Hornbooks are intended as a teaching tool, whereas treatises and monographs are indepth analyses of information in very specific areas of law. Some well-respected treatises include: Prosser on Torts, Powell on Real Property, Corbin on Contracts, Collier on Bankruptcy, Williston on Contracts, to name a few.

Treatises and monographs are cited like other books, according to Rule 15 of The Bluebook.

Citations include the volume, if citing to just one volume in a multi-volume set, the author’s full name, the title of the book, the page cited, the full name of the editor, the publisher, the year of publication, and if different, the original date of publication. An example of a citation for a treatise is: 14 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3637 (3d ed. 1998).

Most treatises and monographs are written on federal law and/or federal issues, although depending on the particular state, there may be state-specific monographs or treatises. If so, they are cited the same as federal treatises or monographs.

Restatements of the Law Restatements are produced by a group of legal scholars convened under the auspices of the American Law Institute to clarify various areas of the law by writing definitive statements of the law. The purpose of the Restatements is to inform judges and attorneys about general principles of common law. These Restatements of the Law have been produced by the American Law Institute on a variety of legal topics, including contracts, property and torts. Now in their third series, each Restatement includes a Black Letter Law Principle, comments and illustrations. The Reporter’s Notes contain a detailed discussion of the cases that were considered by the authors writing that particular section. Restatements provide a very comprehensive treatment of the particular areas of law covered.

Restatements are not a good starting point for the researcher. They are often confusing inasmuch as they are attempting to reconcile and explain contradictory legal principles. In addition, Restatements are not formatted in an easily readable, narrative format with annotations in the footnotes like legal encyclopedias. They are not generally well-indexed, and finding relevant information in Restatements is not an easy task for the entry-level paralegal.

Citations to Restatements must include the year in which the restatement was published, the edition, and the section. An example of a Restatement citation is: Restatement (Third) of Unfair Competition § 3 (1995).

Restatements are a well-respected source and, although secondary, are often cited in opinions and relied on by courts. When Restatements are cited in briefs, the judge is made aware of a thoroughly studied summary of court treatment on most common law legal doctrines. The cited Restatement allows the judge to make an informed decision, based on common law and precedent, on how to apply the law to a particular case. Because they are secondary sources, and not official case law, courts are not obligated to apply Restatement theory to the cases they hear.

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Nonetheless, Restatements are frequently adopted by the courts and cited in opinions.

Law Review and Journal Databases Law schools publish periodicals known as Law Reviews (sometimes referred to as law journals) which contain articles on legal issues written by law students, law professors and practicing attorneys. Law Review articles are frequently forward looking - as in “where is the law going” on a particular topic rather than a study of the past treatment of a specific legal issue. Bar Associations and professional groups of attorneys also publish periodicals, but the focus of these is more present-day, with an emphasis on recent developments in the law in a certain area.

Law Review articles and legal periodicals are almost always published in paperback form, usually on a quarterly basis. At the end of the calendar year, most libraries bind the issues into hardcover volumes.

Law Review articles may contain information that could be useful; it is possible to find good leads to further research in locating primary source materials that are on-point with your issue.

Law Reviews and Periodicals are indexed in the Index to Legal Periodicals and the Current Law Index. Both indices are organized by subject, author and title of the article and contain an abbreviated reference to the specific volume where the referenced article can be located.

Law Review citations are confusing and difficult to decipher. The abbreviations in the indices are explained in the Table of Abbreviations in the front of each volume of both sets of periodical indices. The Bluebook also has an exhaustive list of Law. Review abbreviations to be used in citation format at Table 13. Citations must include the full name of the author, the designation of the type of article (Comment, Note, Recent Development, etc.), the title of the article, the volume number of the periodical, the abbreviated name of the publication, the page number where the article begins and the year of publication. An example of a citation to a Law Review article in the Tulane University Law Review is as follows: Barry I. Pershkow, Recent Development, Maryland v. Craig: A Child Witness Need Not View the Defendant During Testimony in Child Abuse Cases, 65 Tul. L. Rev. 935 (1991).

There are many other secondary sources available to the legal practitioner depending on geographic location, the area of law, the information needed and a wide variety of other factors.

Other secondary sources include Legal Dictionaries, Newspaper Publications, Non-Legal Periodicals, Books, Form Books and Practice Guides, and others.

Proprietary Research Databases Westlaw® Westlaw is one of the main, paid, online legal databases used by legal practitioners today.

Westlaw includes more than 40,000 databases for case law, statutes, codes, public records, law journals, treatises and forms. Westlaw uses the West Key Number System®, which links documents topically under specified key numbers. Authorities may be located in Westlaw using either Boolean searches or natural language searches. Westlaw also includes KeyCite®, its online case and statute validation/update service. KeyCite allows users to quickly determine whether the case or statute remains valid (sometimes referred to as “good”) law.

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Lexis/Nexis® Lexis/Nexis is another primary, paid online legal research database which is very similar to Westlaw, with the exception of the databases it includes, and the fact that it also links with sister-product, Nexis, which is a news database. Accordingly, news searches in Lexis/Nexis will likely be more comprehensive than those in Westlaw. Lexis does not have access to the proprietary Thomson West products such as the West Digests; however, Lexis’ database contains current statutes and a large volume of published case opinions, with some dating back to the 1770’s. Lexis also has access to a library of briefs and motions.

Nexis contains content from more than 20,000 news sources, company and intelligence providers, biographical and reference sources, public records, legislative and regulatory filings and legal documents. Information is also accessed throughout this database by using either Boolean logic or natural language searches.

Loislaw LoislawConnect™ (f/k/a Loislaw) is another paid, online legal research database. Although not as widely used as Lexis/Nexis® and Westlaw®, it is gaining in popularity mainly because of its fee structure. Loislaw allows researchers to conduct searches for a flat fee with no additional charge for hyperlinking, downloading or printing research materials; unless there is a special fee structure in place, both Lexis/Nexis and Westlaw charge extra for downloading/printing. Primary source law for all 50 U.S. states and territories is available on Loislaw. Loislaw also makes online treatise libraries available to researchers as well as a public records database. Loislaw also has an online tool called GlobalCite®, which allows researchers to search cases containing references to another case. Searching with this software also provides access to statutes in accordance with the highest number of citation occurrences.

VersusLaw® VersusLaw is a low-cost alternative to Westlaw, Lexis/Nexis and Loislaw. VersusLaw has a much narrower range of databases and materials available from which to search, although it has comprehensive access to most federal court opinions and federal regulations. Depending on the pricing plan selected, access may include tribal court databases, state appellate court decisions and the U.S. Code. The range of databases on this service is by no means comparable to Westlaw or Lexis/Nexis for completeness, but it is a very cost-effective alternative, particularly if the researcher is only using federal court case law. The Web is constantly evolving and new research databases are continually being created. While Westlaw, Lexis/Nexis, LoislawConnect and VersusLaw are the most popular at present, there are others quickly gaining, e.g., FastCase®, InCite® and Smart Litigator.

Legal Writing and Critical Analysis Written Communication Basics Good writing begins with a plan. Organizing your writing ahead of time will avoid jumbled thoughts.

The goal is to make your writing easily understood. Before beginning to write, set your mind to the following basics: 1.

Be concise. Limit writing to the point.

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2.

Be brief. Use short sentences, short paragraphs and cut unnecessary verbiage.

Ex: Subsequent to = After Heretofore = omit completely If it is not essential to your point and does not contribute anything, get rid of it.

3.

Be clear. Make your writing easily understood.

4.

Be simple. Make your writing readable.

5.

Be specific. Focus on the points and do not make the reader fill in the blanks.

6.

Be precise. Nowhere is precision more important than in legal writing.

Ex: In its decision, the court argued that federal copyright law preempted state statutes.

Courts do not argue. A more precise word is “ruled.” Even punctuation requires precision.

Consider this sentence: Ex 1: This case involving breach of fiduciary duty by bank officers.

Ex 2: This case, involving breach of fiduciary duty, by bank officers.

In the first sentence, it appears the bank officers breached their duty, while the second sentence seems to indicate the case was brought by bank officers. (Neither sentence is very good, but the point should be clear).

Additionally, if legal writing is not precise, the analysis, interpretation and condensation of an opinion may be faulty, which would be a poor reflection in both the court’s eyes and those of the other parties.

7.

Use active voice. Writing in active voice is more clear and concise. Open with a subject and active verb.

Right: Defendant denied all allegations.

Wrong: A denial of all allegations was made by the defendant.

8.

Abbreviations. Use caution with abbreviations, particularly when referring to corporate designations. If the proper name is ABC Co., do not spell out Company. Do not abbreviate days or months.

9.

Numbers. Although general grammar rules state that numbers one through ten should be written in word form and numbers over ten should be written in numeric form, both The Bluebook and ALWD state that common convention is to use words for numbers zero through ninety-nine. It is unnecessary to insert the numerical form in parenthesis after the word form. Fractions should be spelled out with a hyphen, e.g., three-fourths, two-thirds.

10.

Gender-Neutral Language. Substitute the words “the” or “a” for the pronoun if it will not change the context. As a last resort, use the word “one” for the pronoun. When using a

79

title, try to remove the gender: policeman becomes police officer, chairman becomes chairperson.

11.

Contractions. Avoid contractions.

12.

Parallelism. Match word forms in a sentence for consistency.

Right: Paralegals like writing and researching.

Wrong: Paralegals like writing and to research.

Right: Neither this word nor that will work.

Wrong: Neither this word or that will work.

13.

Sentence Structure. Rather than joining two independent clauses with a comma, make each a separate statement. This keeps the writing simple and easy to read.

Ex: The jurors were bored, and their faces reflected that boredom.

Better: The jurors were bored. Their faces reflected that boredom.

14.

Quotes. Avoid excessive quoting as it is perfectly acceptable to paraphrase. That being said, when using quotations, incorporate them into your own sentence within quotation marks. The cite follows in the next sentence. Block quotes in excess of 50 words should be avoided as they are often skipped over. When used, they should be single sPACE®d and indented. Note that this is not always true for all courts, so always check local and/or state rules.

Grammar, Punctuation and Spelling With all the great tools available for spell checking and grammar, and for cite checking, people tend to get a bit lazy with legal writing. Plus, a second set of eyes is helpful in proofing a document. Some tribunals also have standards for writing in “plain English,” which calls for using common words and being reader-oriented. See the Federal Plain Language Guidelines, agency links, tips and examples4.

Errors give the reader a lack of confidence in the rest of the writing and detract from the important points addressed in that writing. It is important for paralegals to develop proofreading skills and not to rely solely on a specific spell-checker function.

Grammar is an all-inclusive term for the mechanics of writing. There are more rules of grammar than can be listed here. However, some great resources to have on hand are The Elements of Style, the Harbrace College Handbook (for grammar and punctuation rules), a good dictionary and thesaurus. Some common guidelines: IS THIS REALLY NECESSARY? A. Subject/verb agreement: A complete sentence has both a subject (a/k/a noun) and a verb.

The subject is the actor and the verb is the action.

•

4

Singular subjects require singular verbs and plural subjects require plural verbs.

www.plainlanguage.gov (last visited Sept. 9, 2024)

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Ex: The judge was frustrated with the testimony.

Ex: The judges were frustrated with the testimony.

•

A sentence with two subjects joined by and usually requires a plural verb.

Ex: The judge and jury were frustrated with the testimony.

•

Sentences with subjects joined by or or nor require a singular verb.

Ex: Neither the judge nor the jury was frustrated with the testimony.

• Collective nouns (subjects that stand for a group as a unit) usually require a singular verb.

Ex: The jury was frustrated with the testimony.

E. Other collective nouns: committee, family, evidence, company.

•

Nouns and pronouns: Nouns refer to persons, places or things, such as jury, court, family. o

Proper nouns refer to particular persons, places or things and are capitalized, such as Queen Elizabeth, New York City and Court of Appeals.

o

Pronouns are used in place of a noun, sometimes to avoid repetition.

Ex: you, your, my, him, he, she, her, someone, this, that, I, me.

o

When using pronouns, be sure that the subject they refer to is clear.

Ex: Jerry and John were having fun. He had too much fun. (Who is he? Is it Jerry or John?)

o •

Verb tenses: Verbs should express action. o o

•

It is best to use a style manual for “who, which, that” and “who vs. whom.”

Make sure the verb tense matches the action conveyed.

Once a tense is selected, continue to use it for consistency.

Modifiers: Some words give a sentence multiple meanings if used in the wrong place. o

Common modifiers are “only” and “just.”

Right: They just told me you were gone yesterday.

Wrong: Just yesterday, they told me you were gone.

Right: The judge ruled only after hearing argument.

Wrong: Only the judge ruled after hearing arguments.

o

Avoid the imprecision by placing modifiers as close as possible to the word they modify.

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•

Adjectives: Adjectives are descriptive words. o

•

Use caution when using adjectives. Make sure they are descriptive and not editorial.

Prepositions: Prepositional phrases use extra words and are less active. They usually begin with “of,” “by,” “at” or “in.”

Right: The court’s ruling…

Wrong: The ruling of the court…

•

Punctuation: Do not underestimate the importance of proper punctuation. o

Periods and commas always go inside quotation marks.

Ex: “The rule,” stated the court, “requires foreseeability in the view of a reasonable person.”

o

Colons and semicolons always go outside quotation marks.

Ex: The witness concluded, “I didn’t see him coming”; then, he was excused.

o

For a quotation within a quotation, use quotation marks and single quotation marks.

Ex: In the Perkins case, the Second Circuit said, “We hold that the definition of a reasonable person, as this court has stated in Bailey v. Johnson, ‘differs in a sexual harassment case because of the very nature of the claimed injury.’”

o

If the quoted material is altered, enclose the alterations with brackets. Brackets should also be used when adding words or letters to the material, or when changing a letter from upper case to lower case or vice versa.

Ex: Executors are not trustees, but “occupy a position in many respects analogous [to trustees].” Hall v. Schoenwetter, 239 Conn. 553, 558 (1996). This Court recently explained that “[t]he clearly erroneous standard does not apply to motions for summary judgment.” Bishel v.

Connecticut Yankee Atomic Power Co. Inc., 62 Conn. App. 637, 639 (2001).

o

An ellipsis is the sPACE® breaker in a quotation. Indicate that words have been omitted from a quotation by inserting an ellipsis, three periods separated by sPACE®s, with a sPACE® before and after the last period.

Ex: “The court stated that the parties…met the objective.”

o

If the quote excludes material at the end of it, there is a period at the end of the ellipsis.

Ex: “The judge ruled….”

o

While it is common to place an ellipsis at the beginning of a quote, it is not 82

proper. The material should simply be placed within the sentence in quotation marks.

Right: The First Amendment also prohibits laws “respecting an establishment of religion….”

Wrong: The First Amendment also prohibits laws “…respecting an establishment of religion….” o

Exclamation marks. Exclamation marks should not be used unless they are part of a quote.

o

Dashes (-), referred to as em dashes, are used to emphasize something or to set off lists. They are distinguished from hyphens (-) used to form compound words.

Ex: The judge - nearing retirement - had little interest in the oral arguments.

o

Punctuation goes inside a parenthetical (parenthesis) if the sentence is enclosed in parentheses, but outside the end-parenthesis at the end of a sentence.

Ex: John went to court. (Jerry went with him.)

Ex: John went to court. Jerry went with him (as usual).

•

Confusion in word choice: Be sure to use the correct word for the sentence. Below are some examples of common terms frequently used incorrectly: o

Accept/Except

o

Advice/Advise

o

Affect/Effect

o

A lot/Alot

o

Among/Between

o

Apprise/Appraise

o

Argued/Ruled

o

Can not/Cannot

•

Capital/Capitol

•

Cite/Site/Sight

•

Council/Counsel

•

Filed/Entered

•

It’s/Its

•

Liable/libel 83

B. Commonly misspelled words: •

Accommodation

•

Achieve

•

Admissible

•

Cancelled

•

Occasion

Format, Captioning and Parts of Pleadings o

Principal/Principle

o

Shall/May

o

Their/There/They’re

o

Who/Which/That

o

Your/You’re

o

Praecipe

o

Privilege

o

Receive

o

Subpoena

All pleadings filed with the court should follow the formatting rules of the jurisdiction where the case is filed. Federal, state and local rules usually specify the margins, paragraph numbering conventions and pagination to be used. Pleadings contain a caption, body, date and signature.

Fed. R. Civ. P. 10 requires every pleading to have a caption containing the court (jurisdiction and venue), the parties to the proceeding, the case number and the title of the pleading. Each paragraph must be stated separately with numbers. Under Fed. R. Civ. P. 11, all pleadings and motions must be signed by one attorney of record (or individual if the party is pro se) and must state the individual’s address, email and telephone number. The caption below is from the U.S. District Court website:

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UNITED STATES DISTRICT COURT5 FOR THE DISTRICT OF OREGON6 PORTLAND DIVISION Case No: 04-cv-1111-RE7

ABC CORPORATION, an Oregon Corporation,

COMPLAINT8

Plaintiff, v.

Personal Injury Action (28 U.S.C. §1332) DEMAND FOR JURY TRIAL

JOHN Q. SMITH, RICHARD H. ROE, Defendant.9 BODY10 Respectfully submitted, By: ATTORNEY NAME11 BAR # TELEPHONE # Email Attorney for Plaintiff ABC

Corpor ation

5

Jurisdiction Venue 7 Case Number 8 Title of pleading 9 Parties 10 Body of claims and defenses 11 Attorney signing pleading 6

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Citation (including Blue Book and ALWD) A citation is a reference to legal authority and must contain the necessary information for a reader to locate the reference and, at a glance, identify the geographic region and year of the reference for case law. A citation should include cross-references, or parallel citations, because the reader, particularly a judge, may have the regional reporters rather than the official reporter. The official citation should always come first, followed by the parallel citation.

Ex: Jarrett v. Jarrett, 64 Ill. App. 3d 932, 382 N.E.2d 12 (1978).

There are two reference manuals for citation: The Bluebook: A Uniform System of Citation (19th ed. Columbia Law Review Ass’n, et al., eds., 2010) and the Association of Legal Writing Directors’ ALWD Citation Manual (4th ed. 2010). Additionally, some courts and other tribunals have adopted different citation guidelines. It is important to refer to the jurisdictional rules to determine which citation format is required and to then use that format. Although one edition behind, there is a good comparison of the two books at the Association of Legal Writing Directors 12.Examples of commonly used citation formats are below, followed by short form citations, if applicable. There are no substantial differences between the two citation resources for primary authorities, but paralegals should always check the preferred source.

Ex: Constitution – U.S. Const. amend. XIV, §1 Ex: Statutes – 18 U.S.C. § 656 (1982); 18 U.S.C. §656; §656 Ex: Cases – (U.S. Supreme Court, U.S. Court of Appeals) Brown v. Bd. of Educ., 347 U.S. 483, 485 (1954); Brown, 347 U.S. at 485.

United States v. Unruh, 855 F.2d 163 (9th Cir. 1988); United States, 855 F.2d at 163.

Case citations contain the following components: •

Case name;

•

Reporter in which the case is published (volume, reporter, page);

•

Pinpoint citation (directing reader to exact page referenced);

•

Parallel citation, if available;

•

Court issuing the opinion; and

•

Year of the decision.

Ex: Court Rules – Fed. R. Civ. P. 8(a)

12

http://www.alwd.org/PDF/CitationManual_3rd/ALWD-Bluebook%20Comparison%20Charts.pdf (last visited June 1, 2012)

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A few other reminders: •

Always check the citation manual or website to ensure that the resource has been properly cited.

•

When cite checking, verify that the short form citation reflects a case already cited. Be sure to double check the page reference for accuracy.

•

Verify that a citation is correct by going directly to the source. This avoids having a citation with the correct format, but the wrong quote or page reference.

•

Supra refers to something mentioned and cited above. The short form citation may be used in place of “supra.” Most attorneys have a preferred form of citation as neither is right or wrong. Check with the attorney and use his/her preferred method consistently throughout your writing.

•

Infra refers to something mentioned and cited below.

•

Id. refers to the immediately preceding citation. If there are multiple citations, avoid using “Id.,” because it may not be clear as to what it refers.

Critical Analysis Basics A good critical thinker can be a good critical writer; but, if a person is not able to think critically, their writing will reflect it. Critical thinkers are problem solvers. They do not tackle a problem blindly - they dissect it objectively, removing bias, emotion and perceptions to get to the heart of the ruling.

Critical analysis means a change in thinking. This type of thinking requires the paralegal to draw a conclusion and explain how they reached the conclusion. It is similar to solving math problems in primary school; where the grading is as much on the process used to arrive at the answer as the correct answer.

If case analysis is required, the paralegal may need to read a case multiple times to fully understand it.

What is the context? When did the case occur? Who are they talking about? Where is this decision coming from? Why did the court write the opinion? How did the court analyze the case? What are the facts? Are they all relevant? This will help determine the rule being applied and whether the authority is constitutional, statutory, regulatory or common law.

Although we most often think of critical thinking in terms of case analysis, critical thinkers also use these tools for every assignment. We must consider the audience, identify the issues and type of writing assignment, identify and distinguish primary and secondary authorities, identify the rules and then apply the rules to the fact pattern to solve the problem. In other words, we need to have a plan for writing before we begin so that our final work product is not gibberish.

Identify Audience Before writing, the paralegal must be clear on the audience. The audience (reader) may be a legal professional or a layperson. The audience and purpose of your writing will dictate the style and tone. Writing in lay terms to the court would be disrespectful. Writing in legalese to a client sounds condescending and patronizing and may make the reader feel ignorant.

When writing internally, the writing should be objective - its purpose is to analyze, apply and 87

present the law relating to a legal problem. Objective writing analyzes the strengths or weaknesses of the case. If the writing takes a position too early, the analysis may prevent seeing all sides of the issue. Internal memos are neutral and provide the attorney with a perspective on how a court is likely to rule.

Writing for the court should be persuasive and advocate a position. The tone of persuasive writing is key. It should not contain editorial adjectives or appear arrogant. Judges also have a heavy caseload, so concise, organized briefs should be the norm. Here is an example of a good editorial argument: Defendant files what amounts to a new summary judgment motion less than two weeks before trial. This is not only absurd, but it shows how little confidence defendant has in its original motion and its case in general. Parties who believe they are right are confident in their position and do not pull stunts like this.

There is a way to state the same information without putting personal opinions into your writing.

It also seems rather informal to use the term “pull stunts.”

In what can only be characterized as an act of desperation, Defendant files what amounts to a new summary judgment motion less than two weeks before trial. This shows how little confidence defendant has in its original motion and its case in general. Parties who are confident in their position do not file last minute motions absent new evidence.

When writing to the client, be mindful of their expertise. If the client is a corporation and the reader is in-house counsel, the writing can be at a higher level and contain legal terms. If your client is unfamiliar with procedure, be sure to explain the information and use lay terms. For example, it would be unnecessary to explain “discovery” to in-house counsel, but a lay person would need an explanation of discovery and the obligations required. Cultural differences may also affect the terms used in client communications if the client is a foreign entity or if English is not their primary language. There are many legal concepts and procedures taken for granted. It is important to be sure the client understands the context based on their own background.

Identify Issues Your analytical success is the ability to properly identify the issue(s) involved. It is not possible to draft a complaint or responsive pleading, prepare a case brief, draft discovery or even prepare a letter without understanding the issues and knowing the desired end goal. What legal theories form the basis of the problem? What is the question in dispute?

Paralegals at the beginning of their career will likely rely on the attorney to help with the legal issue. Legal issues will become more familiar as the paralegal becomes more comfortable; it will become easier to discern between statutory and constitutional issues or common law more quickly.

Start by asking: “What area of law does this fact pattern suggest?” With experience, the paralegal will automatically know whether an act is a misdemeanor or a felony (statutory), a violation of civil rights (constitutional) or a claim for breach of contract or negligence (case law).

When identifying issues, the paralegal may find that the issue is a question of fact, rather than a question of law. Here, the goal is to determine exactly what occurred. For example, in making a discovery motion, the parties may disagree on whether a report is protected by attorney-client privilege or work product doctrine. The conclusion will be based on what facts created the protection and application of the evidentiary rules.

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Identify Primary and Secondary Legal Authority Once the issues involved are identified, the authorities that back up your theory must be identified.

Is the authority a statute or case law? Is it an evidentiary rule or procedural rule? What legal authority is being relied upon to resolve the question in dispute? Study the authority backwards and forwards until there is a clear understanding.

As is known from legal research, secondary sources are excellent ways to begin your search for primary authorities; however, secondary sources should not be used as primary authority. The paralegal must be able to quickly distinguish primary from secondary authorities.

Primary authorities are the law and include constitutional law, statutes, rulings and regulations issued by authorized administrative bodies and written opinions of the courts (case law).

Secondary authorities are not law, but may summarize the law. These sources are found in treatises, restatements, legal encyclopedias, periodicals or dictionaries. A treatise is generally written by an attorney or judge, and is an opinion or interpretation of an issue at law. Treatises include American Law Reports, Prosser Law of Torts, Restatement of Law of Torts, Corbin on Contracts, Couch on Insurance, etc. Periodicals and journals include the Law Review Journals published by law schools throughout the U.S. In your analysis, do not forget to identify any authorities cited by other parties. Quotes from a case may be incomplete, citations may be wrong or more current case law may be found. The paralegal must thoroughly understand all sides of the argument in order to properly assess the line of reasoning.

Identify Rules The paralegal must continue to dissect a specific rule once it is identified. For example, if your theory is negligence, break down the elements of the cause of action. Understanding the elements allows one to see each of the components to be met before reaching a successful conclusion. In negligence, there must be a valid duty, a breach of that duty, the breach must have caused injury and damages. If there is no causal link between a breach and the injury, the action fails. If there are no damages, there was no harm. By identifying each of the elements, the paralegal is quickly prepared to apply the elements to his/her facts.

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If the issue involves a discovery dispute under evidentiary rules, read the commentaries to the rule, identify case law interpreting the rule and outline or chart out the elements required for success.

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If discovery requests are involved, read the rules of civil procedure and understand the scope of discovery. Read the history of the rules to see their intent.

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If statutory authority applies, the statute, its commentary and the legislative history of the law must be understood.

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Drafting discovery will rely on your understanding of the issues and rules so that requests based on legal theories can be properly tailored.

While every piece of the critical analysis is essential, application of the rules to the facts is where everything is brought together. The important thing is to take the necessary time to understand each issue and any corresponding rule before determining its application to your facts.

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Apply Rules to Fact Pattern to Solve Problem When presented with a scenario by a client, a preliminary legal issue is identified. Legal issues may be referred to as the “rule of law” and may be statutes, case law, procedural rules or other primary authorities. Legal analysis requires the application of the law to the facts in the case. The goal is to find a connection between previous rules and the facts.

The paralegal’s job is to weave together the facts with the law. We may know what happened, but the interpretation of the law will determine whether the facts give rise to the conclusion. Take each element and apply your facts to each of them. A chart can be invaluable in seeing the visual perspective of each element and supporting fact side by side.

IRAC Method of Case Analysis IRAC is a method for analyzing the law; it is an acronym for the structure used to conduct an analysis - issue, rule, analysis (or application) and conclusion - and is useful in creating a template with some or all of the components. Keep in mind that your analysis is intended to negate the reader’s need to read and synthesize the cases. Provide as much information as necessary for them to make a decision.

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Issue: The issue is the legal question raised by the facts of the case. What problem are we trying to solve? Understanding the problem before embarking on the analysis is essential.

This is where the context of your analysis and writing is established.

There may be issues of fact, law or a combination of the two. Both issues of fact and law may relate to the matter at hand, or may involve the interpretation of the fact or law at issue.

If there is more than one issue, each should be analyzed separately. Issues should be phrased so the reader understands the issue without reading the facts and should be in the form of a question. Each issue should include the area of law raised.

Ex: Under contract law, is a party required to pay for work performed by another party when negotiations were still in progress and no agreement on price was reached?

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Rule: The rule is the statement of the law that governs the issue. The rule may be from statutes, cases or other authorities. Be aware of the reasoning behind the rule if it comes from a case. If more than one rule applies, begin with the general rule and follow it with specific rules. If exceptions apply because the law is not settled, be sure to include those exceptions.

When reading cases, the paralegal must cull the rules. Occasionally, there will be a declarative statement that says: “The rule of law in this case is…”; but, most often, these types of statements should be extracted. Rules should be stated to demonstrate what must be proven. Keep the discussion focused only on the rule that applies in your case.

Ex: Under Colorado law, the elements of contract law require….

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Application or Analysis: Apply the rule to your situation. Begin with a reference to the 90

rule of law. Compare and contrast the facts of the case with your facts. Distinguish cases from your position, either on facts or reasoning. A good analysis discusses all facts and weaves them with the rule and reasoning. Explain how and why the law will impact the issue. Do not reach a conclusion here. Simply take your reader through each element of the rule and apply the facts.

Ex: Under Smith, supra an enforceable contract is created when….

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Conclusion: Summarize your position. Frightening as it is, the paralegal must take a position now. Briefly refer to the rule of law and answer the question raised. Each issue, if more than one, should be addressed. Your conclusion should state what a court would likely do under the circumstances.

Ex: An oral agreement was not reached because….

Legal Writing Products Types of Pleadings Fed. R. Civ. P. 7 states that the only pleadings allowed are a complaint; a third party complaint; an answer to a complaint or a counterclaim, cross-claim or third-party complaint; and a reply to an answer if ordered by the court. These are the claims and defenses that put the case “at issue.” Motions and petitions are not “pleadings,” even though some paralegals and even attorneys make the mistake of referring to motions and petitions as such.

Pleadings that state a claim for relief must contain: “(1) a short and plain statement of the grounds for the court’s jurisdiction…; (2) a short and plain statement of the claim showing the pleader is entitled to relief; and (3) a demand for the relief sought, which may include… alternative types of relief.” See Fed. R. Civ. P. 8(1)13 Simply put, a claim must state the basis the court has to make a binding ruling, present a short, plain cause of action and state the prayer for relief requested, whether equitable or monetary.

Federal courts are “notice pleading” courts in which the parties need not plead the ultimate facts of the claim, but provide enough information so the claim is understood. Certain claims must be pled with specificity. Fed. R. Civ. P. 9.

All pleadings follow the same formatting requirements for the jurisdiction in which the action is pending. Be sure to check local federal court rules, because they usually set forth any formatting requirements, such as two lines of text on the signature page rather than a signature page with no text.

Each paragraph must be numbered. This allows easy reference to allegations without the need to restate all text.

Complaints Plaintiff’s claims are contained in the complaint. Following the caption, the body contains the substance of each claim. The first paragraph contains the jurisdictional basis for the claim. See Forms 10 through 21 of the Appendix to the FRCP14 (hereinafter, “the Appendix”). See also, Domain 02: –Substantive Areas of Law: Civil Litigation, or Torts for more information on jurisdiction.

13 http://www.uscourts.gov/RulesAndPolicies/FederalRulemaking/RulesAndForms/IllustrativeCivilRulesForms.aspx (last visited June 1,

2012) 14http://www.law.cornell.edu/rules/frcp/rule_8 (last visited June 1, 2012).

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Each cause of action must contain allegations for every element required, or the complaint could be dismissed. Each element should be in a separately numbered paragraph. If the elements of your cause of action are not apparent, jury instructions are a good starting place to determine elements of legal theories. Although jury instructions are not the actual law, they will provide each element of a legal theory with a citation to an appropriate authority. There are a number of uniform jury instructions, both federal and state. Some model instructions have commentaries explaining the elements in greater detail.

If more than one cause of action is alleged, each cause of action should be identified as a separate count. All complaints close with a prayer for relief. They usually begin with “wherefore” or “therefore” and restate what remedy is sought. Alternative theories for relief may be pled.

Answers and Other Responsive Pleadings Answer The defendant may file an answer to the complaint. In preparing the answer, defendant must admit or deny the allegations. See Forms 30 and 31 of the Appendix. It is insufficient and considered bad faith to file a blanket denial of allegations if an allegation is true. If the defendant lacks personal knowledge of a fact, defendant should so state. If any allegation is not specifically denied, it is deemed admitted. Fed. R. Civ. P. 12(a).

An answer may contain affirmative defenses. An affirmative defense is a fact or event that will defeat, offset or avoid plaintiff’s claim. Fed R. Civ. P. 8(c). This type of defense alleges that even if the allegation is true, there are other circumstances that negate the allegation or facts to be considered. An affirmative defense need not be a comprehensive statement of elements; it can be a brief allegation, usually only one sentence. See Form 31 of the Appendix.

Examples of affirmative defenses include accord and satisfaction, contributory negligence, duress, estoppel, failure of consideration, fraud, laches, release, res judicata, statute of limitations and waiver. Affirmative defenses may be found in jury instructions, practice manuals and treatises.

In some cases, the defendant may have a claim against the plaintiff, a co-defendant or someone who is not a party to the original action (third-party). These claims must result from the same circumstances or subject matter in the complaint.

Counterclaim The answer may contain a counterclaim. A counterclaim is one or more claims made by the defendant against the plaintiff which arise from the same issues alleged in the complaint. Fed. R. Civ. P. 13. See Form 31 of the Appendix. Some counterclaims are compulsory and others are permissive. Compulsory counterclaims must be brought at the time of filing the answer to the complaint if the claim arises from the same subject matter. Permissive counterclaims state a counterclaim against an opposing party for any claim that is not compulsory and may be filed at a later time.

Cross-claim The answer may contain a cross-claim, which is a claim that one or more defendants may have against another defendant in the same case. See Form 16 of the Appendix. A cross-claim must be related to the original action in that it arises from the same transaction or occurrence as the original action or a counterclaim, or involves property that is the subject matter of the 92

original action. Fed. R. Civ. P. 13(g).

Third-party claim A defendant may bring a third-party complaint against someone not a party to the original suit, becoming both a defendant in the original suit and a third-party plaintiff in the new complaint.

Fed. R. Civ. P. 14. See Form 16 of the Appendix.

Counterclaims, cross-claims and third-party claims are set forth in the same way a claim is pled in a complaint. Answers to counterclaims, cross-claims and third-party claims are prepared by the respective responding parties under the same rules as the answer to the complaint, above.

Motions A motion is a request for a court order. Some motions against the complaint ask the court to order that the complaint be “cleaned up,” such as by striking certain portions of the complaint or pleading claims with more specificity. Motions to “clean up” the pleadings - and some motions to dismiss must be raised before filing an answer to the complaint.

Motions must be in writing, state with particularity the grounds for seeking the order and state the relief sought. Fed. R. Civ. P. 7(b). In form, motions follow the same formatting as pleadings. Most courts require the first paragraph of a motion to contain a certification that the parties have conferred about the subject matter of the motion and attempted to resolve it before filing the motion.

Check the federal or state rules, as well as the local rules in your jurisdiction for these requirements.

Ex: Defendant certifies the parties conferred by telephone on April 30, 2012 and have made a good faith effort to resolve this dispute, but were unable to reach an agreement.

Motions should contain a brief introduction as to what the motion asks the court to do, state the legal authority that provides the basis for bringing the motion, a brief statement of facts or background and a clear and concise discussion. Motions are accompanied by a points and authorities (or memorandum of law). If not too long, the points and authorities may be included within the motion. Some motions require an affidavit authenticating facts or documentary evidence submitted in the motion.

Multiple motions can be contained in one document, but must be separately identified. For example, a defendant might move to strike part of the complaint, make more definite and certain another part (or plead in the alternative) and move to dismiss. See Form 40 of the Appendix. Certain defenses must be raised in a motion to dismiss before the filing of a responsive pleading. See Fed. R. Civ. P. 12(b) for a list of defenses which may be asserted by motion.

Ex: Pursuant to Fed. R. Civ. P. 12(b)(6), defendant moves to dismiss the complaint because it fails to state a claim upon which relief can be granted. This motion is supported by the memorandum of law and affidavit of John Smith.

Under Fed. R. Civ. P. 12(f), the court may strike an insufficient defense (indicating a plaintiff moved to strike affirmative defenses or insufficient responsive pleadings) or “any redundant, immaterial, impertinent, or scandalous matter.” The latter would include allegations that have no relevance or are alleged clearly for purposes of creating a bias or negative impression. Insufficient defenses are difficult to describe, but obvious when seen.

Ex: Pursuant to Fed. R. Civ. P. 12(f), defendant moves for an order striking paragraphs 4, 7 and 12 of the complaint on the grounds they are irrelevant, fraudulent and defamatory….

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A motion to make more definite and certain, asks the court to rule that one or more statements in the complaint are so vague or ambiguous that defendant is unable to file a response. Fed. R. Civ. P. 12(e).

Ex: If it is the decision of the court to deny defendant’s motions 1 and 2 pursuant to Fed. R. Civ. P. 12(e), defendant requests, in the alternative, an order requiring plaintiff to make more definite and certain paragraphs 4, 7 and 12 of the complaint to specifically describe the alleged fraudulent conduct of….

Persuasive Writing Persuasive writing is used when advocating a position and convincing a reader to go along with your thinking. This type of writing is used for trial and appellate court briefs, as well as briefs supporting motions. Briefs supporting motions may be called a memorandum of points and authorities or memorandum of law in support of a motion. All motions must be accompanied by the points and authorities (legal authorities) supporting the basis for bringing the motion or a brief. Fed. R. Civ. P. 7(b).

Summary Judgment A summary judgment motion states that there are no disputed facts and that the moving party is entitled to judgment as a matter of law, negating the need for a trial on all or some of the issues.

Fed. R. Civ. P. 56. A summary judgment includes the motion and supporting legal authorities, along with one or more affidavits or declarations. An affidavit or declaration, in accordance with the Rule, must be made on personal knowledge, state facts that would be admissible in evidence and show that the affiant or declarant is competent to testify on the matters stated. Affidavits and declarations are separate documents which may be filed with the motion and memorandum. They may also be used to authenticate documents.

Some courts may require a separate document, such as Proposed Findings of Fact or Concise Statement of Facts. This package of documents must stand on its own. The court will not search the record for evidence. Each fact is contained in a separately numbered paragraph with a reference to the evidence supporting that fact. Evidence includes deposition testimony, answers to interrogatories, admissions made in response to a request for admissions or in a responsive pleading and affidavits. The points and authorities or memorandum of law contain the legal argument.

Ex: Jorgensen signed the contract on July 30, 2009. Sven Jorgensen Affidavit, p. 2, ¶ 2.

The legal argument in summary judgment memoranda begins with the standards for granting summary judgment. Most firms have a form three or four-paragraph brief which can be applied to summary judgment motions for a particular jurisdiction. The argument will come next. Each legal theory should be a separate section opening with a strong proposition (see below). Within every section, identify each element of the theory, listing the facts that support or contradict that theory along with a citation to the relevant case law. Each element of the legal theory should be a subproposition, followed by a review of the facts and a citation to legal authority. This allows the court to easily make the determination of whether the burden has been met by the moving party.

Be sure to check your local federal court rules regarding page limits and other formatting requirements. Discovery motions and motions for summary judgment usually have separate local rules.

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Briefs A brief, as with other court filings, follows the format for pleadings. Each section of the brief should have a distinct heading for easier reading, transition and accessibility. At every opportunity, statements should be made in a persuasive manner, from the introduction through the conclusion.

Briefs contain an introduction, statement of the case or facts, summary of argument, propositions, argument and authorities and conclusion. They are often accompanied by a table of contents and table of authorities, depending on the procedural rules of the jurisdiction. Be sure to check local federal court rules for any additional requirements.

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Introductions, also called preliminary statements, provide the opening for the brief. The introduction should be no more than three or four sentences and include the nature of the case, parties involved and the purpose of the brief. This section should identify the party submitting the brief, inform the court of the relief requested and should be kept short.

This preliminary statement should provide the court with sufficient information to understand the issues to be addressed in the brief.

The introduction can be written either before or after the brief is drafted. Some people like the focus provided by an introductory statement; others prefer to get to the heart of the brief and plug the introductory statement in later.

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A statement of facts, or statement of the case, follows the preliminary statement. This section can be given some other title, if desired, but the content still remains a statement of facts or statement of the case. The purpose of this section is to set forth the history of the case, obviating the need for a review of other documents already filed, by providing only the facts relevant to the problem being presented.

Relevant facts are those which are needed to support the issues addressed in the brief, as well as related background facts. There are some who advocate stating the facts most favorable to the case and minimizing those which are not so favorable, without being deceptive. Still another approach is to state the facts in chronological order. Check with your attorney to determine whether he/she has a preference.

It is prudent to present facts which may not be favorable to your client, but which are sure to be enumerated by the opposition. Doing so allows a forum for stating your position to overcome those facts and, perhaps, show that they are not as unfavorable as once perceived.

Addressing facts which are unfavorable to your position takes away any surprise factor the opposition may have. Be sure to cite to the record to support your facts.

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The summary of argument is next and simply summarizes the argument that is to follow.

The problem is stated, together with the relief requested and the law that supports your position and justifies the requested relief.

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Propositions are part of the argument section and are the headings that state the legal issue being discussed in the rest of the paragraph. They are similar to a thesis statement.

Some propositions may contain subcomponents that flow from the initial proposition.

When moving to the next point, present a new proposition or legal issue. The strongest propositions should be stated first.

Propositions are stated affirmatively, not as questions. The proposition statement should 95

tell the reader what it should do and why. The issue should be specific and stated from your client’s perspective.

Take the time to write and rewrite the propositions. If the reader will just be scanning the brief for salient information, the proposition must catch their eye and provide either the information they need or enough information to get them reading further.

Ex: Harry Stone breached the standard duty of care by driving at an excessive speed in hazardous road conditions, which caused him to rear-end John Smith.

In the above instance, the breach of duty element of negligence is stated with the facts creating the duty.

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The argument is the meat of the brief. Having good paragraph headings is essential in that it tells the reader what is coming in the following paragraph(s). Couch your headings in terms that will entice the reader to keep reading. Check with your attorney to determine his/her recommendations or preferences. This is where your case is presented and where the law is analyzed, with an explanation as to how each particular case relates to the relief requested and why your theory should be followed. Apply the law to your set of facts and cite cases that support your position, starting with those most favorable.

Again, do not overlook cases that may be unfavorable. This is your opportunity to present an argument to overcome those cases and may also take away any element of surprise the opposition may have.

Look at the question from the perspective of the opposition to determine what their arguments may be. At a minimum, your attorney will be prepared for the negative arguments and will be able to provide facts and cases to render them moot.

When citing cases, be sure to include parallel citations to ensure that several sources are provided. If citing a case out-of-state, always cite the regional reporter to aid the judge in locating the opinion.

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The conclusion should be short and sweet. This is the last chance to concisely restate the facts and issues along with the relief being sought.

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Some trial courts require a table of contents, which is an index of the brief with associated page numbers. Most word processing programs contain a feature for generating an automatic table of contents. Paralegals who generate a manual table of contents should triple check the page numbers for accuracy on the final proofing as incorrect page references may cloud the reader’s perception of the detail and accuracy of the remaining content.

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Similarly, the table of authorities is an index of all statutes, cases and other authorities cited in the brief. Case citations are listed alphabetically, with the full citation and corresponding pages where they are cited in the brief. Constitutional and statutory authorities appear next, followed by any other authorities, such as procedural rules or treatises.

While being persuasive, your brief should not slant issues; any distortion can destroy the entire 96

brief’s credibility. Be persuasive, but accurate.

Examples of briefs can be found by searching “briefs” at the ACLU website15. Take some time to look through briefs to see the various pleadings formats, table of contents, table of authorities, components of the brief and, in particular, the propositions contained in the arguments.

Discovery Requests and Responses

One of the primary things to remember when preparing discovery requests and responses is to check with your attorney to determine his/her preference in preparation of these documents. Your firm most likely has appropriate forms for all phases of discovery, which can be adapted for use in your particular case. Also, check your local federal court rules for any differences between those and the Federal Rules of Civil Procedure.

Discovery is the formal process of obtaining information and evidence during litigation. Discovery is a fact-finding expedition and takes the form of both physical and verbal communications. The rules provide for parties to obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense - including the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. Non-privileged information relates to all communications except those between a party and his/her lawyers.

Relevant evidence is broadly defined to mean evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26.

Interrogatories are written questions that must be answered. The answering party must sign a verification and the attorney who objects must sign any objections. Fed. R. Civ. P. 33 limits interrogatories to 25, including discrete subparts; but some jurisdictions permit additional questions (e.g., 35 in California).

Requests for Admission are written requests that ask the responding party to either admit or deny the truth of any matters relating to facts, the application of law to fact or opinions about either, or to admit the genuineness of a document. When requesting that a party admit to the genuineness of a document, the document must accompany the request. Fed. R. Civ. P. 36. See Form 51 of the Appendix.

Requests for Production require a party to produce all documents relevant to the issues in dispute documents include physical documents, as well as electronic documents, including emails, spreadsheets, reports or any other electronic representations. The request must specify a reasonable time, place, and manner for inspection and copying and may also specify the form of the production.

See Form 50 of the Appendix. Interrogatories and requests for production may be combined in the same 15

http://www.aclu.org (last visited October 10, 2024)

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document. No other form of discovery is permitted to be combined with a request for admissions.

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Discovery Requests: The goal of discovery is to elicit responses, not objections or evasive answers. It is essential that each inquiry be carefully crafted. a. Caption. Discovery requests have the general appearance of other pleadings in the case, beginning with the caption of the pleading. The title of a discovery request must identify to whom they are directed and whether it is the first request or second, and so on. b. Introduction. Discovery requests should open with the citation specifically providing for them and the general rules for discovery. By incorporating the rules, the need for comprehensive definitions and instructions is alleviated.

Ex: Pursuant to Fed. R. Civ. P. 26 and 33, defendant requests plaintiff to answer the following interrogatories under oath within 30 days hereof. c. Definitions and Instructions. Define terms which will be used frequently. The purpose of the definition is to allow for simple and clear requests. To avoid insufficient responses, define terms such as “identify” or “state.” If your case involves an accident, it is helpful to specifically define the accident to be relieved from describing the specific accident in each request. Identify the timeframe covered by the inquiry, provided it remains the same. d. Requests. Requests must be able to stand on their own. As an example, do not incorporate a definition from the complaint - restate the definition on its own.

Crafting discovery requests is an art. If the request is too narrow, the responding party can only give what is requested, withholding relevant information that was not requested. If the request is too broad, it may solicit an objection which, at the very least, will delay production. Requests should concentrate on the source of written or other records related to the claims in the complaint, such as correspondence, diaries, email and photographs.

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Discovery responses: In responding to discovery, some courts require the interrogatory, request for admission or request for production be restated and followed by the response; other courts do not. Check the rules in your jurisdiction, usually found in the local federal court rules. Again, your firm will have forms for discovery responses which can be adapted for use in your case.

Present responses in a concise manner and do not provide information which is not requested.

There are two options for responding to discovery. Either provide the information briefly and concisely, without offering more than is asked or, object to a request for the reasons listed in Fed. R. Civ. P. 26. The more common objections include burdensome, overbroad, not calculated to lead to the discovery of admissible evidence, vague and ambiguous, privileged, proprietary information and a more convenient source. Objections must be stated with specificity.

It is the client’s job to provide the facts, documents and all other information necessary to assist in responding to the discovery. It is the paralegal’s job to draft a response and the attorney’s job to determine the necessary objections. Do not be afraid to utilize objections, but do not use them without good reason. Do not guess or assume what information is being requested; if the question is not clearly written on the paper, object on that basis.

Fed. R. Civ. P. 26(e) provides for a continuing obligation to supplement responses. As additional information becomes available, the paralegal should have a system for 98

supplementing discovery responses.

Discovery generally falls into four categories: depositions, interrogatories, requests for admissions and requests for documents. Discovery follows the formatting requirements of pleadings. Like pleadings, discovery requests must be stated concisely.

Depositions are oral examinations of witnesses. Depositions are a formal proceeding that occurs before trial so the parties can find out what a particular lay or expert witness knows.

Depositions are an excellent vehicle for locating additional witnesses and documents. All depositions require a notice of deposition. The notice must state the: (1) time; (2) place; (3) name and address of deponent; and (4) method. The notice may also include a request to produce documents at the deposition. If the notice is for deposition of a non-party, a subpoena must be served.

Additional rules apply for depositions by phone or other remote means. Fed. R. Civ. P. 30. The language contained in a notice for deposition is fairly standard; your firm will most likely have a form that can be adapted to your particular use.

Relate interrogatories directly to the claims or defenses of the party responding to them.

Specifically identify information sought where possible; otherwise, categorize. Do not simply ask for information that serves as evidence of a legal allegation. Ask for information that serves as evidence of factual allegations. The main, guiding rule is that the request must seek information and material that is relevant and is reasonably calculated to lead to admissible evidence.

Memoranda of Law Memoranda of law usually fall into two categories: case briefing and the legal analysis memo (internal memorandum of law). Case briefings are useful tools for preparing a legal analysis memo.

Case Briefing A case brief is a summary of a single court decision - a book report on that specific court opinion.

The brief is your analysis of the relevant facts and the court’s reasoning in reaching its decision.

Your summary should identify procedural history, legal issues or questions presented, the holding and how the court arrived at its decision.

It is important for the paralegal to recognize his/her audience and how they plan to use your brief.

Generally, the case brief is used to provide information for an attorney (so they do not have to read the case immediately) or to educate the paralegal when preparing a comprehensive legal analysis of multiple cases. Case briefs should be in memo format and use complete sentences. Avoid overquoting from the opinion and try to keep to one page.

While it is acceptable to use an outline to organize your thoughts, the brief should be written in narrative form. There are many ways to organize a case brief, but the components usually remain the same. Each component should be used as a heading for the information to follow.

Excerpted case:

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896 F.2d 507, 58 Ed. Law Rep. 1101 (Cite as: 896 F.2d 507)16 United States Court of Appeals, Eleventh Circuit.

JEFFREY S., a minor, by ERNEST S., his father and next friend, Plaintiff-Appellee, v.

STATE BOARD OF EDUCATION OF STATE OF GEORGIA; Dr. Werner Rogers, in his official capacity as Superintendent of the State Board of Education, Defendants, Bryan County School District; Dr. Sallie Brewer, in her official capacity as Superintendent of the Bryan County School District, Defendants-Appellants.17 No. 89-8784.

March 13, 1990.18 School district appealed from order of the United States District Court for the Southern District of Georgia, No. CV488-001, Dudley H. Bowen, Jr., J., which granted preliminary injunction ordering school district to allow handicap student to remain in a class.19 The Court of Appeals held that: (1) magistrate had conducted proper hearing on pretrial motion for preliminary injunction and had not improperly conducted a full scale civil trial without the consent of the parties, but (2) district court had not exercised de novo review.20 Vacated and remanded.21 •

Citation. What case are we talking about? State the case name, citation and year, including parallel citations, if known.

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Procedural history. How did the case reach this appellate court? What happened before it got here? Who are the parties and what was the cause of action? What was the result at the trial court? Who appealed? What happened in any prior appellate proceedings? State just enough information so the reader will have a foundation for reading further.

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Facts. Include only the facts relevant to the court’s decision on appeal. For example, a defendant was convicted of murder and sentenced to death. Defendant does not appeal the murder conviction, but appeals the sentencing. It may not be necessary to include all of the facts relating to the murder itself; only include the facts relevant to the sentence.

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Issue(s). What precise legal question(s) did the court have to resolve to decide the case?

The issue should be stated in the form of a question so that a “yes” or “no” answer can be made. The issue includes the dispute based on the facts. State your question in generic terms, showing the relationship between the facts and the law.

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Brief Answer. Yes or no.

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Citation Case Name 18 Date 19 Procedural History 20 Holding 21 Disposition 17

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•

Holding. What did the court decide? This should be fairly short. While the court sometimes specifically transitions itself into the holding, most often, the information must be extracted. The holding is also where the disposition should be stated (e.g., affirmed, reversed and remanded).

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Rationale. How did the court arrive at its decision? Explain the reasoning process, which is usually precedent (case law, statutes), but may be based on other policy-type issues.

What legal principle did the court follow and how were they applied to the facts of this case? If there were arguments the court found persuasive, draw attention to them.

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Dissenting/concurring opinions. If there was a dissenting or concurring opinion of significance to the issue at hand, briefly state that here. Such an opinion may indicate a changing perspective. Be certain the opinion is relevant to the issue, however, as they sometimes relate to a different issue.

•

Comments. This section is for other information to be included. If the court attempted to skirt around an issue, that can be noted here. In some cases, there may be a statement of law mentioned that is meaningful, but not part of the court decision.

Legal Analysis Memos A legal analysis memorandum, or legal research memo, analyzes a problem in relation to prior case law or statutory laws. This type of memo requires the paralegal to research other cases and apply the law to the current issue. The legal research memo is often used to determine the strengths or weaknesses of the case. Case briefing comes in very handy; the memo will go more quickly if case briefs have been prepared on the research performed. It may be helpful to create a chart of each of the case briefs, identifying each component, along with the problem at hand.

Graphics help demonstrate similarities and differences in research and expedites the writing process.

Legal memos are written in the form of an interoffice memorandum. Each section of the memo should have a distinct heading for easier reading, transitions and accessibility.

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Introduction. Restate the assignment given. This is optional, but lays the foundation for what follows.

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Statement of Facts. Provide only the relevant facts to the problem being solved. The paralegal should assume the reader knows nothing except for the information provided.

Facts should be objective.

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Issue. State the issue in the form of a question.

Ex: Does a spectator at a sporting event assume the risk of injury?

Ex: Is a spectator at a sporting event precluded from bringing a claim for negligence against a stadium owner or the sports team?

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•

Brief Answer. The answer will be “yes” or “no,” with a brief statement of the reason.

•

Discussion. Apply the law to the issue presented. Avoid bias even if the law is not in your favor. Address each case in order of their importance. In other words, discuss the most favorable case first. The best approach is to discuss the facts and holding of the case, followed by the court’s rationale. When addressing the holding, provide the citation.

Then, describe how those facts apply to your problem, showing the similarities. Do this for each case relied upon.

•

Conclusion. Restate your analysis and the answer to the question presented. Do not be afraid to be decisive. The assignment was given so that a conclusion would be reached.

Settlements It is common for parties to explore settlement. If done informally, negotiations will likely include a confidential settlement letter. The goal is to point out to the other party the strengths of your case and weaknesses in their case to reach a common ground. Letters should still be persuasive - it is a bit difficult to reach an agreement if the reader is put on the defensive at the outset. Settlement letters contain the following components: •

Factual Summary. Keep to the facts; many of them may not be in dispute. Do not editorialize or argue.

•

Opposition claims. Once the facts are set forth objectively, the claims of the other party must be addressed. State the case of the other side objectively, as it is understood, and frame the issues. It may be prudent to then summarize just the facts or issues in dispute to limit the focus to finding a solution to those issues.

•

Authorities and Analysis. This is where the legal analysis is applied to the facts. This section will be very similar to preparing the discussion section of an internal legal memorandum, but more persuasive.

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Demand. The letter must have some sort of demand so that the other party knows what it will take to settle. Set forth a conclusion that identifies the remedy and why it is reasonable.

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Signature. Attorneys must sign settlement letters.

As a reminder, clients must be part of the decision process for demanding a settlement or considering an offer of settlement. Most state rules of professional conduct require attorneys to apprise their clients of any settlement offers before responding.

Some courts require a mandatory settlement conference to encourage the parties to resolve the matter before trial. These proceedings usually require a settlement conference statement that describes the dispute, highlights the facts and provides the law and argument. This type of statement follows the formatting for pleadings in that jurisdiction. Components to be addressed in the statement may be found in local federal court rules or special rules for the assigned judge. The audience is a settlement judge or other court-appointed legal professional. The paralegal’s goal is to educate the reader and raise issues of concern with the other party’s facts. The tone should be persuasive.

If the parties are able to settle their dispute, they may enter into a Settlement Agreement and Release.

These agreements tend to be written by jurisdiction, so it is important to understand both state and

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federal rules. Be sure to check with your attorney to determine what form he/she likes to follow. It is probable that your firm will have several forms available for adaptation to your use.

Forms - Locate and Utilize It is always easier to work from some sort of form when drafting documents. However, exercise caution when using forms, which can be useful tools, but should not be utilized blindly. Forms should be used as examples for guidance rather than the only option unless they are published by the local federal court.

Forms tend to be jurisdiction specific. For example, do not use a California form for a pleading in another state, because that state may have different requirements. Local federal rules typically contain specific formatting requirements and local procedures relating to documents to be filed with that court. When looking for an example, try to stay in the appropriate jurisdiction.

Forms become outdated or are not always updated. When using forms, check the local rules to be sure they are current. For example, when following a legal memorandum form from your firm’s brief bank, be sure to cite check to ensure the case law is still good.

It may be surprising to learn that a number of federal courts publish forms specific to their jurisdiction. Again, before reinventing the wheel, check with your attorney for direction.

Treatises often include forms. Some examples include: Moore’s Federal Practice Forms, American Jurisprudence Legal Forms, Bender’s Federal Practice Forms and West’s Legal Forms. The North Carolina Central University School of Law has a great Subject Guide to Legal Treatises in which they list general practice forms. Most libraries will have form books; some are also available online from Westlaw® or LexisNexis®.

Client Communications Communications with counsel, clients and the court usually occur in the form of letters. They ask a question, provide an answer or status, demand an action, memorialize an event or verbal conversation or alert the recipient to an item being transmitted. It goes without saying that in all communications, paralegals must identify themselves as such. If your letter seeks action, include a deadline for the action. If the deadline passes with no action, send a follow-up letter.

All correspondence should contain: •

Date.

•

Manner of delivery if by means other than regular mail. Dates of filing, receipt and service are important. Note on your letter the manner of delivery: first class mail, facsimile, electronic mail or overnight mail.

•

Recipient’s name, title, entity (company, court), address.

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Subject (Re:); if there is a case number, include it.

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Salutation (Dear Mr./Ms.).

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Body/Substance.

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•

Closing (Sincerely).

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Signature and title of sender.

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Note copies to others, together with any enclosures. This is more important than one may think. It will support whether someone received a letter or its enclosures.

Tailor your communication to your audience - in tone, terminology and explanations. For example, a status letter to a lay client will require definitions of some terms, i.e., deposition, discovery request, hearing. The client will also need a more thorough understanding of the timelines, deadlines, his/her obligations and so forth. On the other hand, a status letter to an insurance adjuster need only describe action without the need for as much explanation. When confirming a conversation, be specific about the manner and date of the communication.

Under statute, demand letters in collection matters require more specific information. While the paralegal should review his/her state’s statute, the letter will generally contain a description of the facts leading to the claim, the demand remedy (pay money, perform contract), the consequences for failing to comply and the deadline for compliance.

Opinion letters provide a legal opinion and can only be signed by attorneys. Drafting an opinion letter is similar to drafting a legal memorandum. The opinion letter should specifically identify the question for which an opinion is sought and briefly provide the answer. Next, state the facts that were considered in arriving at the conclusion, followed by a discussion of your analysis. If action is required, it should be specified with deadlines for doing so; any recommendations should follow your conclusion.

Many communications - with clients, opposing counsel and witnesses - are in email form. Email must be considered formal correspondence as it is too easy to think of email as informal. When writing email, incorporate the following essential components of communication: •

Think before hitting send;

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Proofread;

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Be concise;

•

Be sure to reply to the appropriate recipients (reply vs. reply to all);

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Verify email addresses and recipients; and

•

Be sure to attach the appropriate attachment if one is indicated.

Appellate Briefing Unless appeals are a specialty, it is unlikely that the paralegal will be called upon to prepare an appellate brief. However, the paralegal may certainly assist in pulling records together and getting such a brief ready for submission. Appellate court briefs are used to appeal decisions of the lower trial courts. They are more comprehensive and detailed than trial court briefs and focus on errors the lower court allegedly

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made. Rules for filing appellate court briefs are subject to specific appellate court rules. See the Federal Rules of Appellate Procedure22.

Likewise, state courts have separate rules for appealing to the Supreme Court and Court of Appeals. Be sure to check the jurisdictional rules for formatting requirements and deadlines. It cannot be stressed enough that there are special circumstances relating to appellate briefs. The rules require specific colors for cover pages, binding parameters, length, number of copies and many other formatting styles.

Additionally, there is a separate appendix for relevant docket entries in the lower court; relevant portions of the pleadings, charges or opinions; the judgment or order appealed; and any other records the party wishes to raise to the court.

Federal appellate court briefs will be read by a three-judge panel. They should be persuasive and remain focused on the errors made by the lower court. The general components of a brief are found in Fed. R. App. P. 28, and listed below. Similar provisions are provided for cross-appeals.

•

Cover page;

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Corporate disclosure statement;

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Identification of the parties;

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Table of contents;

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Table of authorities;

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Jurisdictional statement;

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Statement of the issues presented;

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Statement of the case describing the nature of the case, course of proceedings and disposition below;

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Statement of facts;

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Summary of argument;

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Argument, including contentions, reasoning, citations and relevant record and, for each issue, a concise statement of the standard for review;

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Short conclusion; and

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Certification of compliance.

For a review of various appellate briefs, both Court of Appeals and Supreme Court, visit The United States Department of Justice23.

22 23

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Appellate%20Procedure.pdf (last visited June 1, 2012) http://www.justice.gov/atr/public/appellate/ (last visited June 1, 2012).

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Sample Questions Q:

Parallel citations are described as which of the following choices?

A. a short form of citation B. a citation to the alternate case address in a regional reporter C. the citation to the official reporter D. cited before the official reporter in briefs

A:

(B.) Parallel citations are an additional location of the case. Cases are cited in an official reporter, but additional unofficial publications may carry the same case, such as regional reporters.

Q: Jane Doe sues John Doe for breach of contract. Jane wins, but John files an appeal. The paralegal is instructed to write a letter to Jane transmitting John’s notice of appeal. Which of the following would be the proper “regarding” line for this letter?

A. Re: Jane Doe, Plaintiff v. John Doe, Defendant B. Re: John Doe, Appellee v. Jane Doe, Appellant C. In Re: John Doe, Appellant v. Jane Doe, Appellee D. Re: John Doe, Appellant v. Jane Doe, Appellee A:

(D.) This format properly identifies John as the Appellant and Jane as the Appellee, making this the correct answer.

Q:

Which of the following are common, Internet keyword search terms?

A. and, but, or, nor, for B. and, but, or, to, for C. AND, NOT, OR D. AND, NOT, OR, NEAR

A:

(C.) These terms are commonly used for Internet searching.

Q:

What does the acronym IRAC stand for?

A. issue, rationale, analysis, conclusion B. issue, rule, argument, conclusion C. issue, rule, analysis, conclusion D. issue, rule, assignment of error, conclusion

A:

(C.) It is important to keep these keep terms in mind when performing your legal analysis. An IRAC 106

should be objective. It must include the rule of law in question; it would not be argumentative.

Q:

When quoting directly from a court’s opinion, omitted words are identified by which of the following?

A. brackets B. dashes C. periods D. ellipsis

A:

Q:

(D.) An ellipsis is a sPACE® breaker indicating that words have been omitted, which appears as three periods ….

Which of the following are the publications that contain statements about the law?

A. Primary Authorities B. Secondary Authorities C Periodical Authorities D. Directories

A:

Q:

(A.) A primary authority is a term used in legal research to refer to statements of law that are binding upon the courts, government, and individuals. Primary authority is usually in the form of a document that establishes the law, and if no document exists, is a legal opinion of a court.

Which of the following is the reporter for the United States Circuit Courts of Appeal?

A. United States Reporter B. Federal Reporter C. Federal Supplement D. Corpus Juris Secundum A:

(B.) It is abbreviated “F” and due to the large number of cases included in the Federal Reporter, it is now in its third series. The second and third series of the Federal Reporter are “F.2d” and “F.3d” respectively.

Q:

What is the official reporter for the United States Supreme Court?

A. Federal Reporter B. Federal Supplement C. United States Reports D. None of the Above

A:

(C.) The United States Reports, abbreviated U.S., is the only official reporter for the United States Supreme Court and is published by the U.S. Government Printing Office and commissioned by Congress.

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Domain 01: Paralegal Practice LAW OFFICE ADMINISTRATION, COMMUNICATION, AND LAW OFFICE TECHNOLOGY Communication A brief history of communication in law is that Latin was used prior to the Norman Conquest of England in 1066 even though English was spoken by both aristocrats and commoners. The French language prevailed for a time thereafter, although English survived amongst the population. In took until the 14th century for the Crown to decree that oral pleadings should be in English.

Although written pleadings were not required to be in English until the early 17th Century, lawyers going back to 16th Century England were paid by the length of documents, when use of the words hereinafter, heretofore, thereinafter, theretofore, whereafter and wherefore became popular. Fast forward to 1972, when President Nixon decreed that the Federal Register be written in layman’s terms and 1998, when the Securities and Exchange Commission issued its [A] Plain English Handbook, How to Create Clear SEC Disclosure Documents. The trend continues, with President Obama’s signing of the Plain Writing Act of 2010, requiring the use of plain language in every applicable document issued or revised by a federal agency.

Plain English in legal communications is here to stay. The Federal Rules of Appellate Procedure were clarified in 1998*, as well as the Federal Rules of Criminal Procedure in 2002*. Additionally, in 2007*, the Federal Rules of Civil Procedure were completely rewritten to be more simple and clear, and the Federal Rules of Evidence were clarified in 2011.24 Effective Communication Techniques “The problem with communication is the illusion that is has occurred.” ~ George Bernard Shaw There are four methods of communication: written, verbal, non-verbal and visual. No one gets it right 100% of the time; effective communication is a skill that should continually evolve throughout your career, keeping up with rule changes and learning through any mistakes. That being said, responsible paralegals will make every effort to communicate clearly and ethically in all forms of communication.

Remember that the paralegal is a representative of the attorney and the employer, so how your communications are perceived is a reflection of not only your personal integrity, but also that of your employer.

Rules guiding paralegal communications fall under the American Bar Association (ABA) Model Rules of Professional Conduct. Responsibilities Regarding Nonlawyer Assistants, “the [paralegal’s] conduct is compatible with the professional obligations of the lawyer.” See ABA Model Rule 5.325, Links to individual state and local rules of professional conduct, which also apply to paralegals.

The ABA also has Model Guidelines for the Utilization of Paralegal Services; which, although directed to attorneys, are relevant in routine paralegal practice. Guideline 4 specifies that it be made

24

Federal Plain Language Guidelines are available at https://www.plainlanguage.gov/ (last visited July 20, 2019). https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_3_responsibilities_r egarding_nonlawyer_assistant.html (last visited July 20, 2019).

25

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clear to clients, courts and other lawyers that the paralegal is not authorized to practice law. See ABA Model Guideline 426.

Guideline 5 states, “A lawyer may identify paralegals by name and title on the lawyer’s letterhead and on business cards...” and goes on to explain “(l)istings must make it clear when the listed person is a nonlawyer.” See ABA Model Guideline 527. A simple rule of thumb is if your name is on the employer’s stationery, it must identify you as a paralegal; and, if your name is not on the letterhead, then put “Paralegal” after your name: Very truly yours, JANE DOE Paralegal Correct usage of your future CRP™ credential – once NFPA has notified you that you passed the exam – includes any of the following: CRP™; or CORE Registered Paralegal™ A note about using paralegal credentials. Whether on employer letterhead, in a signature block or on a firm’s website;, and regardless of whether the credentials are awarded by NFPA, a local paralegal association or a state entity; be sure you are permitted to use the credentials by your employer and/or jurisdiction and use the exact credential language authorized by the issuing organization.

At the time of this writing, the correct usage of your future PCCE®® credential – once NFPA has notified you that you passed the exam – includes any of the following: CRP™ or CORE Registered Paralegal™ However, NFPA will provide the appropriate licensing and use of the CRP credentials to those candidates who successfully pass the PCCE®®. Comprehensive rules written by paralegals for paralegals were established by the National Federation of Paralegal Associations, Inc. in 1993. See NFPA Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement28.

Written Communication Some people communicate more effectively in writing than orally and vice versa. One benefit of the plain English movement is permission to write as though speaking, which, conceivably, makes the task easier for both writer and reader. Aside from the purpose of a written communication, the most important thing to consider before beginning to write is the recipient whether writing a memo or drafting a brief for your attorney or writing a letter to the client, the

26

https://www.osbplf.org/assets/forms/pdfs//ABA%20Model%20Guidelines%20for%20Utilization%20of%20Paralegal%20Services.pdf (last visited July 20, 2019).

27 https://www.osbplf.org/assets/forms/pdfs//ABA%20Model%20Guidelines%20for%20Utilization%20of%20Paralegal%20Services.pdf and NFPA Model Code 1.7 at https://www.paralegals.org/files/Model_Code_of_Ethics_09_06_rev12-9-14.pdf (last visited July 20, 2019) 28 https://www.paralegals.org/files/Model_Code_of_Ethics_09_06_rev12-9-14.pdf (last visited July 20, 2019).

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opposing attorney or the court. Determining the audience is your outline for content, level and style.

Verbal Communication As with the written word, verbal communication should be clear and concise. Some paralegals speak with clients, vendors and court staff more frequently than with attorneys. While this may seem like common sense, it is imperative to enunciate plainly and distinctly when speaking.

Likewise, paralegals who do not understand what is being said (e.g., name pronunciation, instruction), should not hesitate to ask for clarification.

Be sure to take into consideration that cultural, intellectual and/or socioeconomic differences may come into play with some clients who may not realize the difference between a paralegal and an attorney, especially when the paralegal is conveying a message from the attorney. Most important of all is to clarify your position as a non-attorney, and to reiterate that clarification as needed throughout the attorney’s representation. See Guideline 4, ABA Model Guidelines for the Utilization of Paralegal Services29; see also Canons 1.3 and 1.7, NFPA Model Code of Ethics and Professional Responsibility31.

One principle of effective, verbal communication - with clients, lawyers, coworkers, vendors and anyone with whom the paralegal comes into contact - is to recap what has been said or decided to ensure that both your and the other person’s understanding of the next step is identical. Another key principle is to remain silent when asked for a legal opinion or advice, other than relaying that the request will be conveyed to the attorney. Lastly, it is essential to be a good listener and to remain focused on what is being communicated in order to accurately convey that communication back to the legal team.

When communicating with the attorney, try to save all of your questions for one time; try not to interrupt them every single time a new question comes up, unless it cannot be avoided. The same applies for communicating with the client and any witnesses, especially expert witnesses.

Non-Verbal Communication Paralegals are professionals whose names are oftentimes listed on an employer’s stationery, website and, certainly, under billable time entries on a client invoice. Whether sitting at the counsel table, elsewhere in the courtroom or in a client or staff meeting, the paralegal must be engaged at all times, while maintaining control over their physical reactions. Avoid eye rolling, shaking of the head or showing any negative facial expressions. In addition, use of personal electronic devices during one of these events - unless for work or emergency purposes - is ill advised and frowned upon.

Without uttering a single word, a paralegal’s appearance can speak volumes. Paralegals must act and dress the part of the professional at all times with a well-kept appearance, wearing appropriate business attire for court and settings that are more formal and well-maintained business casual attire for less formal interactions and casual Fridays. Flip flops and ripped jeans should be avoided.

29

https://www.osbplf.org/assets/forms/pdfs/ABA%20Model%20Guidelines%20for%20Utilization%20of%20Paralegal%20Services.pdf https://www.paralegals.org/files/Model_Code_of_Ethics_09_06_rev12-9-14.pdf

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31

Most importantly, courtesy, politeness and manners speak volumes about the professionalism of an individual. Some examples: avoid chewing or popping gum during meetings, greet individuals with a respectful handshake and good eye contact, and be sure to avoid the use of curse words or slang.

Visual Communication We have become a visual society. Research supports the idea that visual communication is more effective than verbal communication alone. Juries have come to expect sleek trial presentations, which are easily created with trial presentation software discussed previously. The goal of effective, visual communication, even with a PowerPoint presentation, a day-in-the-life video or the old-fashioned trial blowup, is to present relevant information in an interesting format that is easy to absorb. However, just because two forms of media are available does not mean both should be used.

Cost Benefit Analysis Paralegals should also apprise the attorney if the cost could outweigh the benefit of certain presentations, especially if the project must be outsourced. For sharing a visual presentation with the client or a witness, if they do not have compatible software or a way of reviewing your visual aid, the value is lost. In-house options, such as PowerPoints, Excel Spreadsheets and graphs and charts can readily be converted to .pdf format. Attorneys rely on their paralegals to recommend the most prudent options for delivering the information, with supplemental visual aids that help individuals retain the information being conveyed.

Electronic Communication With developing case law and inconsistent local rules, The Federal Rules of Civil Procedure were amended in 2006 to clarify the rules for retrieving, saving and producing electronically stored information (ESI) during, and in anticipation of, litigation, which remain in effect today. See EDiscovery Section contained in the Litigation Chapter for a complex discussion on this topic30.

In 1996, the National Federation of Paralegal Associations addressed ethical implications concerning the unauthorized practice of law related to paralegals communicating in cybersPACE® with an Opinion Statement, which states that a paralegal’s title and geographic location should be disclosed in each cyber communication to avoid any misunderstanding or misconception related to the paralegal’s function or jurisdiction of the communication. The Opinion also suggests use of a disclaimer on paralegal emails to clients stating that nothing therein should be construed as a legal opinion. See NFPA Informal Ethics and Disciplinary Opinion No. 96-231.

Remember that all state rules of professional conduct prohibit the unauthorized practice of law (UPL).

Electronic communications should always include the paralegal title. See NFPA Model Code 1.732. If a paralegal is relaying information from the attorney (whether by voice mail or e-mail), always preface the message with “Attorney A asked me to relay to you...”

30

Fed. R. Civ. P. 34 and 37 (October 2018); https://www.law.cornell.edu/rules/frcp/rule_34.

31

https://www.paralegals.org/files/Ethics_Opinion_96_02_cybersPACE®_UPL.pdf (last visited July 20, 2019); see also NFPA Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement at Canon 6, available at https://www.paralegals.org/files/Model_Code_of_Ethics_09_06_rev12-914.pdf (last visited July 20, 2019).

32

https://www.paralegals.org/files/Model_Code_of_Ethics_09_06_rev12-9-14.pdf (last visited July 20, 2019).

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Competent paralegals will always be in compliance with the communications provisions of the NFPA Model Code of Ethics and the ABA’s Model Guidelines for the Utilization of Paralegals. Further, paralegals should be familiar with ethics and advisory opinions concerning this topic, as well as the Federal Rules of Civil Procedure affecting electronic communications.

Electronic Mail (email) Laws and Rules Concerning Email The law is constantly changing; U.S. laws concerning email have not been as rapid. The Electronic Communications Privacy Act of 1986 protects wire, oral and electronic communications while in transit (Title I), along with communications held in electronic storage (Title II, a/k/a Stored Communications Act). 33 While there are federal email encryption laws in force for financial and medical records, there are none to date covering email transmission of personal client information in the legal arena. While some states have enacted encryption laws to avoid breaching the duty of confidentiality, paralegal duties fall under state professional rules of conduct, which follow Rule 1.6 of the ABA Model Rules of Professional Conduct34, which state that lawyers have an obligation to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

If your employer’s data is cloud hosted with a reputable vendor, data is most likely encrypted, as it enters and leaves your employer’s server(s). For e-mail, some employers choose to have all outgoing e-mail encrypted automatically, while some leave it as a user choice (hitting the “Encrypt” or lock image button in Outlook. Whenever sending an e-mail or document with sensitive client information (see below), it is good practice to make sure that e-mail is encrypted.

While California was the first state to pass a privacy protection act in 2003, the most recent is New York’s 2019 long debated Stop Hacks and Improve Electronic Data Security Act (SHIELD Act)35, enacting affirmative data obligations on companies that expose data of New York citizens.

While this legislation was proposed in 2017 after the infamous Equifax data breach36, businesses in New York, law firms who house personally identifiable [client] information (PII) should be aware of this provision: Any person or business which [conducts business in New York state, and which] owns or licenses computerized data which includes private information shall disclose any breach of the security of the system following discovery or notification of the breach in the security of the system to any resident of New York state whose private information was, or is reasonably believed to have been, ACCESSED OR acquired by a person without valid authorization.

What constitutes a data breach?

Personal Information Definition. An individual’s first name or first initial and last name in combination with and linked to any one or more of the following data elements when the data elements are not encrypted or redacted: 33

Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510–2522, is available at https://www.justice.gov/sites/default/files/jmd/legacy/2013/10/27/cr-h4039-47-1986.pdf (last visited July 20, 2019).

34 https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/ 35

https://www.nysenate.gov/legislation/bills/2019/S5575

36

https://www.forbes.com/sites/leemathews/2017/09/07/equifax-data-breach-impacts-143-million-americans/#3a75f792356f

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•

Social Security Number;

•

Driver license number or state identification card number issued in lieu of a driver license; or

•

Account number or credit card number or debit card number in combination with any required security code, access code or password that would permit access to an individual’s financial account.

Given the Federal Rules of Civil Procedure 2018 Privacy Protection Rule, which most states have adopted and ABA Model Rule 1.6 (see above), it makes sense to encrypt all e-mail containing PII data.

The U.S. Health Insurance Portability and Accountability Act of 1996 (HIPAA) established guidelines limited to protected health information (PHI), identified as any demographic information that can be used to identify a patient, including name, date of birth, address, financial information, social security number, full facial photo or insurance information.

According to Thomson Reuters: The definition of business associate under HIPAA’s regulations expressly includes attorneys who perform legal services for a HIPAA-covered entity (for example, a health plan), if the attorneys are not members of the covered entity’s workforce. For purposes of HIPAA’s privacy and security requirements, the definition applies if the legal services provided involve disclosure of PHI from the covered entity (or from another business associate) to the attorney.

In other words, an attorney that does not create, receive, or have access to PHI is not a business associate. For example, an attorney who provides legal services to the plan in reviewing a benefits claim would likely be a business associate if the claim involves PHI. An attorney who is a business associate must comply with HIPAA’s requirements as applicable to business associates (for example, by providing satisfactory assurances to the covered entity that it will safeguard PHI).37 If your employer is subject to compliance, hopefully there are already compliance protocols in place, namely encrypting anything with PHI and making sure vendors who handle data are HIPAA compliant. And if your employer is not subject to HIPAA compliance, yet you deal with PHI, it is good practice to make sure that data – no matter the format - is encrypted.

The European Union’s (EU) General Data Protection Regulation (GDPR) of 2018 is much broader. GDPR covers any data that can be used to directly or indirectly identify a living person and requires “appropriate” measures to protect privacy, which can vary from employer to employer. If your firm has clients or offices overseas and you have identifying data on EU citizens, then your employer is subject to GDPR compliance. While there is no one-size-fits-all compliance checklist, here are some good practices:

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Establish and maintain a data privacy policy that details data handling.

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Conduct regular privacy training.

https://legal.thomsonreuters.com/en/insights/articles/understanding-hipaa-for-law-employers

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Maintain a data privacy breach response plan.

Another area yet to be addressed is third-party access to email, i.e., when a client emails his/her attorney from a work computer or on an employer-provided electronic device. The ABA touched upon inadvertent disclosure through email in 2011 via Formal Opinion 11-45938.

Yet another important item to cover is whether you access your employer’s data on a personal cell, tablet or computer. If a paralegal has access to work emails or documents on their personal cell phone or tablet, they have a duty to protect access to that information by any unauthorized individual. A good rule of thumb is to set your phone to lock within a minute or less, require strong passwords to access the data, or require fingerprint or facial recognition to unlock the device. Additionally, many firms have the ability to compartmentalize client data on personal devices with remote lockdown procedures should the device be lost or compromised. Talk to your IT department about these options and immediately notify your attorney/law firm if your device is lost or stolen.

In 1993, NFPA issued a formal opinion covering the ethical implications concerning client confidentiality with regard to paralegals communicating in cybersPACE®. A pertinent part of that opinion is that electronic communications transmitted via email are not confidential and that client information should not be included in such communications. See NFPA Informal Ethics and Disciplinary Opinion No. 96-139.

Additionally, Canon 1.5 of NFPA’s Model Code of Ethics and Professional Responsibility provides that paralegals shall preserve all confidential client information acquired before, during and after the representation. NFPA interprets this obligation to extend to all forms of communication, including electronic communication in cybersPACE®, e.g., email, listservs, bulletin boards, World Wide Web forms, forums and mailings, Internet Relay Chats, Usenets and/or newsgroups.

Best Practices for Sending Emails •

Business emails are considered correspondence, albeit more instantaneous, just as if they were on your firm’s stationery. All writing, spelling and grammar rules apply.

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Do not write to recipients as though writing to a friend or a buddy.

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Always include a subject line that accurately reflects the topic of the email. Use this to your advantage to get your email acknowledged more quickly and/or to help prioritize the email for the recipient. For example, when a decision is needed by the end of the day, the subject line may read: “Smith MIL - input deadline today 4 p.m. - filing deadline.”

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The way we open and close emails can be just as important as the content. o

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While a regular salutation such as “Dear Mr. Smith” is recommended, a more colloquial greeting is acceptable, such as “Hi Mr. Smith.” Do not use the client’s first name unless given permission to do so. “Good morning” or “Good afternoon” are additional options (being mindful of individuals’ preferred pronouns).

https://www.technethics.com/american-bar-association-formal-opinion-11-459/ https://www.paralegals.org/files/Ethics_Opinion_96_01_cybersPACE®.pdf (last visited July 20, 2019)

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All emails should include a complimentary closing, such as “sincerely,” or “thank you.” While the use of “best,” an abbreviated “best regards,” has become popular and is considered acceptable, the use of closings such as and “cheers,” “take care” (too informal) and “yours truly” (too emotional or romantic) are not.

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When composing a new message, do not fill in the name of the recipient until the very end. First, run a spell-check, make sure any attachment is actually attached (and is the correct attachment**, and is legible). Many attachments contain metadata, a term with which all paralegals should be familiar. For instance, if your lawyer-client drafts most of the case documents, information about the creator of the documents is embedded in the document (but may not be visible to the casual user). This applies to word processing documents, PDF documents, etc. When filing a claim for attorneys’ fees, the fees could be denied if the opposing party proves through metadata that the author was not your attorney. Using a metadata scrubber - which can be incorporated into your email program and set to popup with every email containing an attachment - before sending the document is a quick and inexpensive way to avoid a metadata headache later.

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Be careful when selecting “reply” or “reply to all.” Think about whether the entire group really needs to see your response, or just the original sender.

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Blind-copying someone on an email is generally done as a courtesy; when blind-copied on an email, be very careful not to select “reply to all.” Any reply should be shared with the sender only.

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Email messages are no different than voice mail messages; if there is no time to respond, acknowledge receipt (if the person did not include a “read receipt”) and give that person the courtesy of letting them know when to expect a response. Consider using the “save” or “save as draft” function or composing the guts of an email in a word processing document, so content is not lost if there is a power outage or computer glitch.

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Avoid sending “flame emails,” which are angry or inflammatory emails sent when emotions are high. Instead, leave the message in draft form and come back to it when calmness has returned, rereading the draft for tone and content. If in doubt, have another professional in the office review prior to sending.

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Most programs have an automatic spell-check feature; do not turn that off or stop the feature. Always run a full spell-check before sending a business email.

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If your mother/father will be mortified by your communication or if it winds up as the lead story on tomorrow’s headline news, do not write it, especially via email.

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Although there are claw back provisions in Fed. R. Civ. P. 26(b)(5)(B) and Fed. R. Evid.

503, take the extra step of making sure the correct document will be transmitted in the first place.

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Short paragraphs are recommended as they are easier to skim.

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Clear, concise and to the point - as in a formal letter - still applies. Do not overwrite, overstate or over-explain.

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Do not use slang, such as “nite” for “night” and “pleez” for “please.”

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•

Though emoticons have begun showing up in court pleadings, avoid the use of emoticons or emojis in business communications such as ☺ or “):.” Also, refrain from CAPITALIZATION (considered screaming in emails) or “!!!” and “???” (may be perceived as aggression in emails).

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Take a moment to actually read your email before sending; when not sure about something, switch to another task for a while or ask for a colleague’s opinion.

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“You’ve got mail” is an understatement; hundreds daily are more like it, especially for some, including your recipient. Send email sparingly and avoid forgetting something and having to send a second email to correct the first.

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For vacations and extended periods out of the office, be sure to set up an autoreply to let senders know that their message may not be seen until your return.

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A paralegal’s title and contact information must be included within the signature of the email. See NFPA Model Code 1.740.

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A confidentiality clause must be included.

For Tips on Use of Personal Email Within a Business Environment see article by Judith Kallos Titled Type to others as you would have them type unto you41.

There are several, helpful websites that offer email etiquette (a/k/a “netiquette”) tips42.

Lastly, there are groups that connect through email listservs. A listserv is a forum for distributing information to a particular group via email. Individuals subscribe to a listserv for receiving and distributing information limited to that group. For example, a bar association’s various committees may have separate listservs for various sections (e.g., family, worker’s comp and business law) to facilitate the sharing and solicitation of information limited to those who elect to join the listserv. Listserv membership is not generally automatic, and each organization has its own rules about what can and cannot be communicated through its listservs. Two important things to keep in mind before posting anything on a listserv: 1) check to see if there are guidelines to abide by (and do not violate them); and 2) do not pose any question that could violate antitrust laws, which could subject the organization running the listserv to a hefty fine. This is a great guide from the Association of Legal Administrators43.

Social Media Social Media is a blanket term encompassing forms of electronic communication through which users create online communities to share information, ideas, personal messages and other content, such as videos. Like email, social media provides an outlet for instantaneously sharing thoughts, some of which are irretrievable once posted.

Paralegals must be extremely careful when submitting posts on social media sites, not only with basics such a punctuation and grammar, but also to avoid offering legal opinions and the unauthorized 40

https://www.paralegals.org/files/Model_Code_of_Ethics_09_06_rev12-9-14.pdf https://www.netmanners.com/ 42 See http://101emailetiquettetips.com/ and https://www.netmanners.com/.

43 https://www.alanet.org/docs/default-source/governance-documents/antitrust-guide.pdf?sfvrsn=0.pdf?sfvrsn=0 41

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practice of law, or breaching client confidentiality. While it should go without saying that paralegals should never post anything about a client, their employer or any coworker, this is the section on communications; so, we will say: “Do not ever make the mistake of posting a comment which you think is private.” Some employers subscribe to RSS feeds – the equivalent of a personal news wire service that streams specified content - which they set up to automatically transmit Web postings mentioning the company, which can include, depending on your privacy settings, social media site postings.

With that in mind, social networking should not be ignored on a professional level. There are hundreds of active social media networking sites44. The most popular are summarized below. And, if you are against creating an account on any of these sites below are “responsible observation” links, where you can see publicly available information without creating an account.

“Remember not only to say the right thing in the right place, but far more difficult still, to leave unsaid the wrong thing at the tempting moment.” ~ Benjamin Franklin LinkedIn® LinkedIn launched in 2003 to connect the world’s professionals for information, productivity and success. LinkedIn is the world’s largest professional network, with 610 million members in over 200 countries and territories as of July 20, 2019.

This site allows for connecting to other individuals and businesses. The user controls sending and accepting invitations to “link.” The general rule of thumb is to only accept requests from known sources. The site is free for a basic membership with options for paid memberships with more robust user options. An account may be set up with just an email address and password. LinkedIn profiles may be located without establishing an account by typing a person’s name, followed by “LinkedIn” into any search engine, although your ability to view a full listing may be limited.

Of greater importance is that LinkedIn allows individuals and businesses to list their professional background and accomplishments in the form of an online résumé. Users may also request other members to make “recommendations,” which are used to reinforce the user’s online, professional identity. Potential employers and employment recruiters are known to peruse LinkedIn profiles for candidates.

One of the best, free features is the ability to connect to groups of interest, such as the National Federation of Paralegal Associations, Inc.45. Most LinkedIn groups are established by “invitation only,” meaning, the user must be accepted into the group. This is a great way to keep in touch with like-minded members, as well as current topics. Many pertinent legal discussions are started within various LinkedIn groups. The paralegal may “up” his/her online visibility by discreetly commenting on such a group discussion with intelligent and verifiable information. For some, the best benefit is that employers frequently post job openings on LinkedIn group sites.

For more information, see “20 Ways to Use LinkedIn Productively” at Web Worker Daily via GigaOM46.

44

https://en.wikipedia.org/wiki/List_of_social_networking_websites https://www.linkedin.com/groups?gid=1072727 46 https://gigaom.com/2007/06/15/20-ways-to-use-linkedin-productively/ (last visited July 20, 2019). See also “100+ Ways to Use LinkedIn,” at Linked Intelligence, available at https://linkedintelligence.com/smart-ways-to-use-linkedin/ (last visited July 20, 2019).

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Facebook This site’s mission is “to give people the power to share and make the world more open and connected.” Facebook started in 2004 and was initially limited to Harvard students. Today, individuals, organizations (such as NFPA’s Facebook page47 and even government organizations have a Facebook page. Facebook accounts are available in 110 languages and are at 2.38 billion as of March, 2019.

Facebook accounts are free. An account is needed to search for anyone with a private profile.

Users with public profiles may be found on Facebook by typing their name + Facebook into any search engine, although full access may be limited depending on the user’s settings48.

MysPACE® MysPACE® launched in 2003 as a place for people to create a Web page with a public profile to meet new friends. In 2012, it had over 30 million users in 161 countries. Current statistics are unavailable. A recent New York Times article reports that MysPACE® had lost years’ of data prior to 201649. MysPACE® accounts are free; an account is not needed to search for people on MysPACE®50, and type in a name in the “Search People” search bar. Facebook users can login to MysPACE® using their Facebook account.

Google+ Google+ launched in summer 2011. The New York Times declared it as Google’s biggest attempt to rival Facebook as it has retired prior efforts such as Google Buzz and Google Friend Connect.

Accounts are free; an account is not needed to search for people on Google+51 and type a name or company in the “Find People” search bar.

Twitter This social networking site calls itself a “real-time information network which anyone can connect to for the latest on their interests.” Started in 2006, Twitter is available in 47 languages and claims to have over 330 million active users as of March, 2019.

Twitter communication is accomplished by sending messages called Tweets, which are limited to 280 characters each. Some people actively Tweet; others simply follow accounts of users they find interesting. For professionals, the rule of thumb is to limit Tweets to interesting and wellcomposed blurbs of current information. For some, Tweeting is considered a way of marketing.

An account is not needed to view Tweets. Some law employers and paralegal associations Tweet52. To search for Tweets without an account, go to Twitter and enter the handle or name of the individual.53

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http://www.facebook.com/NFPAparalegals http://www.facebook.com/srch.php?ref=ffffc 49 https://www.nytimes.com/2019/03/19/business/mysPACE®-user-data.html (last visited June 20, 2019).

50 https://mysPACE®.com/discover/people 51 http://findpeopleonplus.com/ 52 https://twitter.com/Pepper_Law 53 To search for Tweets without an account, https://twitter.com/search-home.

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Every legal professional should be aware of their own social media visibility (one complaint is that a photo can be posted on Facebook and tagged with a person’s name even though he/she does not have an account). Performing a search on your own name and email accounts should be done periodically.

There is no doubt that social networking is here to stay and will only increase in use, including within the legal arena. As an example, in 2008, an Australian court ruled that Facebook is a valid forum for serving court notices to defendants, which is believed to be the world’s first instance of a legally binding summons posted on a social networking site. Subsequently, courts in New Zealand, Canada and England have permitted service of process via Facebook when defendants cannot be located and served in person54.

Performing social media research regarding defendant whereabouts, activities and assets is permitted, so long as the information is publicly available, you do not “friend” the individual to do so, and no deception is used. A simple Google search can reveal for a treasure trove of information on individuals who have not privatized their social media profiles. If your employer subscribes to LexisNexis® Public Records software or Westlaw’s PeopleMap, you can research additional information.

Another form of social networking is blogging. A blog (a/k/a Weblog) is a writing by an individual or company posted on a personal Web page that is publicly accessible. Blogging is a great way to share your thoughts or expertise on a particular subject.

Paralegals interested in social media may consider approaching their employer’s management to help establish or update free profiles on social media networks such as LinkedIn, JD Supra®, Justia, HubSTREET™, Facebook and Twitter. Some employers invite their paralegals to participate in the employer’s blog. Professional and responsible participation in social media will not only expand the employer’s and the paralegal’s online visibility, but can also demonstrate the paralegal’s interest in the welfare of the employer.

Text Messages Text messages are now used more and more frequently for instant communications. Many attorneys are relying more often on text messages to communicate with their legal team during trials, depositions and other official hearings. That being said, there is no reason not give every activity your undivided consideration, including staff meetings and seminars, meals and driving. Aside from medical emergencies, there is no text or phone communication so urgent to risk either your job or your life, or that of another. If a text is that important, step out of your meeting or pull off the road to give reading and responding your full attention.

When texting for work purposes, take a moment to read the text to make sure that the content makes sense and is accurate, before hitting “send.” Because of employment laws impacting working “off the clock” or “after hours” and overtime pay, it is always good to confirm the employer’s overtime policy in regards to after hours communications. Additionally, texts and phone calls with clients on personal cell phones should be discouraged, as communications more often than not should be through formal communications that include supervision by the attorney to ensure confidentiality and privilege protections, and to avoid the appearance of impropriety, such as the unauthorized practice of law by providing perceived legal advice.

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See https://www.bloomberg.com/news/articles/2011-06-06/facebook-becomes-tool-to-serve-legal-papers-on-those-who-exist-only-online (last visited July 20, 2019)

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When sending photos to yourself or the legal team via text or email - which is sometimes necessary if the paralegal is performing an investigation or technology prohibits transferring files in another manner - avoid sending a copy to your mother/father, sister/brother, friend, etc. Or, when discussing your day at the dinner table and someone asks to see that photo, just say no. This constitutes a clear breach of client confidentiality.

While it may be tempting to check personal communications - whether it be email, a social network account or even text messages - during business hours, checking one leads to another and yet another, which could significantly impact your productivity and impact relations with the employer. Also, keep in mind that any electronic communication accessed via employer-owned equipment over the employer’s Internet service may be accessible by the employer. There are several cases involving this issue and the employee’s expectation of privacy within a personal, password protected account 55.

As discussed previously (but is worth repeating), with regardless of the type of electronic communication, Fed. R. Civ. P. 34 provides for the production of ESI, including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data… stored in any medium…”

Fed. R. Civ. P. 26 also addresses the preservation of ESI. Paralegals should be mindful of electronic communications prior to being sent rather than worrying what communications may be subject to a litigation hold or trial exhibit after the fact. A more thorough discussion of this topic is addressed in the Litigation Chapter.

Legal Fact-Finding Please see the Legal Research and Writing Section for a more detailed description of this issue, however we briefly discuss the issue here. Journalists are taught that all news stories should answer “who, what, when, where, why and how.” The same applies to paralegal practice, whether calendaring deadlines, investigating any aspects of a case and interviewing witnesses.

A good, first step to fact-finding is to make a list of known information, unknown information and questionable information, i.e., information that must be authenticated. Many case management software programs make it easy to organize information at the outset and throughout the representation discussed previously. Then, formulate a plan for gathering the remaining information and discuss it with your attorney.

To fill in the blanks, the paralegal must evaluate various sources of information, including people, places and things. The client is the first source of information, followed by witnesses, expert witnesses, document review and research on issues or individuals. Places may involve visiting the scene of the crime/accident/incident at varying times of the day or night, including the time of the event. Do not forget your camera.

Clients As for documents and things, depending on the type of case, they may consist of police reports, medical records, employment records, tax records, criminal records and prior lawsuit records. Review the file to see what exists and what is needed; check with the client in case they already have these records. What is needed will depend on the type of case. For instance, if the weather had an effect, reliable weather data should be included.

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https://www.hrexaminer.com/employee-privacy-what-can-employers-monitor/ (last visited July 20, 2019)

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Other Parties Reliable fact-finding includes not only gathering information related to your client and the event, but also includes information on the opposing party, whether an individual or company, and witnesses.

Fortunately, there is a plethora of information available at “banking, bankruptcy and beyond”; unfortunately, obtaining precise information often requires precise search requests. But don’t overthink the search terms; sometimes a simplified search yields better results.

Browsers – Think of a Web browser as car; it helps you get to different places. Chrome (PC only), Firefox, Edge, Internet Explorer (PC only), Opera and Safari (Mac only) are popular browsers. Keep in mind that, for e-filing, courts may dictate which browsers are compatible with their specific platform.

Search Engines – Think of a search engine as a map; it helps you get to places without knowing the address. Search engines reside within browsers. We all know that Bing, Google, Mozilla and Yahoo! are popular search engines, but have you heard of Dogpile (which searches Bing, Google and Yahoo!

Simultaneously; DuckDuckGo (which guarantees that user information, including search history, is neither shared nor saved); and Yippy (which searches the Deep Web for obscure information)? There are countless others not listed.

When searching, if your first keyword search results in too many hits, try narrowing the results by adding quotation marks around the word(s). As an example, try “expert witness.” Use “AND” to connect words that must appear together. Try “expert witness AND plaintiff” or “expert witness + plaintiff.” To eliminate certain factors, use “NOT.” Try “expert witness AND elevator NOT defendant” or “expert witness + elevator - defendant.” Use “OR” if only one of the terms is needed, such as “elevator” OR escalator. Use asterisks as a substitute for letters that may vary. Try “expert witness AND elevator AND de**” to include defense, Delaware and design experts. Try using parentheses to combine your keyword search with another, such as “(elevator OR escalator OR Otis) AND lawsuit.”

To gather reliable data, befriend a local librarian as they are trained to analyze the validity of information. In addition, thousands of frequently asked reference questions have been categorized by librarians at “ipl2” or “Internet Public Library 2,” which combines the former Librarian’s Internet Index and original Internet Public Library56.

Do not forget about the Library of Congress57. The U.S. Library of Congress remains the largest library in the world, with the world’s largest collection of legal materials, films, maps… The Library houses over 168 million items, which can be searched by format (e.g., book, legislation, map, periodical, newspaper, software, Web page) and topic, and may be sorted by date, relevance or title.

The Library of Congress hosts the Law Library of Congress, featuring a “Databases & eResources” directory58.

Government websites, in general, are credible sources of information, as are association sites (ABA, AMA, NFPA, etc.). Keep in mind that blogs are individual opinions and should not be cited as legal research sources. Also, a note about Wikipedia: Few researchers trust this site and “under no circumstances cite it as a source of evidence…” Wikipedia is not considered a reliable source in and

56 57

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https://www.loc.gov/item/2003556257/ (last visited July 20, 2019) https://www.loc.gov/ (last visited July 20, 2019) http://www.loc.gov/law/find/databases.php (last visited July 20, 2019)

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of itself, although the list of references contained therein may lead to one. Do not overlook these potential sources.

For lawsuits involving corporations and businesses, state corporation databases and the U.S. Securities and Exchange Commission59 should be researched, as well as the company’s actual website. Running both individual and company names on the social media sites listed above is another paralegal investigative tool.

Be sure to keep track of each site visited. A good way to do this is to cut and paste the URL into a research memo. The organized paralegal will not rely on memory alone; besides, everyone has experienced visiting a website one day, only to have it unavailable the next. While this may be the sign of an unreliable source, sometimes it is simply the result of the company’s relocating their domain and the forward from the old address is temporarily unavailable. Cut and paste or save to favorites to avoid losing track of information gathered.

Some paralegals are charged with finding potential expert witnesses. Many curricula vitae (a/k/a CV’s or expert résumés) are available online, including a list of cases where the expert has assisted.

Narrow the expert pool by similarities with your case. Contact the attorneys in cases where the expert has served for information on the expert’s demeanor and reliability. Likewise, with the opposing party’s expert(s), investigate their credentials and licensing. Review their expert’s CV with your attorney to determine what may be investigated.

The paralegal serves as the eyes and ears of the attorney/legal team. No stone should be left unturned and all relevant detail should be reported back to the team. Complete research involves answering not only your own questions, but also anticipating and answering the attorney’s questions.

All alleged facts should be verified, including those from your client. Sticking to reliable sources and properly documenting the source(s) of each fact ensures the integrity of the information presented.

Organizing those facts will make it easier for the attorney to determine whether more fact-finding is warranted.

Interviewing, Including Evaluating Responses If your boss has already met with the client, be sure to review the attorney notes, along with the remainder of the file, before structuring the next interview. For third-party witness interviews, the same rules apply. Find out everything possible about the person ahead of time and prepare a comprehensive list of questions.

Avoid yes/no inquiries; ask open-ended questions that will lead to dialogue. Again, who, what, when, where, why and how will come into play. Depending on the witness, the paralegal’s queries should explore in detail:

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who the person is (name, contact information, personal information, employment information);

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what the person saw or knows (details of the incident) and whether they have any evidence (e.g., photos);

https://www.sec.gov/ (last visited July 20, 2019)

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when the event occurred (date, time);

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where the event occurred and the position of the witness at that time (if applicable, a report or drawing may help);

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why the event occurred (the interviewee’s observation or opinion); and

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how the event occurred (contributing factors such as weather or time of day).

Be sure to review your questions with the attorney before the interview, as well as what to tell the witness about the next step.

Again, do not make the mistake of calling a witness by their first name unless invited to do so. In addition, many states and municipalities have protections for LGBTQIA individuals, including addressing them by their preferred name (not necessarily formal name, such as Mike vs. Michael) and using their preferred pronoun. Don’t assume that someone who presents as a male prefers “he” or that someone who presents as female prefers “she.”

Whenever calling a client or witness, including when scheduling the interview, ask whether it is a convenient time to talk. Provide the witness with an estimate of how much time is needed to determine the best day and time when the witness will not be rushed. Decide whether an interpreter will be needed. For client interviews, establish beforehand whether any record releases are needed and have them prepared in advance.

Begin the interview by making sure the witness is comfortable. If recording is preferred by your attorney, ask for permission to do so. Regardless of whether recording is permitted, be sure to take written notes in case of any technological glitches with the recording. Throughout the interview, maintain eye contact whenever possible, taking brief notes as needed.

At the outset, consider thanking the witness for his/her/their time, followed by identifying yourself as a paralegal and describing your role on the legal team. Do not be shy in repeating, as necessary: “I am not permitted to give legal advice, but I would be happy to relay your question to [the attorney].”

Start with easy-to-answer questions, such as the witness’ full name, address and date of birth.

Listen carefully to the interviewee’s responses, both verbal and physical. Do not interrupt and do not try to finish the interviewee’s sentences. Concentrate on each answer, evaluating whether the witness is nervous or able to keep eye contact. Indicate which answers seemed certain and uncertain. Your meeting is an indicator of how the individual will act on the stand if trial testimony becomes necessary. Relaying your perceptions to the attorney will help map out the plan for additional witness preparation.

Do not rely solely on your outline. For example, if the incident involves visual perception, ask about the person’s vision and whether he/she/they wear glasses or contacts. Ask if he/she/they were wearing the glasses or contacts at the time of the incident. If the witness was coming from a party or bar, it is reasonable to ask whether they consumed any alcohol and, if so, how much. Determine with your attorney beforehand whether all witnesses should be asked if, at the time of the incident, they had taken any prescription or over-the-counter medications, such as pain medication, which could arguably impair their perception. Follow up with whether the witness takes such medication regularly and, whether they have a medical marijuana card or use marijuana recreationally. Even if your state does not permit medically approved marijuana use or recreational cannabis use, do not presume that

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the individual does not have a medical card from another state or that they do not recreationally use cannabis.

It is important for the paralegal to remain objective at all times during the interview, regardless their personal opinion and no matter was is asked or said. Give the witness encouragement throughout the interview with positive phrases such as “good,” “that’s great,” “thanks for your detailed response” or “I appreciate your sharing that with me,” etc.

End the interview by thanking the witness for their time and apprising of the next step. Ask if they have any questions and give the witness your business card in case they need to reach you afterward.

Your notes should be typed and completed as soon as possible after the interview. Always include the date, time, place, and participants.

Nuts and Bolts of Written Correspondence The responsible paralegal will keep up with current language rules, which can sometimes be as important as the legal ones. Do not discount the importance of the old-fashioned letter. Studies show that most email is only skimmed. If time is not “of the essence,” the same applies for the old-fashioned thank you note: taking the time to send correspondence by “snail mail” conveys a more sincere appreciation than a quick email or text. Also, with the availability of free, online e-cards - including apps for smart phones - there is no excuse for email-only communications.

After determining your audience, decide the purpose of the letter and what must be accomplished.

Consider how many parts into which the subject should be divided. See also Domain 01: Paralegal Practice - Legal Research and Legal Writing. The goal of your letter should be to connect with the reader, delivering accurate information in an understandable and succinct format.

What is stated is just as important as how the information is relayed. Grammatical and typographical errors are unacceptable. Egregious errors may diminish valid content and may cause a client to refuse payment when billed for your communication. Even the best writers have questions when writing. When not sure of a word, look it up.

Authorities We would not start writing a brief without a rule book, so why leave other professional, legal communication up in the air? Who can be trusted? Yahoo! or Google? The correct response is “neither.” A dictionary should always be handy when writing and editing. Many editors use “Merriam-Webster’s Collegiate Dictionary.” Thanks to the Internet, Merriam-Webster® hosts a free, online dictionary60. This site also includes separate definitions for both English-language learners and kids.

Webopedia™,61 is another free, online dictionary. Webopedia™ provides easily understood definitions in plain language, explaining words, phrases and abbreviations related to computer and Internet technology.

For style and overall grammar guidance, William Strunk, Jr. and E.B. White’s “The Elements of Style” (from E.B. White, of “Charlotte’s Web” fame) should be a staple on everyone’s bookshelf.

Reviews state that this book is a “must” for any writer as one of the basic rules of English ever

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written that is clear and concise. Until 2011, this penning was only available in book form; the latest version is a Kindle-only edition.

“The Chicago Manual of Style Online” is a renowned compilation of typographical rules. Although most information is available for free, full content is available for a nominal, annual fee. “A Pocket Style Manual,” a spiral-bound handbook, covers the basics of “The Chicago Manual of Style,” as well as Modern Language Association (MLA) and American Psychological Association (APA) guidelines.

Common Errors Ampersand The “&” is called an ampersand. The ampersand’s proper use is between proper nouns, such as names (Jack & Jill or Mr. & Mrs. Jones).

Assume v. Presume Both are transitive verbs. Assume means to take for granted or true; Presume is to supposed to be true, without proof.

Asterisk The “*” is called an asterisk. Enough said.

Beside v. Besides Beside is a preposition meaning “next to”; Besides is an adverb meaning “in addition to.”

Can v. May Can is a verb that means “able,” while May is an auxiliary verb that connotes “permission.” cc v. bcc v. pc “Carbon copy” used to be abbreviated at the end of a letter as “cc,” which some have replace with “pc” for “photocopy.” “Blind carbon copy” is no longer used, having been replaced with “bc,” and some even use “ec” for “electronic copy” or “email copy.”

Note that all correspondence to the court must be copied to the opposing party, either counsel-ofrecord or the pro se litigant. Failure to do so results in an ex parte communication. e.g. v. i.e.

Both are always italicized and followed by a comma. Each is an abbreviation for a Latin term; e.g. means “for example,” while i.e. means “that is.” email v. e-mail Merriam-Webster® uses the latter, as does Webopedia™. Although the Federal Rules of Civil Procedure use “e-mail,” this manual has followed Harvard University Press standards, publisher of The Bluebook®, which uses “email.”

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Follow-up vs. Follow up “Follow-up” is used as either a noun or adjective, meaning “the act of following up” (noun) or “done, conducted or administered in the course of following up” (adjective). “Follow up” is a verb meaning “to make contact with or pursue.”

May v. Might “May” is an auxiliary verb used to indicate possibility or probability; the past tense of “may” in this sense is “might,” also an auxiliary verb as the past tense of “may.” “May” is more likely than “might.” A teenager might clean his/her room; he/she/they may be going to the party.

Re: v. In re: “Re:” refers to the “regarding” line of a letter. “In re:” is an abbreviation for “In reference to,” or “In the matter of,” and is generally used in captions where there is no adversary, such as in bankruptcy filings.

That v. Which Both can be used as either a pronoun or adjective. “That” may also be used as a conjunction. A quick way to determine whether “that” or “which” is appropriate is to insert the clause “by the way” before choosing the correct word. If “by the way” makes sense, use “which.”

Toward v. Towards Both are interchangeable when used as adjectives meaning “imminent.” “Toward” may also be used as a preposition meaning “in the direction of” or “not long before.”

Two v. One SPACE® After Periods Two sPACE®s after a period are appropriate when using a typewriter; one sPACE® is appropriate when using a computer. The Chicago Manual of Style recommends one sPACE®, which has been used throughout this manual. website v. Web site This manual follows the rules of Harvard University Press, publisher of The Bluebook, which uses “website.” Merriam-Webster® recommends “Web site,” as does Webopedia™. “Web” stands for “World Wide Web,” and should always be capitalized when used on its own.

Who v. Whom Both are pronouns. Substitute he/she/they; if that fits, choose “who.” Substitute him/her/them; if that fits, choose “whom.”

Do not forget to run spelling and grammar checks before printing; do not run the checks while multitasking. While a computer’s spelling and grammar checks are useful tools, they are not foolproof; the recommendations are not always accurate. Nothing replaces a paper review by the human eye. Attorneys, especially, trust that paralegals are generating professional and error-free documents and letters each time.

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Ethics in Communication The ethical paralegal will not “make a false statement of material fact or… fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client…” See ABA Model Rule of Professional Conduct 4.162.

The ethical paralegal will avoid plagiarism in communication by quoting and crediting sources. They will also ask permission to use sources whenever necessary, which can be provided surprisingly quick in this day and age of instant communication. Most authors/publications will grant reprint rights and require them only to track where their work is being cited.

The ethical paralegal will keep meticulous time records, only billing the appropriate client for the exact task and the precise time it took to complete that task. They will maintain equally meticulous personal time records to avoid any question of dishonesty.

The ethical paralegal will make every effort to protect client confidentiality, from not sharing information in public places (e.g., hallway, elevator, common areas of the law office, public transportation) to not sharing information with any third parties, including by accident. For example, reading a transcript on public transportation could result in a breach of confidentiality if someone who is standing is reading along.

The ethical paralegal will know what their employer’s policy is on accepting gifts from clients.

Generally, accepting gifts during the representation is a “no-no” as this could convey undue influence. Be sure to inform your boss of any gift or offer of a gift. See NFPA article on “Paralegals Accepting Gifts.”63.

A common theme of this manual is to work competently, efficiently, responsibly and ethically at all times, including when it comes to overall case management and communication. Sometimes that means asking for help, sometimes that means asking for more computer application training. Most software companies offer free online tutorials or, if your employer subscribes to the software, they generally have a representative who will be very happy to assist you. Some even offer training completion certificates, which can be helpful to take and list on your resume. Never be afraid to ask questions or own up to mistakes. Implementing the information in this chapter into your workday routine will provide the resources necessary to become an invaluable member of your team.

The law, especially with regard to technology and communications, is constantly evolving. The Competent, Organized, Responsible and Ethical paralegal is one who will always remain at the forefront of these changes through both independent study and continuing legal education.

Legal Technology Case Management Systems Case management software includes software programs designed to assist paralegals in keeping all the elements of the case organized. Some examples of software programs include: CaseMap™, TextMap™ - both LexisNexis® products; LiveNote Stream™, a Thompson Reuters product; DepoView™, TimelineXpress – both iPro Tech, Inc. products; and, TrialPad™, TranscriptPad™,

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DocReviewPad™ – by Saurian Communications. Most case management software programs operate similarly; CaseMap, TextMap and LiveNote Stream are used as examples.

CaseMap is used in conjunction with TextMap. When a case is first opened, a CaseMap file is created. Keep in mind that if the CaseMap file is to be shared with others in the firm, it must be created in a shared environment or shared drive within your office’s network. Case management software is sometimes stored on an outside of the office’s network in the cloud. Simply put, this means that everyone who needs access to the CaseMap file must also have access to where the CaseMap file is created, whether stored in the cloud or on an onsite shared drive.

Regardless of whether software is hosted in-house or in the cloud, the procedure to open and maintain a case management program is the same. Once a case is opened, it is always a good idea to create the case on the management software at the same time. Populating case management software at the beginning of the case and keeping it updated continuously is always the best practice.

As plaintiffs, defendants, facts and documents are identified, they should be added to the case management software immediately. If case management software is not continually updated, it is practically useless. The whole idea behind case management software is to have all case information at your fingertips and the fingertips of others who are assigned to the case. It is reasonable for another attorney or paralegal accessing case management software to assume that it has been updated with the latest case information.

Although each software program is different, they basically operate in the same way. Litigants are identified and described, counsel in the case is identified, facts are identified; and, if there are supporting documents, they are also loaded into the case management software for quick access.

When working with deposition management software like TextMap or LiveNote Stream, each deposition transcript is loaded into the software program. Once loaded, the notes of testimony are accessible by anyone working on the case. Deposition management software allows anyone to make notes directly on the transcript, to highlight important facts. CaseMap and TextMap, working in conjunction with each other, associate certain testimony in a deposition to a particular plaintiff, defendant or fact in the case.

Most court reporting services now offer online databases to house depositions and exhibits, in addition to providing deposition transcripts in a variety of file formats which are compatible with your case management software. Using these files, any deposition or exhibit can easily be uploaded into your firm’s particular deposition management software program. If the option exists in your software program, be sure to link all exhibits to the deposition. This will allow the option of clicking on a link within the deposition that will instantly open the exhibit in a new window.

Increasingly there are transcript review apps for tablets and smartphones. One such app is TranscriptPad for iPad. Users may load ASCII transcripts for review and issue coding via iPad. The user may then generate a report of the various issue codes relating to each deponent.

Most software programs have a manual, an online help component and many free training sessions for new users. Many software developers offer free video tutorials via YouTube to assist users in learning their products. It is important to keep abreast of any new features that are added to any software program your firm uses. If your case management software requires manual software updates, it is imperative that the person or department in charge of the law firm’s IT systems, applies updates as they are released by the software developer. Updates often fix known security issues and add new features to the software.

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Conflict Checks A conflict exists when an attorney’s representation of a client would be unduly influenced by any firm member’s relationship with parties involved in the lawsuit. For instance, it would be inappropriate and a conflict of interest for a firm to represent both the plaintiff and defendant in the same lawsuit.

Whenever an attorney or law firm is investigating a new case, a conflict of interest check should be performed as soon as possible. To perform a conflict of interest check, all employees of the firm should be notified of the names of the potential clients and opponents - at a minimum - as well as the basis of the lawsuit. Each employee is required to inform the attorney of any relationships, past or present, so that the attorney can determine if, in fact, there is a conflict of interest. In addition, if your firm uses database management software (see below), the names of all parties should be run through the database to determine any possible conflict of interest, such as one of the parties named as a witness in an existing case.

Firms that use Microsoft® Outlook can easily check for a conflict of interest by using Outlook’s voting buttons to send an email to the entire firm asking if anyone has a relationship with the parties listed and to vote either yes or no. The Outlook program will automatically report the responses, which can then be taken to the attorney in charge so that they can investigate further if necessary.

The American Bar Association (ABA) has clear guidelines on what constitutes a conflict of interest within its Model Rules of Professional Conduct (Rules 1.7-1.12 related to Conflicts of Interest)64.

Paralegals should review the ABA guidelines, state professional rules of conduct, and their firm’s conflicts policy to become well-informed about what is and is not considered to be a conflict of interest.

Database Management Systems Some cases require the organization and easy retrieval of large pieces of information within a case.

For instance, in cases with hundreds of plaintiffs, hundreds of defendants, gigabytes or terabytes of data, the best way to organize this information would be in a database management system, or database. Case management databases are not to be confused with discovery databases, such as Relativity. Discovery databases are discussed in more detail a later section.

The most commonly used database software is Microsoft® Access™. There are now many database options available to fit each law firm’s budget needs. It is advisable to keep abreast of the different database options available. Learning to use database software is not always easy. Paralegals that will be creating and using databases on a regular basis are advised to take a class specific to database management, or to start with smaller or uncomplicated databases. The main goal is to carefully think about how the information in the database will be used in the future and what information will need to be extracted. Every database is different and every use is different.

When creating a database, it is crucial to take the time, no matter how much time that is, to determine what elements or fields of information will be needed. This first step is the most important and will save a lot of time down the road. A database field can be anything the paralegal wants it to be to suit your firm’s needs. The more effort put in to planning the kind of data that will be managed in the database and configuring the database, the more useful it will become as the case develops.

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Microsoft® provides a “Database Design Basics” article65 to help with ideas for creating a database.

Also, this article clearly explains database terms that need to be understood before creating a database.

The Access™ 2019 program organizes information into tables: lists of rows and columns reminiscent of an accountant’s pad, or a spreadsheet. In a simple database, there may be only one table; however, most databases need more than one. For example, businesses may have one table that stores information about products, another table that stores information about orders, and yet another table with information about customers:

Each row in a database table is referred to as a record, and each column, a field. A record is a meaningful and consistent way to combine information about something. A field is a single item of information - an item type that appears in every record. In the Products table, for instance, each row or record would hold information about one product. Each column or field holds some type of information about that product, such as its name or price.

The records can be sorted to generate a variety of reports. For example, law firms can generate a report of all clients referred by the same source within a specific timeframe if that information is tracked and input into the database (e.g., client name, referral source, date of hire). The possibilities are endless with all the types of information collected in a case, such as outstanding expert reports and fees paid or due if a database table has been created and includes the case name, expert name, date of hire, fees paid or due, etc.

What is good database design?

Certain principles guide the database design process. The first principle is that duplicate information (also called redundant data) is bad, because it wastes sPACE® and increases the likelihood of errors and inconsistencies in reporting. The second principle is that the correctness and completeness of information is important. If your database contains incorrect information,

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any reports that pull information from the database will also contain incorrect information. As a result, any decisions made based on those reports are misguided.

A good database design is, therefore, one that •

Divides information into subject-based tables to reduce redundant data;

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Provides organized access to case information;

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Helps support and ensure the accuracy and integrity of information; and

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Accommodates data processing and reporting needs.

The design process consists of the following steps: •

Determine the purpose of your database Taking the time to outline the specific elements needed for a comprehensive database will help prepare for the remaining steps. An element is necessary data or values on which calculations or conclusions are based.

•

Find and organize the information required Gather all of the probable types of information to record in the database, such as client name, address, email address and telephone numbers, along with the firm’s case number.

Other helpful information includes the opponent’s name and address, as well as his/her attorney’s name, address, email address and telephone numbers. A law firm’s database may also include court information, including the court’s case number, along with the court reporter, interpreter and/or judge’s information. The possibilities are endless.

•

Divide the information into tables Separate information into major elements or subjects, such as assigned attorney or case type (e.g., Estate Planning/Guardianship/ Probate). Each subject then becomes a table.

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Turn information items into columns Decide what information to store in each table. Each item becomes a field, and is displayed as a column in the table. For example, a table of Employees could include fields such as Last Name, Date of Hire and Social Security Number.

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Specify primary keys Choose each table’s primary key. The primary key is a column that is used to uniquely identify each row. An example might be Active Clients/Inactive Clients/Closed Clients.

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Set up table relationships Look at each table and decide how the data in one table is related to the data in other tables. Add fields to tables or create new tables to clarify the relationships as necessary.

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•

Refine the design Analyze your design for errors. Create the tables and add a few records of sample data.

Test to see if the desired report result from your tables. Make adjustments to the design as needed.

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Apply the normalization rules Apply the data normalization rules to see if the tables are structured correctly. Make adjustments to the tables as needed.

It is a good idea to write down the purpose of the database on paper - its purpose, how the firm expects to use it and who will use it. For example, with a small database for a sole practitioner, the paralegal might write something simple like: “The client database keeps a list of client information for the purpose of producing mailings (monthly bills) and reports.” If the database is more complex or will be used by many people, as often occurs in a larger law firm setting, the purpose could easily be a paragraph or more and should include when and how each person will use the database. The idea is to have a well-developed mission statement that can be referred to throughout the design process. Having such a statement helps to focus on goals when making decisions.

Docketing and Calendar Control Docketing and calendar control are two of the most important functions in a law office. Docketing primarily refers to recording and tracking documents to be filed with the court and includes maintaining a history and sending reminders when an action needs to be taken, while calendar control relates specifically to dates and deadlines. Some larger firms have one person who functions as the docketing clerk and handles all the docketing and calendaring for the firm. Smaller firms usually leave this task to either the legal assistant or paralegal assigned to the case. If the paralegal is the person responsible for docketing and/or calendar control, the key is to keep the lines of communication open with the attorney. Each entry and deadline must accurately post in more than one place for easy retrieval, follow-ups and reminders.

If your firm uses Microsoft® Outlook, one way to efficiently calendar dates and deadlines is to set up an Outlook calendar and share it with all members of the case. Each time a deadline needs to be noted, add it to the common calendar and link it to the client’s matter. It is advisable to not only note the actual deadline, but to also note reminders of a deadline well in advance of the deadline itself. A good rule of thumb is to make a note one month, two weeks, one week and two days in advance of any deadline. Using this method will ensure that each team member is reminded of the deadline via the common calendar. Another way to keep track of deadlines is to send each team member an Outlook “invitation.” Instead of “inviting” the team member to a meeting, simply note the deadline.

The team member will accept the “invitation,” and the deadline will appear on each team member’s personal calendar in addition to the common/case calendar.

It is advisable for the calendar system to be backed up according to the firm’s IT policies or stored in the cloud in the event of an equipment failure. The firm should check the requirements of their state and malpractice insurance policy to ensure they are meeting their data retention obligations.

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Electronic Discovery Electronic Discovery - or e-discovery/eDiscovery - refers to discovery in civil litigation that deals with the exchange of information in electronic format (often referred to as Electronically Stored Information or ESI). Usually, but not always, a digital forensic analysis is performed to recover evidence. A wide array of people is involved in e-discovery, such as forensic investigators, lawyers, paralegals, and Information Technology (IT) managers.

Just prior to commencement of a lawsuit - or soon thereafter - data is identified as relevant by attorneys and placed on a legal/tort, which is a process used by an organization to preserve all forms of information it may otherwise routinely destroy when litigation is reasonably anticipated. Evidence may then be extracted and analyzed using digital forensic techniques, and is usually converted into portable document format (PDF) or tagged-image file format (TIFF) for use in court.

Electronic information is considered different from paper information because of its intangible form, volume, transience and persistence. Electronic information is usually accompanied by metadata not found in paper documents, which can play an important part in proving the chain of evidence. For example, the date and time a document was written could be useful in a copyright case. The preservation of metadata from electronic documents creates special challenges to prevent spoliation of the evidence. Electronic discovery was the subject of amendments to several of the Federal Rules of Civil Procedure, effective December 1, 2006.

Examples of the types of data included in e-discovery are email, text messages, instant messaging chats, documents, accounting databases, computer-aided design (CAD)/computer-aided manufacturing (CAM) files, websites, Internet of Things (IoT) devices, and any other electronicallystored information that could be relevant evidence in a lawsuit. Also included in e-discovery is “raw data,” which Forensic Investigators can review for hidden evidence. The original file format is known as the “native” format. Litigators may review material from e-discovery in one of several formats: printed paper, “native file,” Adobe®/PDF format, or as single/multi-page Adobe®/TIFF images.

Quite often, discovery evidence is either delayed or never produced, many times because of the inaccessibility of the data. Inaccessibility occurs when data backups cannot be found, or is erased.

This kind of situation reached its apex during the Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) lawsuit. Throughout the case, plaintiff claimed that the evidence needed to prove the case existed in emails stored on UBS’ own computer systems. Because the emails requested were either never found or destroyed, the court found that it was more likely that they existed than not. The court also found that while the corporation’s counsel directed that all potential discovery evidence including emails - be preserved, the staff that the directive applied to did not follow through. This resulted in significant sanctions against UBS. In 2006, the U.S. Supreme Court’s amendments to the Federal Rules of Civil Procedure created a category for electronic records that, for the first time, explicitly named emails and instant messaging (IM) chats as likely records to be archived and produced when relevant. The rapid adoption of IM as a business communications medium has made IM as ubiquitous in the workplace as email and has created the need for companies to address archiving and retrieval of IM chats to the same extent they do for email.

With electronic message archiving in place for both email and IM, it becomes a fairly simple task to retrieve any email or IM chat that might be used in e-discovery. Some archiving systems apply a unique code to each archived message or chat to establish authenticity. The systems prevent

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alterations to original messages - messages cannot be deleted, and the messages cannot be accessed by unauthorized persons.

Also important to complying with discovery of electronic records is the requirement that records be produced in a timely manner. The changes to the Federal Rules of Civil Procedure were the culmination of a period of debate and review that started in March 2000 when then-Vice President Al Gore’s fundraising activities were being probed by the United States Department of Justice. After White House counsel Beth Norton reported that it would take up to six months to search through 625 storage tapes, efforts began to mandate timelier discovery of electronic records. Modern message archival systems allow legal and technology professionals to store and retrieve electronic messages efficiently and in a timely manner.

Formalized changes to the Federal Rules of Civil Procedure in December 2006 and 2007 effectively forced civil litigants into compliance mode with respect to their proper retention and management of electronically stored information (ESI). The risks that litigants face as a result of improper management of ESI include spoliation of evidence, adverse inference, summary judgment and sanctions. In some cases, such as Qualcomm v. Broadcom, 543 F.3d 683 (Fed. Cir. 2008), attorneys can be brought before the bar and sanctioned, with the ultimate risk being a loss of livelihood.

Most employees have voice mail that is stored on a computer until it is deleted by the user. Employers may have a duty to retain voice mail if there is an anticipation of litigation involving that employee.

Many corporate employees have company-issued smartphones that may contain discoverable material. This can raise issues for collection, as the tools for acquiring data from such devices are often expensive. However, many devices are backed up to the cloud which makes retrieval of relevant data much more affordable and simple.

Although petrifying documents to static image formats (e.g., TIFF & PDF) had become the standard document review method for almost two decades, native format review has increased in popularity since around 2004. Applications and toolkits capable of opening multiple file formats to review documents in their original file formats have also become popular. This is also true in the Electronic Content Management (ECM) storage markets which are converging quickly with ESI technologies.

Petrification involves the conversion of native files into an image format that does not require use of the native applications. This is useful in the redaction of privileged or sensitive information since redaction tools for images are traditionally more mature and easier to apply on uniform image types.

Efforts to redact similarly petrified PDF files have resulted in the removal of redacted layers and exposure of redacted information, such as social security numbers and other private information.

Traditionally, e-discovery vendors had been contracted to convert native files into TIFF images (for example 10 images for a 10-page Microsoft® Word document) with a load file for use in image-based discovery review database applications. Most database review applications have embedded native file viewers with TIFF capabilities. With both native and image file capabilities, the program can either increase or decrease the total necessary storage since there may be multiple formats and files associated with each individual native file. Deployment, storage and best practices are becoming especially critical and necessary to maintain cost-effective strategies.

A number of different people may be involved in e-discovery, such as lawyers for both parties, forensic specialists, IT managers and records managers, paralegals, among others. Forensic examination often uses unusual terminology and acronyms (for example “image” refers to the acquisition of digital media), which can lead to confusion.

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While attorneys involved in case litigation try their best to understand the companies and organizations they represent, they may fail to understand the policies and practices that are in place in the company’s IT department. As a result, some data may be destroyed after a legal hold has been issued by unknowing technicians performing their regular duties.

Given the growing complexities of modern litigation and the wide variety of information systems on the market, electronic discovery often requires IT professionals from both the attorneys’ offices (or vendor-agent of an attorney) and the parties to the litigation to communicate directly to address technology incompatibilities and agree on production formats. Failure to get expert advice from knowledgeable personnel often leads to additional time and unforeseen costs in acquiring new technology or adapting existing technologies to accommodate the collected data. At worst, these delays may result in sanctions.

Electronic Filing (E-filing)/Electronic Case Filing (ECF) Today, all federal courts allow e-filing. Many state and local courts either allow, or are in the process of allowing, for pleadings to be filed electronically.

The rules associated with Electronic Case Filing vary from court to court. The best way to understand ECF for a particular court is to check the court’s Web page. The federal court e-filing system, known as Public Access to Court Electronic Records (PACE®R)66, provides links to each of the federal appellate, bankruptcy and district court Web pages.

In many courts, the initial complaint must be filed via hard copy, with an electronic copy on a CD that has been certified to be free of viruses. The clerk of the court will then open the docket and upload the complaint. From that point on, paralegals will be able to file pleadings electronically unless the case is filed “under seal,” in which case all pleadings need to be filed via hard copy with the clerk.

Increasingly, courts allow the filing of the initial complaint electronically. Check with your local court rules to confirm filing procedures.

Since its inception in 1995, all documents filed through PACE®R are required to be in PDF format.

However, Adobe has added features to the PDF, some of which create security risks. Although not yet required, the local federal courts are encouraging portable document format for archive (PDF/A) filings, which eliminate these risks.

It is important to understand how each court requires electronic documents to be filed. Some courts require that attachments be filed with the original document, while others require that certain exhibits or attachments be filed as separate documents.

There are also size limitations on documents and exhibits when e-filing. With large documents or several exhibits, it is imperative to check with the clerk to ascertain that court’s file size limit. Do this as far in advance as possible of the actual filing to plan accordingly. In most cases, a document may be filed electronically up until midnight on the due date.

It is not advisable to wait until the last minute to file a document electronically with the court. In some cases, it cannot be avoided, but filing at the last minute should not be the practice. If your firm’s Internet service fails or the court’s system fails, not only is extra work created, but a potential

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malpractice issue may also occur. Both instances can easily be avoided by e-filing ahead of the deadline.

In order for an attorney to file a document via ECF, he/she must either be a member of that court or be admitted to that particular court pro hac vice (for that occasion). Once admitted, an ECF filing username and password will be issued. Often, the attorney will be required to take an ECF tutorial before being issued an ECF username and password. Each court requires a unique username and password, which should be kept in a safe place.

When the attorney sets up his/her ECF filing profile for each court, he/she may include anyone that he/she wishes to receive notification of any filings in the case via email. The lead paralegal should be included on the email notifications of documents filed in a case to ensure firsthand knowledge of all developments in a timely manner. Being immediately notified of a filing will also help to keep track of deadlines in the case.

Litigation Support Systems Litigation support systems are databases run by specialized software that store case discovery documents, photos, video and emails. These databases make reviewing discovery easy and efficient.

There are many litigation support systems on the market. The industry standard is Relativity®. There are many others on the market today. It is your job as a paralegal to know which options are available to you. Your firm may use one or many of these litigation support systems depending on need.

Documents, photos, video and emails are processed by either your IT department or an outside vendor and loaded into these systems. These items are identified within the systems by their Bates numbers.

Bates numbering is the universal system for identifying documents in litigation. Although each system runs a little differently, they all share the same goal, which is to quickly locate and code documents and any discovery for litigation. While Bates numbering used to be possible only with a manual, hand-stamp, there are several software programs available to produce electronic Bates numbers.

Paralegals in larger firms routinely meet with a litigation support specialist to discuss the types of discovery they have and what they want done with it. They may only need to have access to a few hundred documents, or may have to code thousands or even millions of pages of documents for a large case. In a smaller firm, the paralegal may choose to run the software on his/her computer, the firm network or through a vendor using their servers via the Internet.

Litigation support systems act much like databases. Documents can be retrieved by either Bates number or through search terms. Once the document is viewable, the paralegal can make notes on the document, highlight important information and even bring up a coding sheet to code the documents with both subjective and objective information for use later in the case.

Office Management Tools Office Management tools are any number of software programs that can help the law office run smoothly and efficiently. Some offices use a variety of software or online tools such as: •

Go to Meeting™ – an online tool that allows people to meet via computer, smart phone, or tabletand share documents.

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•

Skype™ – an online tool that allows people to meet via computer, smartphone, or tablet using webcams built/plugged into their devices.

•

Google Docs™ – an online software program that can be used from outside the office to prepare documents and spreadsheets if there is no access to Microsoft® Office.

•

Office 365™ – an online version of Microsoft Office available in the cloud.

Whatever tools your firm uses, paralegals should make sure they become completely educated in their use. Most software developers offer online tutorials to help individuals readily adapt to their program.

Paralegals should also be on the lookout for the latest tools to recommend to firm management to become a contributing factor to the success of the office.

Retainer and Fee Arrangements Depending on which type of law your firm practices, they will utilize either a Fee Agreement or a Retainer Agreement. A Retainer Agreement is used when legal services are charged by the hour.

Usually, the client will be required to pay for legal services in advance. Once those funds are exhausted, the client may be required to pay additional funds. With a Fee Agreement or Contingent Fee Agreement, the client signs an agreement which states that the firm or attorney will be paid a certain percentage of any settlement. In general, if there is no settlement, the client does not pay any fees to the firm or attorney. Additionally, some agreements are written to include that the client is not responsible for costs if there is no recovery, while others hold clients responsible for paying all/some of the costs.

Retainer Agreements are generally used in practices that handle real estate transactions, criminal matters, business transactions, municipal court matters or divorce matters. Fee Agreements are usually used in practices that handle personal injury matters, medical malpractice matters or class actions.

Your firm will most likely have several types of fee or retainer agreement forms. Most states also have very specific rules for the use of either a fee or retainer agreement, including specific fees - or fee limitations - that can be charged for legal work.

Spreadsheets Although the most commonly used spreadsheet software is Microsoft® Excel, there are several other spreadsheet options available, such as Google Sheets, and Numbers by Apple. Spreadsheets are used in law firms for many purposes; for instance, billing, expense reports and indexes. Spreadsheets make mathematical computations and sorting information easy. Excel is user-friendly. It is not necessary to know complicated mathematical formulas because Excel will lay everything out for the user.

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Spreadsheets are comprised of rows, columns and cells. For example:

COLUMN

ROW

CELL CELL

Spreadsheets are easy to create and use. Think of a spreadsheet as a chart in Microsoft Word®. The more experience with Excel, the more uses will become obvious for spreadsheets in the law office.

That being said, spreadsheets are used mostly by paralegals that work with numbers.

Timekeeping and Billing For most firms, the ability to keep track of and accurately bill time is crucial to the success of the firm. Practically all firms require paralegals, with the exception of those that work in a corporate environment, to “bill for time,” and usually have an annual billable hour requirement.

In order to bill effectively, paralegals must be able to account for approximately seven hours of billable time per day. Each firm is different; some firms allow limited time used for administrative work and/or pro bono work to be included in the required billable hours; some do not.

If your firm has an annual billable hour minimum for paralegals, it is important to know exactly how many hours per day are needed to bill to meet the goal. In order to calculate the daily hourly minimum required, subtract the number of weeks allowed for vacation, sick time and holidays from 52 weeks to get the actual number of weeks worked. Divide that number by your minimum billable hours, and then divide the resulting number by the number of days a week worked. This should result in the minimum number of hours necessary, per day, to meet the minimum billable requirement.

For instance, your firm allows three weeks of vacation, ten holidays (2 weeks) and five sick days (1 week), for a total of six weeks per year spent not working. Subtracting the six weeks from 52 (the weeks in a year) results in your working a total of 46 weeks per year. If 1800 billable hours are required that year, divide 1800 by 46 - the result is roughly 39 hours per week. For a five-day work week, approximately 7.8 hours per day should be billed.

Most firms use billing software which allows paralegals and attorneys to directly enter the task performed and time spent on a particular case. There are many ways to keep track of time; the key is to be sure to bill for all work performed. One method of tracking billed time is by time sheet.

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A time sheet can be as simple as this example: Name: Date: File Name

File Number

Time spent

Category

Textual Description

As professionals, paralegals will be required to work however many hours are necessary to get an assignment completed. Do not develop a mindset that the minimum billable hours will be the only hours required or expected to work.

It is important to be aware of your workload to have enough work to meet any billing requirement; it is equally important to anticipate and ask for help the second it becomes apparent a given deadline cannot be met. Lastly, do not ever be tempted to pad your time (bill more time than the activity actually took to perform) and risk ruining your reputation with the client and/or your employer.

Word Processing Software Word processing software, like Microsoft Word®, is used every day in law firms by all firm members from senior partners to file clerks. In order to function in any office today, paralegals need to be proficient in word processing software.

Everyone working in a law office is expected to know how to use basic word processing software. If you need help understanding some of the features of the software in your firm, there are many tutorials available by performing a simple internet search. YouTube is also a worthwhile resource for brushing up on software skills.

Sample Questions 139

Q:

What type of account would funds held for clients be deposited in?

A. operating account B. trust account C. cost account D. fee account

A:

(B.) The purpose of a trust account is to keep funds held for the benefit of clients separate from other accounts because of rules against commingling of funds held for others with regular firm operating accounts. Placing funds held for the benefit of clients into any of the other accounts listed could result in a misappropriation of client funds claim.

Q:

One of the attorneys in a firm of 25 lawyers has a conflict regarding a possible new client.

What is a result of the conflict?

A. the lawyer with the conflict cannot work on the case B. the conflict attaches to all lawyers in the firm C. only the senior partners may work on the case D. no associates may work on the case

A:

(B.) As set out in the ABA Model Rules of Professional Conduct, if any lawyer in the firm has a conflict, that conflict attaches to every lawyer in the firm, making it impossible for any lawyer in the firm to take on the new matter.

Q.

You recently switched firms and your best friend’s mom, whom you have known since you were a child, shows up on the office manager’s weekly conflict list for an attorney in another department. What is the best course of action?

A. call your friend’s mom B. inform your supervising attorney C. call your friend D. inform the office manager

A:

(B.) The conflict arises because of your employment, so your supervising attorney is the best answer because attorneys are responsible for resolving potential conflicts.

Q:

What does OCR’ing a document to make it editable and searchable mean?

A. converting a document for optical character recognition B. flagging a document for optical character recognition C. scanning a document for optimum character recognition D. converting a document for optimum character recognition

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A:

Q:

(A.) The correct term is “optical” character recognition and there are software programs that will convert a document to OCR without scanning. Simply flagging the document is a distractor; “optimum” character recognition is not a term. Attorneys – and thus paralegals – are responsible for keeping up-to-date on technology; knowing how to convert documents to make them editable and searchable is a basic skill to be mastered within your firm.

You spent 19 minutes on a billable call to the client regarding discovery. What is the standard time entry for this amount of time?

A. .1 B. .20 C. .3 D. .19

A:

(C.) Best practice for entering billable hours is to generally capture the time in intervals of onetenths of an hour (6-minute increments). Three-tenths (.3) equals 18 minutes (.3 x .6) and is the closest choice to 19 minutes of time.

Q:

You receive assignments – all due at once – from a paralegal supervisor, an associate, and a partner. What is the next best step?

A. inform all three of the conflict B. complete the supervisor’s work first C. complete the partner’s work first D. inform the associate their works is the lowest priority

A:

(A.) Informing all three at once gives them the opportunity to extend your deadline or determine if a task needs to be reassigned since people delegating work generally do not coordinate with each other to whom they are delegating. While it may be tempting to try keeping the supervisor and partner happy without complaint, you cannot and should not risk not getting any of these assignments completed timely. Also, you should never discount an assignment from an associate.

Q:

It is 5 p.m. and you realize that you asked an assistant to call the court to find out if a continuance for tomorrow morning has been granted, but they never got back to you. What should you do?

A. call the court B. call the client C. check the docket D. call opposing counsel

A:

(D.) The best answer is to call opposing counsel since they also have an interest in whether the case has been continued. Best practice is to follow up with the assistant midday or well before the court closes to avoid this situation.

Q.

There is an ethical wall preventing you from working on a case adverse to one of your friends. You are inadvertently copied on an internal e-mail that is highly detrimental to the client. What is the best course of action?

A. call your friend B. inform your boss 141

C. inform the e-mail sender D. check with a supervisor A:

(C.) The standard business e-mail has a disclaimer instructing you to notify the sender immediately if you are not an intended recipient. While letting your boss know is a good idea, they are not the best person to advise. Checking with a supervisor is always a good idea if you are unsure of what to do, but there is no ambiguity with standard e-mail disclaimers.

Calling your friend directly is unethical and is prohibited by rules of professional conduct.

Q.

You receive a communication from an outside firm’s paralegal without a title under their name or on the letterhead. What should you do?

A. inform the paralegal B. inform the supervising attorney for the paralegal C. inform your paralegal supervisor D. inform your supervising attorney

A:

(D.) Attorneys are responsible for the conduct of non-lawyers under the rules of professional conduct. Rather than informing either the paralegal or their supervising attorney of the misconduct directly – either of whom may take your well-intentioned information as a threat – the news is best delivered by another attorney. While informing your paralegal supervisor is not a bad idea, it is not the best answer.

Q:

All of the following are examples of client documents, except for which one?

A. joint tax return B. birth certificate C. client-generated expense spreadsheet D. passport

A:

(C.) While a spreadsheet of expenses generated by the client appears to be a client document, it is actually a client communication to the legal team. Tax returns, whether individual or joint; birth certificates; and passports are client documents on file with government entities.

Q:

What is the most important part of an e-mail?

A. subject or re line B. body of text C. disclaimer D. recipient(s)

A:

(D.) Sending an e-mail to the wrong recipient poses the most harm to the client. While a descriptive subject line, clear content and a legal disclaimer are important moving parts, along with including any indicated attachments, always double-checking the correct recipient(s) is crucial.

Q:

A new client’s statute of limitations runs in one week. Your calendar automatically enters 142

deadlines with reminders one and two weeks prior for the attorney. You have calendared the deadline, but what else should you do?

A. change the one and two-week reminders to one and two-day reminders B. delete the one and two-weeks prior reminders C. mark the one and two-weeks prior reminders as “n/a” D. calendar daily reminders for yourself and the attorney A:

(D.) Missing a statute of limitations deadline will most likely lead to a malpractice action. With only a week to file, calendaring daily reminders for both of yourself and the attorney – and asking the attorney daily about filing sooner rather than later – is best practice.

Q:

You are asked to close a file and you find personal photographs and original documents that belong to the client. What is the first thing you should do?

A. mail the items to the client via regular mail B. call the client to ask if they want to pick up the items C. mail the items to the client with some form of tracking D. e-mail the client to alert them to the closing of the file

A:

(B.) Call the client to ask their preference for return of the items, especially since they may prefer to pick them up or may have moved since your last communication. If the client wants the items mailed, confirm a current delivery address and whether the client wants to sign for the package.

If the client waives signing, you should still send the package with some form of tracking in case it is lost.

Q:

You accidentally “replied all” to an e-mail an associate blind copied you on. What should you do?

A. inform your paralegal supervisor B. inform the associate C. look for a new job D. do nothing and hope no one notices

A:

(B.)While the associate will receive the “reply all,” it is best practice to go to their office in case they have not seen the e-mail yet and/or to apologize and say that you will be more careful going forward.

Q:

You receive an invoice from a trusted court reporter you have not used in ages. You do not recognize the charge. What should you do?

A. submit the invoice for payment B. inform your boss C. inform your paralegal supervisor D. contact the court reporter

A:

(D.) Because of prevalence of fraud and identity theft, there are many scammers issuing fake invoices that appear valid. A big clue is the remittance address. If it is not that of the court reporter, the invoice may be fraudulent. Best practice is to contact the court reporter directly.

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DOMAIN 02: SUBSTANTIVE AREAS OF LAW BUSINESS ORGANIZATIONS AND CORPORATE LAW Introduction Business law is a broad and complex topic that encompasses not only the types of business entities and their functions, but also typically includes contracts, labor and employment, products and services, dispute resolution, property - including real and intellectual - and much more. A paralegal working in a law firm doing corporate work or even as a corporate paralegal may be responsible for many different aspects of creating the appropriate business entity, including but not limited to: researching the requirements for maintaining the type of entity, researching name availability for the business entity, filing documents with the Secretary of State and State Departments of Revenue, maintaining corporate documents, SEC and other administrative filings and assisting with sales, mergers, acquisitions, dissolutions and any other transactions.

Any number of federal, state and local statutes and regulations may regulate a typical business. For example, a financial institution, such as a bank, will have to comply with federal agencies and regulations such as the Securities and Exchange Commission, Federal Deposit and Insurance Commission, Federal Trade Commission, Department of Labor (with respect to employment issues), Internal Revenue Service, Department of Housing, Environmental Protection Act, Occupational Health & Safety Act and Family Medical Leave Act, as well as contractual issues which may be multi-jurisdictional.

There are privately held entities and publicly held entities. A private company can be a corporation, a limited liability company, a partnership, or a sole proprietorship, as long as the shares are privately held and not traded publicly. This section will cover the benefits of each type of entity, the manner in which the business is created, operated and dissolved. Publicly held corporations, while regulated by state laws, may also be regulated by the Securities and Exchange Commission (SEC) and other government agencies. Public Corporations, those subject to SEC regulation will be the primary focus of this section as they fall under “federal” agency law and relate to paralegal work.

There are advantages and disadvantages to the various forms of business. Those who wish to start a business must consider the following: 1) tax ramifications; 2) ownership control; 3) potential liability to the owners; 4) cost and formalities; and 5) ability to transfer interest.

Type of Entity Corporation A corporation is defined as a business entity, authorized by state law, separate and distinct from its owners that is formed and authorized to act as a single person. Corporations are owned by their stockholders (shareholders) who share in profits and losses generated through the entity operations.

Regardless of the number of persons who own or share in the corporation, the corporation is treated as a single entity. In most cases, the corporation protects the individual shareholders from personal liability.

New corporations, as well as LLCs considering corporate taxation can choose between filing taxes as a C corporation (C corp) or an S corporation (S corp). An S corp is considered a “pass-through entity,” which means the business itself isn’t taxed. Instead, income is reported on the owners’ personal tax returns. Businesses taxed as C corporations are not pass through entities. Income is taxed 144

at the corporate level, and, if dividends are distributed, at the individual level as well. One difference

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between an S Corp and a C Corp is that S Corporations shall not have more than 100 shareholders and all shareholders must be US citizens or resident aliens, can issue only one class of stock; and not be a member of an affiliated group of corporations C Corporations can be closely or privately held and publicly held while S Corporations cannot. They can only be closely held. Many of the same laws apply to both closely held and publicly held corporations.

Closely Held Corporation The largest numbers of corporations in the United States are closely held corporations. Corporations are incorporated pursuant to the state law in which the Corporation is formed. Corporations can take various forms including C-Corporation, S-Corporation, Limited Liability Company, and Professional Corporation (also known as a Professional Association). A Corporation’s existence is perpetual, unless dissolved by its Board of Directors or the state where it is formed, as for failure to pay required annual fees and/or file annual reports. Articles of Incorporation are filed with the Secretary of State, bylaws are prepared, directors are appointed, officers are elected, the proper state tax forms are prepared, meetings are held and minutes are prepared; any other type of business is performed as set forth under the Articles and the bylaws. The Secretary of State website should be consulted to determine what additional documents must be prepared and filed, along with the required fees. Bylaws are the rules that govern the Corporation’s operational and management procedures. Unlike Articles of Incorporation, bylaws are not filed with the Secretary of State. Bylaws define the way the Corporation will be operated and managed. Matters set forth in the bylaws include the date, time and place of the annual meeting of the Shareholders, quorum requirements, the number and power of the Board of Directors, and their term of office. Bylaws should establish the duties of the officers and provide for how amendments to the bylaws may be made.

Non-Profit Non-profit (or not-for-profit) corporations are closely held corporations formed formed to carry out a charitable, educational, religious, literary, or scientific purpose. A nonprofit corporation doesn’t pay federal or state income taxes on profits it makes from activities in which it engages to carry out its objectives. Articles of Incorporation must be filed with the Secretary of State, Bylaws adopted, and a Board of Directors elected and officers appointed. The nonprofit group must qualify as such under the appropriate Internal Revenue Code of which there are several that relate to not-for-profit status.

Professional Corporation (PC) The professional corporation is a type of corporation created for doctors, dentists, accountants, lawyers and other licensed professionals in order to take advantage of certain tax deductions, particularly for health and pension plans. Since it is considered contrary to public policy to grant licensed professionals limited liability for negligence, the “owners” of the professional corporation are not afforded that same protection allowed in other types of corporations.

A professional corporation must follow the same rules, regulations and procedures as a closely held corporation. Articles of Incorporation will be filed with the Secretary of State. Bylaws, operating agreements, employment contracts, corporate minutes and other documents must be prepared and maintained.

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Publicly Held Corporation A publicly held corporation is a corporation whose stock is sold or traded on one of the national securities exchanges. The shareholders in this type of corporation are traditionally investors. The management and control of the corporation is maintained by the Officers and Directors, who may also be shareholders.

Due to an increasing “global” economy, many multinational or transnational corporations have been created. The stocks may be traded on the securities exchanges of numerous countries. The managers may be citizens of different countries.

Domestic, Foreign and Alien Corporations These “corporations” are terms of art for the location of incorporation as well as where the corporation does business: •

Domestic Corporation – a corporation described in terms of where it was formed and where the Articles of Incorporation are filed.

•

Foreign Corporation – a corporation that is incorporated in one state, but which does business in another state or states.

•

Alien Corporation – a corporation formed in another country, but which does business in the United States or its territories.

All of these corporations can be either publicly held or closely held corporations as defined above.

Partnership According to the Revised Uniform Partnership Act (RUPA), a partnership is comprised of two or more persons who voluntarily associate to form a business to “carry out a business as co-owners” for profit. A partnership that is created may be a general partnership or a limited partnership.

General Partnership Under a general partnership, all partners are equally responsible for the management of the business, share all profits and are equally responsible for any debts incurred by the partnership.

There is no limited liability, which means all the partners’ assets can be taken in a lawsuit or be targeted to settle debts should the partnership become insolvent. Any partner can be sued for the full amount of business debts. Another attribute of the general partnership is that every partner has so-called “agency powers,” which means any partner can bind the entire business to a contract or business deal.. In the event the general partners contribute unequally, each partners’ share (derivative share) should be documented in a partnership agreement, including how profits are to be distributed. Another benefit of a general partnership is that it does not require filing with the state in which it is formed. All that is needed is a general partnership agreement.

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A well-written partnership agreement includes the following: •

Name and address of the business (partnership);

•

Names and addresses of the partners;

•

Purpose and duration of the partnership;

•

The amount and type of investment of each partner;

•

Management and voting rights of each partner;

•

Responsibilities and duties of each partner;

•

Type of accounting system, financial institution, authority to deposit and withdraw funds, etc.;

•

Authority to borrow money for the company, as well as whether partners may borrow from the company;

•

Employee and employment responsibilities and information; and

•

How profits and losses will be shared.

The partnership will file a partnership tax return with the Internal Revenue Service (IRS), showing any profit or loss of the business. The partnership does not pay taxes itself. Profit is shown in its derivative share and each partner pays personal income taxes on his/her share of the profits. If the partnership loses money, each partner is allowed to deduct the derivative share from his/her personal income tax. Should the business fail, all partners will be held equally responsible for all debts of the partnership out of their personal resources.

Limited Partnership (LP) A limited partnership is an association of two or more persons to carry on as co-owners as a business for profit. The term “person” generally includes individuals, corporations and other partnerships and business associations. A limited partnership must have one or more general partners who manage the business and who has unlimited personal liability for partnership debts.

A limited partnership must also have at least one limited partner who has limited liability but cannot participate in the management and control of the partnership’s business.

In order to register as a limited partnership, formation documents must be filed with the appropriate state agency and the appropriate filing fees must be paid. The partners should have an attorney prepare, and they should execute, a partnership agreement that states the purpose of the limited partnership and the capital contributions made by each partner. The general partner should be named in the agreement, along with his/her fiduciary and management responsibilities to the partnership.

Limited partnerships are governed by the Uniform Partnership Act, the Revised Uniform Partnership Act (RUPA) or the Uniform Limited Partnership Act, depending on your state. Note that some states have not adopted RUPA but have modified certain provisions of the uniform acts. Paralegals should be sure to check their state’s versions of the act to determine which

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provisions may differ from the uniform law. The most recent revision has been enacted into law by 37 states.

Limited Liability Partnership (LLP) A limited liability partnership is a form of partnership with one important difference: A limited liability partnership (LLP) is a partnership in which some or all partners (depending on the jurisdiction) have limited liabilities. It therefore can exhibit elements of partnerships and corporations. In an LLP, each partner is not responsible or liable for another partner’s misconduct or negligence. Unlike a general partnership in which individual partners are liable for the partnership’s debts and obligations, an LLP provides each of its individual partners with protection against personal liability for certain partnership liabilities, the limit of which depends on the scope of the state’s LLP legislation. Licensed professionals, such as doctors or lawyers, often prefer LLPs because the partners will not be personally liable for another partner’s problems, particularly those involving malpractice claims.

Limited Liability Limited Partnership (LLLP) A limited liability limited partnership is a relatively new modification of the limited partnership.

An LLLP consists of one or more general partners and one or more limited partners. The general partners manage the LLLP, while the limited partners, typically, only have a financial interest. The difference between an LLLP and a traditional LP is with respect to the general partner’s liability for the debts and obligations of the partnership. In an LLLP, the limited partnership will typically make an election under state law so that the general partners will be afforded limited liability for the debts and obligations of the partnership that arise during the period that the LLLP election is in place. Because the LLLP is so new, its use is not widespread and not all states have adopted laws for the formation of LLLPs. LLLPs are most common in the real estate business, where a group of investors get together and build a project such as a hotel, apartment community, or commercial building. The investors are often more satisfied knowing they are not liable for the partnership’s debt and can only lose what they invested, whereas the general partner who organized the project gets the same peace of mind.

Limited Liability Company (LLC) A limited liability company may be created by one or more individuals who are referred to as members. There is no limitation to the number of members in an LLC. The members choose a name and file the articles of organization with the Secretary of State in the state where the business will be primarily conducted.

An operating agreement outlining responsibilities, voting rights and the management of the LLC should be prepared and signed by all members. The members may contribute money, real or personal property, contracts for services, promissory notes and intellectual property in order to fund the LLC. An LLC can be filed as a Manager Managed LLC or a Member Managed LLC. If the filing party chooses a Manager Managed LLC, they must name the initial Manager of the entity in the Articles of Organization. In the case of a Manager Managed LLC, the management and control lie with the Manager(s). In a Member Managed LLC, the members have total control over the management of the business. Liability is limited to the amount of the capital contribution.

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The LLC does not pay taxes; it is taxed as a partnership. The individual members must report any profit or loss on their income tax. The accounting method should be set up properly for this type of business entity. LLC’s can elect to be taxed as an S-Corporation by filing the proper form with the Internal Revenue Service (IRS Form 8832).

Sole Proprietorship The simplest type of business form is the sole proprietorship. There are few formalities in creating this type of business. Typically, a person who chooses to start a business will obtain the appropriate business licenses in the locality in which it operates using the name of his or her choice. There is no requirement to file documents with the Secretary of State. They only file the appropriate documents in the location where they wish to operate the business. In many jurisdictions, the sole proprietor will obtain a business license, may publish a fictitious name and complete any documents regarding local taxes to which he/she may be subject. There is minimal government regulation or legal requirement.

The sole proprietor has total control of the business, is responsible for all debts and retains all profits.

Any profits are taxed as personal income. The business is not “transferable”; however, the business or its interest could be sold to another individual or business entity.

Entity Formation and Dissolution A paralegal working within a law firm that works with different business entities will be an integral part of the team preparing the legal documents necessary to either create or dissolve the business entity, making sure they are appropriately filed with the Secretary of State or another agency. The paralegal will likely draft the Articles of Incorporation or Dissolution, Bylaws, partnership and/or management agreements and operating documents for the different types of entities and deliver to the attorney for review, approval and execution. The firm may be responsible for preparing employment agreements and contracts, filing tax documents to have the business either recognized or dissolved as a specific type of entity, such as an S-Election or Non-profit Corporation.

Formation As referenced in the sections above, there are certain formalities that must be taken with most of the types of business entities. Sole proprietorships are the least formal business entity and do not require any specific recognition as a business entity. There may be a local requirement to file for a business license - doing business as (DBA), and/or permits depending upon the type business or service being provided. Likewise, a general partnership may also need to file for a business license and/or permits.

In either case, these documents are filed with the local governing body, e.g., town, city, or county where the business is primarily located and conducted. The formalities with respect to either of these types of business entities will be more apt to include any contracts with third parties, tax filings, or other matters of conducting business. A CPA should be consulted so that the owner(s) may be aware of any tax implications or any specific records that should be kept in order to properly file taxes for the type of entity. With respect to a general partnership, the partners should have a written agreement memorializing how business is going to be conducted, as indicated above.

Limited partnerships, limited liability partnerships and corporations must all register with the Secretary of State in the jurisdiction of the primary business. These types of entities should also make sure they conform with any local licensing requirements. For example, if the entity is a professional association - doctors or lawyers - the licensing requirements of the state’s governing body for those professions must be followed, in addition to the manner in which the entity conducts business. Other formalities with respect to the specific types of entities are covered above under each business form.

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Corporations - Closely Held, S Corporations, C Corporations, Publicly Held and NonProfit - typically all follow the same basic process in forming the corporation. The Articles of Incorporation (Articles) must be filed with the Secretary of State. Prior to the filing of the Articles, the paralegal may be responsible for conducting a search and reserving the name for the corporation (this would also be true for the LP, LLC and LLLP). Once a name is reserved with the Secretary of State, the Articles can be prepared and signed by the incorporator(s). They will then be filed with the Secretary of State and any required fees will be paid. Each Secretary of State has specific procedures for filing including the required information. The procedures are governed by State Statutes and must be researched and followed. For Instance, some states require that all directors and only the highestranking officer and Secretary are disclosed upon filing of the Articles. Others only require naming the registered agent and the Directors. At this point, there must be a meeting or resolutions adopted to approve bylaws, elect officers and directors, assign stock, execute operating documents and conduct any lawful business of the corporation. Minutes or resolutions memorializing the initial decisions of the Shareholders and Directors and all subsequent meetings must be made and maintained. The corporation will also need to file the appropriate tax documents with the Internal Revenue Service; a CPA should be consulted to verify and/or prepare the right documents for execution and filing for that specific type of entity.

In the event the corporation is a publicly held corporation, the corporation will need to notify the Securities and Exchange Commission (SEC) and any other agencies that may have a vested interest in the business being conducted by the corporation. The SEC has specific regulations, requirements and documentation that must be filed and/or complied with. The SEC agency regulations should be consulted to ensure that all steps are properly taken by the corporation.

In the event the entity is a publicly held corporation and will be doing business in a state other than the original state of incorporation, that entity will need to register for authority to transact business in the other state and to be recognized as a foreign corporation in other jurisdictions. As indicated above, the Secretary of State will require specific forms and documents to be submitted. The Secretary of State website in that jurisdiction should be consulted for specific filing requirements, fees and documents.

All 50 states, the District of Columbia, Guam, and Puerto Rico have their own incorporation statutes.

A corporation may incorporate in any state it chooses. Over half of the Fortune 100 companies are incorporated in the State of Delaware. Delaware’s Supreme Court is considered the most liberal and influential with regard to corporate governance. Thus, anyone who manages, merges or sues a Delaware corporation is subject to Delaware laws, both statutory and case law. The remainder are registered in the state in which that entity has its principal place of business.

Articles of Incorporation Again, the initial document filed to incorporate is the Articles of Incorporation. The appropriate fees are paid upon filing. In most states, the Articles are filed with the Secretary of State. The Articles must include, at a minimum, the name of the corporation, the name(s) and address(es) of the incorporator(s), the registered agent and his/her address, the purpose of the corporation and the kind, number and face value of stock issued by the corporation.

Stock The corporation must have capital in order to operate. Those funds can be acquired by two methods of financing: debt financing, which refers to loans; and equity financing, which is the selling of shares or an interest in the business, otherwise known as stocks. Stock is defined as the 151

capital that a corporation raises through the sale of shares that entitle the holder(s) to certain rights of ownership. Many publicly held corporations create capital using a combination of these two methods.

The shareholders are the owners of the corporation. They have the right to control the corporation by voting how the corporation is run. They also vote on how ongoing income or dividends will be received. The shareholders will typically receive a pro rata share, based on the percentage of their investment, upon the corporation’s dissolution. The shareholders also elect members who will represent their interests on the Board of Directors. The shareholders who are unable to attend board meetings may also give their proxy to a board member who will vote on their behalf.

As indicated above, the Articles must state the type, number and the value of the shares to be issued by the corporation. The corporation is not required to issue all of the authorized shares immediately. There can be two classes of stock: common stock and preferred stock. A corporation must have at least one class of stock issued that allows the shareholders voting rights, which include the power to elect directors and make other business decisions that affect the corporation. The corporation must also provide a class of stock that will provide that the shareholders receive profits and/or residual assets if the corporation is dissolved.

Common Stock A class of stock that entitles the owner to vote for the corporation’s Board of Directors, to receive dividends and to participate in the net assets upon liquidation of the corporation.

Preferred Stock A class of stock that entitles the owner to receive special preference with regard to either dividends or the distribution of assets.

Common stock has traditionally carried the most rights, as well as the highest risk of loss. A shareholder who owns common stock has the right to vote, the right to receive dividends and the right to receive net assets upon dissolution. An individual owning preferred stock does not typically have the right to vote (or those rights may be limited) and will receive “preference” when dividends are paid. The payment will be in the form of either dividends or assets and will be paid to the preferred shareholder before the common shareholders are paid. Preferred shareholders may convert or exchange their preferred stocks to common stock upon request.

Some corporations will designate only one type of stock. In that event, only common stock will be issued.

A stock is issued at par value, which is defined as the nominal or face value of a stock or bond.

The total par value of the stock initially issued or offered by the corporation is considered the stated capital. During the initial offering, the consideration paid may be in the form of money, property, past services, promissory notes and/or future services. The company may also issue a stock warrant. A stock warrant is a document that authorizes its holder to purchase a stated number of shares at a stated price, usually for a specific period of time. Stock warrants may be freely traded.

A stock option is when an employee is granted the right to purchase shares (or warrants) at a stated price. Those options cannot be traded, but they can be sold back to the corporation. The buyback of shares is governed by the Financial Accounting Board of the SEC, which amended the rules effective July 2005 as a result of Enron and numerous other securities fraud cases.

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A point of clarification: The Chicago Board of Trade operates the world’s first and largest “options” exchange. See http://www.cboe.com/ (last visited June 1, 2012).

Dissolution/Winding Up A partnership may be terminated or “dissolved and wound up.” This process is more simple than it is for a corporation. A partnership can be terminated when one partner wishes to leave the partnership, when the business is sold, the partnership agreement expires or when the business goes bankrupt.

Dissolution of the partnership prevents any new business from taking place. Winding up the business allows the business to finalize all transactions, pay any debts, divide any profits and distribute remaining assets. While the general partnership is not transferable to another, the business or its interest may be sold.

Any limited liability partnership may be terminated or dissolved by agreement of the partners. The “winding up” is fairly informal. Any unfinished transactions will be completed, debts paid, remaining profits are divided, and assets distributed. The IRS should be notified; and, a simple form is typically submitted to the Secretary of State.

Most state statutes provide for a streamlined process of dissolving corporations if the vote to dissolve is unanimous among the shareholders. Typically, a resolution to dissolve or wind up is adopted and approved by the majority - or other percentage specified in the bylaws or by statute - of the shareholders.

Some states require the filing of a notice of intent to dissolve, after which the affairs of the business are “wound up.” Notice must be given to creditors and any franchise and/or contractual obligations must be resolved and taxes paid. Directors have a fiduciary responsibility to pay, discharge or make provisions for all corporate liabilities prior to liquidation and distribution of assets to the shareholders.

The Articles of Dissolution are then filed with the Secretary of State.

Most states provide statutes for a period in which a corporation may be sued on pre-dissolution claims. Post-dissolution claim litigation is often a problem when a product injures an individual after the company has dissolved. In that event, the normal statute of limitations often has expired.

However, if another company purchased assets, including the right to manufacture a product, the claimant may bring a cause of action against the new company under the theory of de facto merger or continuity of enterprise.

The Secretary of State website should be consulted for specific forms, rules, and requirements for winding up or dissolving the particular corporation. The IRS code should also be consulted to assure that the corporation is properly dissolved in order to avoid any adverse tax consequences. If the corporation is a publicly held corporation, the SEC rules should also be followed.

Registering as a Foreign Corporation/Entity (inter-state) If the client has a corporation in one state, but wishes to do business in another state, the client is required to file appropriate documentation to allow the corporation to conduct business on a regular basis. Some jurisdictions refer to this procedure as foreign entity qualification or registering a foreign corporation. The corporation is referred to frequently as a “foreign” corporation because it has originally been qualified to transact business in a different state, thus, the term “foreign.” Registration procedures and fees vary by state; paralegals should look to the appropriate office within the Secretary of State (e.g., Corporation Bureau, Corporation Commission, etc.) for current information.

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In most jurisdictions, registration requires disclosure of the corporate or LLC name, state of organization and the name and address of the registered agent for service in the state for which application is being made. Out of an abundance of caution, it is always wise to check with the Secretary of State to determine availability of the corporate name. If some other corporation or LLC has already acquired the name, this information should be shared with the attorney for advising his/her client and deciding how to proceed.

A decision not to register as a foreign corporation carries unwelcome consequences. For instance, the corporation is not in a position to maintain an action, suit or other court proceeding until it is registered; it can be enjoined by the attorney general from transacting business in the state; and fines and taxes in connection with the initial fees that should have been paid will be assessed.

In the event the corporation will be conducting only a few “isolated transactions” in the state, it may not be appropriate to register as a foreign corporation. This, of course, is a business decision to be made by the client after consulting with attorneys and/or tax advisers. The paralegal may assist by asking the client about the proposed transactions and presenting the attorney with a memo detailing the client’s position as it relates to state registration laws.

Governance There are three groups that have a voice in the operation of a corporation: the shareholders, the Board of Directors and the corporate officers. The shareholders elect the Board of Directors, who is responsible for the policy and management of the corporation. The Board of Directors also elects the officers who carry out the day-to-day operation and policies of the corporation. The state’s statutes, and thus the bylaws of the corporation, outline the officers to be elected (e.g., president, vice president, secretary and treasurer).

Some corporations elect a chief executive officer (CEO) and/or a chief financial officer (CFO) instead of or in addition to the previously listed officers. Additionally, there may be several vice presidents who oversee various functions.

The Officers and Board of Directors have a fiduciary responsibility to the shareholders. The corporate opportunity doctrine, which was established by case law, states that corporate officers, directors and agents cannot take personal advantage of an opportunity that in all fairness should have belonged to the corporation. The RMBCA at §§8.30 and 8.42 provides for the standard of conduct in performance of those duties: 1.

In good faith;

2.

With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and 3.

In a manner he reasonably believes to be in the best interests of the corporation.

A conflict of interest may also occur when an officer or director, who has a personal interest in a matter, enters into a transaction with the corporation. The RMBCA provides governance on defining a conflict of interest for the individual and/or corporation. Additionally, the business judgment rule states that corporate officers and directors are not liable for honest mistakes of business judgment.

Maintaining and Filing Annual Reports, Minutes and Resolutions The paralegal will likely assist with preparing minutes for meetings, director and shareholder meeting notices, resolutions and any other documents required to maintain the corporation’s good standing. If the corporation is publicly held, an experienced paralegal may work with the attorney or within the

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corporation itself to prepare filings required by the Securities and Exchange Commission (SEC), including an annual report on Form 10-K, which must be filed 90 days after the company’s fiscal year ends, and proxy statements, which are official notification to a company’s shareholders of matters to be voted upon at the company’s annual meeting.

The paralegal may also likely prepare draft documents and agreements for review by the attorney for mergers, acquisitions and consolidations of the corporation or other business entity. Additionally, in the case of a corporation, there will be financial documents and disclosures, as well as approvals that must be obtained by the various regulating agencies - both state and federal - which will require vast amounts of records and documentation before the agency(ies) will approve the requested changes.

Maintaining Corporate Trail One of the most important aspects of corporate records is maintaining the corporate trail through careful documentation. The penalties for disregard, carelessness, neglect and/or sloth have the potential of being severe.

The corporate minute book starts with all documents prepared and filed to qualify the corporation to do business in the state of its existence, i.e., articles of incorporation, bylaws, agreements, resolutions, waivers and first minutes. The paralegal should be familiar with his/her state requirements with regard to retention of original minutes, bylaws, etc.

It is the duty of corporate officers, directors and shareholders to be certain that they consult with legal counsel and financial advisers to be certain proper steps are being taken to maintain corporate records. Consultation with accountants will provide guidance in obtaining state and federal employer identification numbers for the purposes of employment taxes. In addition, there is an annual state franchise tax (sometimes referred to as state corporate tax), and there is a requirement for regular filings with the Secretary of State. Accountants will also assist in the preparation of budgets and cash forecast information which will enable the corporation to establish salary and bonus policies. The accountant will also enter upon the books and records of the corporation the receipt of all assets transferred to the corporation in the initial incorporation process and, thereafter, as the case may be. All of this information is to be included in the corporate minutes.

In addition to minutes, there is other documentation to be included in the minute book. For example, once a corporate bank account has been opened, copies of the signature cards should be placed in the minute book immediately after the minutes authorizing the opening of such an account.

Anytime the corporation contemplates a loan, either to or from the corporation, the terms and conditions of such a loan are to be duly authorized by the board of directors. Check the state code to determine whether corporate action is required - prior to the making of such a loan or upon receipt by the corporation. Minutes of such actions should be prepared, executed and placed in the minute book.

All material contracts - including, without limitation, employment, stock purchase, sale and other agreements, profit sharing and pension plans and all contributions thereto during each fiscal year, declarations of salary, bonuses and other fringe benefits, leases, subleases, asset acquisitions and dispositions and loans which are entered into or adopted by the corporation - should first be authorized and approved by appropriate proceedings of the board of directors and duly memorialized in the corporate minutes. When executed, copies of all such documents should be placed in the corporate minute book for purposes of future reference and identification.

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The minutes of directors’ proceedings must be kept current. It is of paramount importance that the corporate trail be maintained carefully, since those records could very well prevent an adverse effect on the rights and/or obligations of the corporation.

Amendments Amendments to the Articles of Incorporation must be made by a majority of stockholders, although some state statutes allow a two-thirds vote, particularly with regard to changing or eliminating the rights of minority shareholders or the rights of non-voting classes. Voting will usually occur by class or voting groups.

The power to make amendments is governed by individual state statute. However, the RMBCA provides “recommended” powers to amend as follows: •

To increase or decrease the number of authorized shares;

•

To exchange, classify, reclassify or cancel shares, whether or not previously issued;

•

To limit or cancel the right of shareholders of a class of shares to receive dividends;

•

To create new classes or shares whether superior or inferior to shares that are outstanding or change designation of shares on the preferences, limitation or rights of classes of shares, whether or not previously issued; and/or

•

To change voting rights of outstanding shares, eliminate the power to vote cumulatively or assign multiple or fractional votes per share, and deny the power to vote entirely to a class of shares, whether or not previously issued.

The Board will usually recommend the adoption of any amendments, mergers, consolidations, sale of assets and/or dissolution that require shareholder approval.

To learn more, review the Sarbanes-Oxley Act of 2002 and/or take a continuing education course regarding this topic. The Act was created because of the numerous corporate fraud cases that were heard by the federal courts in early 2000. Since the law was enacted, CEOs and CFOs have become accountable, having to sign under penalty of imprisonment, that all financial statements and reports are accurate. Corporate accounting firms and their relationships as advisors and auditors to large corporations have come under scrutiny as well. In addition, all corporate financial officers must sign a code of ethics. Some corporations have adopted the code of ethics for all officers and directors of the corporation. A Public Company Accounting Oversight Board was created to regulate accounting firms. The SEC has enacted new regulations giving additional powers to file administrative and civil actions against corporate officers who attempt to defraud the corporation and the shareholders.

Mergers and Consolidations A consolidation occurs when two corporations disappear, and a new corporation is created.

A merger occurs when one corporation supersedes another. If Corporation A and Corporation B merge, Corporation A disappears, and Corporation B survives; Corporation B will assume all assets and liabilities of Corporation A. Shareholders will receive the consideration(s) specified in the merger plan.

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The Justice Department created “Merger Guidelines” in 1968 and carefully scrutinizes mergers of publicly held corporations. The Guidelines were amended in 1984 to include foreign competition. The Herfindahl-Hirschman Index (HHI) is used to decide whether to challenge a merger. The IRS has specific guidelines and has created three classes for reorganization; while the courts also have established three types of reorganization, these are named and categorized differently.

A corporation may be the target of a hostile bid or takeover. A hostile bid is an offer that is opposed by the management of the target company. A tender offer is a public offer made by an individual or corporation directly to the shareholders of the targeted corporation in order to acquire the targeted corporation at a specific price. The bid is usually to gain at least 51% of the shares of the corporation in order to gain control. There are specific rules governing these types of takeovers. The Securities and Exchange Act §§13-14 provide the framework for tender offers and hostile bids.

Likewise, the paralegal will be very involved in dissolving and winding up the business of a corporation which is either being merged or acquired by another corporation or business entity, or which is simply going out of business. He/she will need to assist the attorney in making sure that all business transactions are complete, debts paid and stocks distributed, if applicable.

A paralegal working in this area of law should become familiar with state and federal laws and regulations under which the business entity will operate. He/she should also become familiar with the various IRS regulations that govern the different types of business entities and, in particular, know how to locate the required forms using the appropriate websites and other resources.

It is recommended that a paralegal studying for the PCCE® should also review the Revised Uniform Partnership Act and the Revised Model Business Corporation Act.

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Sample Questions Q:

A joint venture is a: A. relationship or association between two or more people, corporations or agencies for a specific purpose or a limited time B. form of co-ownership of real property in which all owners have equal shares; a tenant may sell interest without consent C. partnership agreement in which members of the company own shares that are transferable, but all goods are held in the name of members D. relationship between two or more persons or businesses in which one person/entity owns the controlling share of the business

A:

(A.) By definition, a joint venture is a relationship between two or more people, corporations, or agencies for a specific purpose or a limited time.

Q:

An interest-bearing document giving evidence of a debt issued by a government body or corporation often designed to take care of a particular financial need, is a: A. stock B. security C. bond D. investment

A:

(C.) By definition, an interest-bearing document giving evidence of a debt issued by a government body or corporation that is sometimes secured by a lien on property and is often designed to take care of a particular financial need is a bond.

Q:

The Sarbanes-Oxley Act of 2002 requires that: A. corporate officials must provide accurate financial statements B. all corporate officers and directors be unscrupulous C. corporate officers and directors delegate to low-level managers D. all corporate officers must sign a code of ethics

A:

(A.) The Sarbanes-Oxley Act of 2002 requires that corporate officials must provide accurate financial statements.

Q:

Corporate employees who are appointed by the board of directors to manage the day-to-day operations of the corporation are the: A. board of directors B. officers C. shareholders D. directors and officers

A:

(B.) Corporate employees who are appointed by the board of directors to manage the day-to- day operations of the corporation are the officers.

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Q:

The type of business entity in which there is the most personal liability is: A. general partnership B. sole proprietorship C. closely held corporation D. publicly held corporation

A:

(B.) The type of business entity in which there is the most personal liability is a sole proprietorship.

Q:

A corporation that is incorporated in the State of Indiana, but that does business in New York is what type of corporation in all states but Indiana?

A. alien B. chartered C. domestic D. foreign

A:

(D.) A corporation that is incorporated in the State of Indiana, but that does business in New York is considered a foreign corporation in all states but Indiana.

Q:

A Subchapter S corporation is what type of business organization?

A. limited liability corporation B. hybrid corporation C. professional liability partnership D. limited liability partnership

A:

(B.) A Subchapter S corporation is a combination of a partnership and corporation and is thus a hybrid.

Q:

Common shareholders elect directors, vote on mergers and other important matters. In exchange common shareholders can/will: A. receive stock dividends B. sign binding contracts C. manage day-to-day activities D. be held financial responsible

A:

(A.) Common shareholders can elect directors, vote on mergers and other important matters and can/will receive stock dividends.

Q:

The SEC is responsible for oversight and regulation of: A. banks and financial institutions B. closely held corporations C. articles of incorporation D. publicly held corporations

A:

(D.) The Securities and Exchange Commission is responsible for the oversight and regulation of publicly held corporations.

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Domain 02: Substantive Areas of Law CONTRACTS

A contract is a written or spoken promise, or a set of promises, that obliges each party to do, or not to do, a certain thing. When a contract is breached/broken, there are many legal remedies to enforce the terms when there is a duty to perform.

Elements of a Valid, Enforceable Contract Typically, in order to be enforceable, a contract must involve the following elements: Offer* The contract involves an offer (or more than one offer), to another party, who accepts the offer. For example, in a contract for the sale of a car, the seller may offer the car to the buyer for $800.00. The buyer’s acceptance of that offer is a necessary part of creating a binding contract for the sale of the car. In order to be valid, the parties to a contract must exchange something of value to each other. In the case of the sale of a car, the buyer receives something of value in the form of the car, and the seller receives money. Making an offer, in a legal sense, is a serious undertaking. *A counteroffer is not an acceptance and will typically be treated as a rejection of the offer. For example, if the buyer counteroffers to purchase the car for $500.00, that typically counts as a rejection of the original offer of sale. If the seller accepts the counteroffer, a contract may be completed.

However, if the seller rejects the counteroffer, the buyer will not ordinarily be entitled to enforce the prior $800.00 price if the seller decides either to raise the price or to sell the car to someone else.

Duration of Offer Absent express language and statutory control, courts usually give an offer a reasonable period of viability. An offer will not last forever.

Termination or Revocation of Offer An offer may be revoked by the party making the offer. A revocation is possible any time before acceptance has taken place. An offer may lapse due to time, rejection, termination by offeree or death/disability of the offeree.

Irrevocable Offer An offer may be irrevocable either in a legal or equitable sense. When a party detrimentally relies on an offer by spending money or incurring other economic expenses, the offerer, by nature of his/her promise, may have waived the right to withdraw the offer.

Acceptance Offers do not create binding contracts, but acceptances to offers do. The role of acceptance in the creation of a contract cannot be overstated. Only when accepted is the offer converted into a binding contract. The acceptance can be oral, in writing or by action, so care needs to be taken by the offeree.

Offer and acceptance is referred to as a “meeting of the minds.”

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Consideration Consideration is something of value given by both parties to a contract that induces them to enter into the agreement to exchange mutual performances. Consideration is an essential element for the formation of a contract. It may consist of a promise to perform a desired act or a promise to refrain from doing an act that one is legally entitled to do.

Competence/Capacity A person must have the legal ability to enter into a contract in the first place. When a party does not understand the nature and consequences of an agreement that they have entered, the law treats that party as lacking mental capacity to form a binding contract. A natural person who enters a contract possesses complete legal capacity to be held liable for the duties he or she agrees to undertake, unless the person is a minor, mentally incapacitated, or intoxicated. A minor is defined as a person under the age of 18 or 21, depending on the jurisdiction. A contract made by a minor is voidable at the minor’s discretion, meaning that the contract is valid and enforceable until the minor takes some affirmative act to disavow the contract.

Mutual Consent Both parties must be bound to perform their obligations or the law will treat the agreement as if neither party is bound to perform. When an offeree and offeror exchange promises to perform, one party may not be given the absolute and unlimited right to cancel the contract. Such arrangements attempt to allow one party to perform at their leisure, while ostensibly not relieving the other party of their obligations to perform.

Writing Requirement Not every contract need be in writing to be valid and binding on both parties. But nearly every state legislature has enacted a body of law that identifies certain types of contracts that must be in writing to be enforceable.

Types of Contracts Everyone enters into a variety of contracts on a routine basis. These are the four basic types of contracts: Unilateral One party makes a promise to do something in return for a performed act. A good example is a reward for a lost pet.

Bilateral Both parties make a promise. A good example is the sale of a home.

Express Written or spoken expression indicating a desire to enter into a contractual relationship. A good example is a job offer.

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Implied Created by actions or gestures of the parties involved. If a person accepts a benefit, they may be held responsible for payment. A good example is a person who presents at a barber/beauty shop for a haircut.

Defenses There are many ways in which a contract can be breached. Examples of common defenses are: Capacity In order to be bound by a contract, a person must have the legal ability to enter into a contract in the first place. This legal ability is called capacity to contract. A person who is unable, due to age or mental impairment, to understand what they are doing when they sign a contract may lack capacity to contract.

For example, a person under legal guardianship due to a mental defect completely lacks the capacity to contract. Any contract signed by that person is void.

Duress Duress consists of any wrongful act that coerces another person to enter into a contract that they would not have entered into voluntarily. Blackmail, physical violence, a show of force and threats to institute legal proceedings in an abusive manner may all constitute sufficient duress to void a contract.

Undue Influence Undue influence occurs when one party exercises such control over a second party as to overcome the independent judgment and free will of the second party. In reviewing claims of undue influence, courts look to see whether the plaintiff preyed on or exploited a known psychological or physical weakness when securing the defendant’s assent to a contract.

Impossibility/Impracticability Contract duties may be excused by an event if the contract was made on the assumption that this event would not occur. For example: Death or disability of one whose existence is necessary for the performance of the contract; Destruction, without the fault of the promisor, of the subject matter of the contract or a thing necessary for the performance of the contract; Government action that prohibits the performance of the contract.

Intent Contract formation requires mutual intent, which means the parties must agree to the same terms.

Courts analyze the intent of the parties using objective and subjective intent. Objective intent exists if a reasonable person would understand from a party’s words or actions that he/she intended to form a contract. Subjective intent addresses the party’s personal intent. Regardless of objective intent, there is no contract absent subjective intent.

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Mistake Ordinarily, to constitute a valid defense in an action for breach of contract, the mistake must be a mutual one made by all of the parties to the contract. However, when the mistake is obvious from the face of the contract, knowledge of the mistake will be imputed to each party.

Vagueness/Ambiguity When a contract is signed without clearly enforceable terms or language, and if it cannot be enforced on the party with reasonable clarity, the contract is said to be vague/ambiguous.

Fraud Fraud occurs when one party intentionally deceives another party as to the nature and consequences of a contract, and the deceived party is injured as a result. In most cases, fraud requires an affirmative act, such as a willful misrepresentation or concealment of a material fact.

Statute of Frauds The statute of frauds refers to the requirement that certain kinds of contracts must be in writing and signed. Traditionally, the statute of frauds requires a signed writing in the following circumstances: contracts in consideration of marriage. This provision covers prenuptial agreements and contracts which cannot be performed within one year. However, contracts of indefinite duration do not fall under the statute of frauds regardless of how long the performance actually takes, as in contracts for the transfer of an interest in land. This applies not only to a contract to sell land but also to any other contract in which land or an interest in it is disposed of, such as the grant of a mortgage or an easement; contracts by the executor of a will to pay a debt of the estate with his/her own money; contracts for the sale of goods involving a purchase price of $500 or more; or contracts in which one party becomes a surety (acts as guarantor) for another party’s debt or other obligation.

Unconscionability Unconscionable contracts are those that violate public policy by being so unjust as to offend the court’s sense of fairness. Sometimes called “contracts against public policy,” unconscionable contracts usually result from a gross disparity in the parties’ bargaining power.

Discharge of Obligations There are four key elements to satisfy the terms of a contract: Performance The general rule is that the parties must perform precisely all the terms of the contract in order to discharge their obligations.

Agreement The general rule is that what has been created by agreement may be extinguished by agreement.

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Breach A failure to perform the terms of a contract constitutes a breach. A breach which is serious enough to give the innocent party this option of treating the contract as discharged can occur in one of two ways: (1) either one party may show by express words or by implications from his/her conduct at some time before performance is due that he/she does not intend to observe his/her obligations under the contract (anticipatory breach); or (2) they may in fact break a condition or otherwise break the contract in such a way that it amounts to a substantial failure of consideration.

Frustration of Purpose The doctrine of frustration operates in situations where it is established that due to subsequent change in circumstances, the contract is rendered impossible to perform, or it has become deprived of its commercial purpose by an event not due to the act or default of either party.

Remedies Several rights are available to the holder of a contract when there is a breach: Expectation Damages This is a form of damages available as recourse to a breached contract. When a contracting party fails to fulfill his/her contractual duties, which causes losses to the other party, the party in breach can be liable for the losses of the other party. Losses that relate to the consequences of breach are expectation damages, because the purpose of this type of remedy is to put the other party/plaintiff in the position he/she would have been in had the contract been fulfilled.

Reliance Damages The measure of compensation given to a person who suffered an economic harm for acting in reliance on a party who failed to fulfill his/her obligation.

Restitution Restores the benefit conferred to the non-breaching party (the plaintiff). Simply put, the plaintiff will get the value of whatever was conferred to the defendant when there was a contract.

Liquidated Damages Damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach (e.g., late performance) (also referred to as liquidated and ascertained damages).

Punitive Damages Damages that punish the wrongdoer in a breach of contract lawsuit. These are not based on actual economic losses as in compensatory damages. Punitive damages are designed to make an example out of the party who broke the contract and punish them for their wrongful conduct. One cannot typically recover punitive damages in a contract lawsuit unless the conduct constituting the breach is also a tort.

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Specific Performance This occurs when a court orders the party who broke the contract to perform his/her obligations as agreed in the contract.

Mitigation A requirement that one injured by another’s breach of an agreement employ reasonable diligence and care to avoid aggravating the injury or increasing the damages.

Reformation When the contract is officially and legally modified or revised in order to match the actual agreement as understood by the parties in the original situation.

Uniform Commercial Code The Uniform Commercial Code (UCC or “the Code”) is a general and inclusive group of laws adopted, at least partially, by all the states to further uniformity and fair dealing in business and commercial transactions. The UCC is divided into nine articles with I, II, III, and IX dealing with contracts.

Article I of the UCC Article I of the UCC imposes three obligations upon contracting parties. First, parties must act in good faith; every contract or duty within the Code imposes an obligation of good faith within its performance and enforcement. Secondly, parties must perform within a reasonable time; whether a time for taking an action required by the Code is reasonable depends on the nature, purpose and circumstances of the action. Lastly, parties must perform according to past business dealings and practices; a “course of dealing” is a sequence of conduct concerning previous transactions between the parties to a particular transaction that is to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.

Article II of the UCC Article II of the UCC deals with transactions involving the sale of goods over $500.00. Article II only covers the sale of goods. This is important to keep in mind. Goods include all items that can be both identifiable and moveable at the time of the sale. Article II does not cover transactions involving service contracts. In addition, the sale of real estate is not covered by Article II, but rather, by Article IX of the Code. For example, the sale of an automobile or a computer would be covered by Article II. However, the sale of insurance, a membership in a health club or a contract with a painter to paint your house would not be covered. The sale of your house would also not be covered. A house certainly is a “good,” but the sale of a house involves the sale of land. Under the UCC, any transaction involving the transfer of land is covered by Article IX of the code. Article II applies to all persons and entities.

Article III of the UCC Article III of the UCC deals with negotiable instruments and transactions involving negotiable instruments. A negotiable instrument is a check, promissory note, bill of exchange, security or any document representing money payable which can be transferred to another by handing it over (delivery) and/or endorsing it (signing one’s name on the back either with no instructions or directing it to another). A negotiable instrument is a contract and subject to the rules governing contract law.

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However, a negotiable instrument may be distinguished from an ordinary contract by the fact that a negotiable instrument may be written in a way that makes it transferable.

Article IX of the UCC Article IX of the UCC deals with secured transactions where security interests are taken on personal property. Article IX regulates creation and enforcement of security interests in movable property, intangible property and fixtures. Transactions where security interests are taken on real property are regulated not by Article IX, but by real property laws that vary among jurisdictions. However, a secured interest in a promissory note that is secured by a deed of trust on real property is regulated by Article IX. This latter distinction is important in the context of the sale and purchase of promissory notes secured by real property, where the purchaser does not have enough cash on hand and needs to obtain his/her own financing (which is governed by Article IX).

In the event of a secured transaction where security interests are taken on personal property, the Secured Party files a Financing Statement, generally with the office of the Secretary of State in the jurisdiction where the debtor resides or the transaction took place.

Secured Party A Secured Party is: •

a person in whose favor a security interest is created or provided for under a security agreement, whether or not any obligation to be secured is outstanding;

•

a person that holds an agricultural lien;

•

a consignor;

•

a person to which accounts, chattel paper, payment intangibles, or promissory notes have been sold;

•

a trustee, indenture trustee, agent, collateral agent, or other representative in whose favor a security interest or agricultural lien is created or provided for; or

•

a person that holds a security interest

Financing Statement A Financing Statement is a record or records composed of an initial financing statement and any filed record relating to the initial financing statement (UCC-1). There can also be a “Fixture Filing” which is a financial statement covering goods that are to become fixtures. A Secured Party may add or delete collateral covered by, continue or terminate the effectiveness of, or otherwise amend the information provided in, a financing statement by filing an amendment that (UCC-3): 1. identifies, by its file number, the initial financing statement to which the amendment relates; and 2. if the amendment relates to an initial financing statement filed [or recorded] in a filing office.

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An amendment doesn’t typically extend the period of effectiveness of the Financing Statement.

Financing Statements are effective for a period of 5 years after the date of filing unless terminated prior to the expiration.

Termination Statement A Termination Statement means an amendment of a financing statement which: 1. identifies, by its file number, the initial financing statement to which it relates; and 2. indicates either that it is a termination statement or that the identified financing statement is no longer effective.

Upon the filing of a termination statement with the filing office, the financing statement to which the termination statement relates ceases to be effective.

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Sample Questions

Q:

Forcing a party to enter into a contract under fear of threats is called: A. deception B. undue influence C. duress D. novation

A:

(C.) Duress is the correct answer. In order for there to be a valid contract, the parties must act freely. If one of the parties is forced to make the contract by violence or the threat of violence, that is duress, and renders the contract voidable.

Q:

Michael is contemplating entering into the following contracts. Under the “Statute of Frauds,” which of these must be in writing: A. the sale of horse for $350.00 B. an agreement to mow his neighbor’s lawn for $550.00 C. a lease on an adjoining property for 6 months D. an easement on an adjoining property for $5,000.00

A:

(D.) An easement on an adjoining property for $5,000.00 is the correct answer.

Q:

Donna receives a $2,000.00 doctor bill. After talking with the doctor, they agree that Donna will only pay $1,200.00. When the debt is paid, this will be a(n): A. novation B. modification C. delegation D. accord and satisfaction

A:

(D.) Accord and satisfaction is the correct answer: Payment of money or other valuable consideration (usually less than the amount owed) in exchange for extinguishment of a debt.

There must be an express or implied agreement that accepting the smaller sum discharges the obligation to pay the larger sum.

Q:

Dierks entered into an agreement to buy a new toolbox from Snap-On tools. In order to protect its interest in the tools, Snap-On filed a with the Secretary of State: A. license B. easement C. UCC Financing Statement D. all of the above

A:

(C.) A Financing Statement is a record or records composed of an initial financing statement and any filed record relating to the initial financing statement (UCC-1). There can also be a “Fixture Filing” which is a financial statement covering goods that are to become fixtures. A Secured 168

Party may add or delete collateral.

Q:

Once Dierks pays off his debt to Snap-On, what is Snap-On required to file to release his obligation for the debt?

A. continuation statement B. termination statement C. initial statement D. lease termination

A:

(B.) A termination statement is an amendment of a financing statement which: (i) identifies, by its file number, the initial financing statement to which it relates; and, (ii) indicates either that it is a termination statement or that the identified financing statement is no longer effective. Upon the filing of a termination statement with the filing office, the financing statement to which the termination statement relates ceases to be effective.

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Domain 02: Substantive Areas of Law CIVIL LITIGATION Civil Litigation is the vehicle by which private disputes can be resolved through the court system. This process can be long and arduous; most of the work, including the discovery process, is done outside the courtroom. Often during the course of the litigation, the parties resolve their differences and reach a settlement of the dispute. However, if no settlement is reached, the matter will proceed to trial and will be decided by a judge or jury.

Filing a Lawsuit Jurisdiction – Venue Prior to filing an action with the court, the proper jurisdiction and venue must be determined.

Jurisdiction refers to the authority the court must have in order to hear a matter. Jurisdiction is proper if the court meets the jurisdictional requirements. To do so, the court must have subject matter jurisdiction as well as personal jurisdiction, in rem jurisdiction or quasi in rem jurisdiction. If a court does not have subject matter jurisdiction, any judgment rendered by that court is void and unenforceable. Federal courts, under federal statutes, have subject matter jurisdiction over matters involving a treaty, bankruptcy, copyright, some discrimination matters, maritime, patent issues, federal constitutional issues, actions where the U.S. government is a party and cases involving diversity of citizenship. Diversity of Citizenship (28 U.S.C. § 1332) requires that the plaintiff and defendant are not residents of the same state, and, if the case is a claim for money damages, the damages must exceed $75,000.00.

In addition to being required to have subject matter jurisdiction, the court must also have personal jurisdiction, except in diversity of citizenship cases. Personal jurisdiction is proper if the defendant voluntarily submits to the court’s jurisdiction or if the defendant resides within the state where the court is located. If the defendant does not reside within the state, then the court may be able to exercise personal jurisdiction through the long-arm statute.

Other types of jurisdiction, such as in rem jurisdiction or quasi in rem jurisdiction, exist when the subject of the lawsuit involves property located within that state. The difference is that in the situation of quasi in rem jurisdiction, the plaintiff is required to satisfy any judgment from the subject property. Whether personal jurisdiction, in rem jurisdiction or quasi in rem jurisdiction, the exercise of jurisdiction must be fair and the defendant must receive proper notice of the action.

Venue relates to geographic location. In federal courts, venue is usually decided based upon where the defendant resides or where the cause of action arose. If the case involves diversity of citizenship or if the U.S. government is a party, venue can also be where the plaintiff resides.

Often, for the sake of a fair trial or for the sake of convenience to the parties, a change of venue is sought. This is done by filing a motion for change of venue with the court where the lawsuit was originally filed.

Questions concerning jurisdiction and venue are procedural questions and are answered by the Federal Rules of Civil Procedure. Many courts also adopt local rules. Prior to filing an action, the litigation paralegal must review both the Federal Rules of Civil Procedure and the local rules.

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These rules provide answers concerning what types of documents are to be filed with the court, specified time frames for filing and other important requirements. Although court rules vary from state to state, the basic civil litigation process is similar throughout the United States.

Initial Case The lawsuit commences when a complaint or petition is filed with the court. The complaint or petition is the initial pleading and includes the following: •

names the parties of the action and describes the capacity of each;

•

states that the court in which plaintiff is filing the action has jurisdiction and is the proper venue;

•

states facts and allegations concerning the claim;

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includes a prayer for relief; and

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requests a jury trial, if applicable.

Complaints must be verified, i.e., substantiated by oath. Federal rules state that an attorney’s signature constitutes verification of a complaint. Some jurisdictions require that complaints and certain petitions be verified via statement signed by the plaintiff under penalty of perjury.

The action must be filed within the time allowed under the statute of limitations. Statutes of limitation are set forth in the federal and state codes, and can usually be calculated quite easily.

Statutes of limitation differ from state to state and also differ based on the type of case. For example, a fraud case may allow an injured party five years from the time they know, or should have known, about the perpetrated fraud to file an action; but, a negligence action, such as an automobile accident, may only allow two years from the date of the accident. Obviously, the expiration date is easy to calculate with regard to the accident since the date of occurrence is actually known. However, in the case of a fraud action where the date is calculated based on the date the plaintiff “knew or should have known,” this is not a date certain and is more difficult to prove.

Sometimes other reasons or events cause the time to toll (extend). For example, the time for filing an action relating to an injury caused to a child may be tolled until a time period after the child reaches an age of majority. Another event that can toll a statute of limitations is when a person is “beyond the seas.” Statutes of limitation vary by state according to case type (e.g., personal injury, fraud, libel and contracts), so it is important that the paralegal always checks the state’s rules in order to accurately calculate the expiration date. Failure to timely file an action can result in the court’s dismissal of your client’s action and a malpractice action against your attorney and/or law firm.

There are also cases in which the plaintiff may make a claim for equitable relief rather than a monetary claim. Equitable relief is a request for just, fair and right relief for the situation at issue.

Some types of equitable relief include declaratory relief (the court defines the rights and/or obligations of the parties), injunctive relief (the court orders a person to do or refrain from doing a particular action), quiet title (clearing title of a property), rescission (voiding a contract), specific performance (requiring a party to do exactly what was agreed to) and temporary restraining order (TRO) (a person is ordered to refrain from taking a certain action until a full hearing is held and

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the matter ruled upon). If too much time elapses, the defendant can claim the doctrine of laches as an equitable defense even though the statute of limitations has not expired. Laches is the legal principle that a plaintiff has waited too long to bring his/her claim and that such delay has prejudiced the defendant.

After the complaint or petition is filed with the court, a summons must be served upon the defendant, together with the complaint or petition. These are usually served by a process server, such as a marshal or sheriff or other designated law enforcement officer. The process server provides a proof of service statement, which is an affidavit stating that these documents have been delivered to the defendant and also stating when, where, how and to whom the papers were served. The proof of service is subsequently filed with the court. Sometimes the defendant’s counsel will agree to accept service on behalf of the defendant so that a process server is not needed. The procedure of serving the pleadings is referred to as service of process. See also, “Document Production and Control,” below.

Once service has been effected upon the defendant, the Federal Rules of Civil Procedure provide that the defendant must file his/her answer within a designated period of time, which is usually 20 days. Generally, an extension of time can be obtained from the plaintiff’s counsel if needed. In some courts, the agreed upon extension must be approved by the court. If plaintiff’s counsel is unwilling to agree to an extension of time, defendant’s counsel may make a formal request by filing a motion to extend time with the court. The motion must explain why additional time is needed and must be served upon plaintiff’s counsel. Sometimes the motion is set for hearing before the court, at which time the court will allow or disallow the extension of time. Often the court will rule on the motion without a hearing.

The defendant’s answer may include a general denial of all allegations, specific denials to each allegation and affirmative defenses. A general denial declares all allegations stated in the complaint, including the allegations concerning jurisdiction and venue, untrue. A specific denial responds to a certain allegation in the complaint. An affirmative defense is a fact raised by the defendant which constitutes a defense to the complaint. Affirmative defenses must be stated in the defendant’s answer, or they are deemed waived. The defendant may also file a motion to dismiss requesting the court to close the case. The motion to dismiss may be set for hearing; if the court denies the motion, the defendant will be required to file an answer. If the defendant fails to timely file an answer, he/she is in default, and the plaintiff can then petition the court for a default judgment. The default judgment may provide for a monetary award and/or other relief sought by the plaintiff.

Parties The complaint or petition is filed by the attorney for the plaintiff, who is the person or entity bringing the action. The complaint must be signed by the client’s attorney and is never signed by a paralegal or other non-lawyer. The lawsuit is filed against the defendant, the person or entity against whom the action is brought. The plaintiff and defendant are referred to as the parties to the action. Trustees and executors to estates can be named as plaintiffs in their fiduciary capacity, even though they are not actually bringing the action on their own behalf. It is often the paralegal’s duty to identify and locate the defendants for the purpose of serving the lawsuit.

Discovery If the defendant timely responds to the complaint/petition filed against him/her, then no default occurs and no default judgment is entered. In this case, the litigation moves forward to the next stage, called

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the discovery period. During this time, the parties use the various avenues provided under the Federal Rules of Civil Procedure to learn more facts about the case and, specifically, to learn more about the opponent’s case. Rule 26 of the Federal Rules of Civil Procedure requires certain disclosures without formal requests. The remaining discovery process, which is limited by the rules, is conducted through formal requests and exchanges of information between the parties and by gathering information from non-parties as well. Oftentimes, counsel finds its opponent to be less than cooperative during the discovery process, which results in the filing of motions to compel and additional court hearings in order to obtain relevant, non-privileged information. These additional efforts result in delays and more attorney and paralegal involvement, which results in more fees for the client. Motions to compel discovery responses should always include a request for fees and costs; many courts will award a recovery of the additional fees and costs for egregious delays caused by the opposing party. Rules 16, 26 through 37 and 45 of the Federal Rules of Civil Procedure define the allowed procedures and process of the discovery period. However, always remember to check the Local Rules for the subject jurisdiction for additional discovery planning instructions.

Initial Disclosures Initial Disclosures occur after the parties have their initial conferral about discovery within 21 days of the Rule 16 of the Federal Rules of Civil Procedure scheduling conference. At this initial conferral, the parties will attempt to stipulate to the form, scope and cost of production. The parties will exchange their initial disclosures at or within 14 days following this conferral.

Initial disclosures include providing the other party with the name, address and telephone number of each individual likely to have discoverable information, excluding witnesses solely for impeachment purposes. Parties must also exchange a description and location of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, (again excluding witnesses solely for impeachment purposes).

Rule 26 of the Federal Rules of Civil Procedure also requires initial disclosures for damages and insurance information. There are types of proceedings exempt from these initial disclosures pursuant to Rule 26 Section (1)(b) of the Federal Rules of Civil Procedure, or as otherwise stipulated or ordered by the court. Initial disclosures must be based on information reasonably available at the time. A party may not avoid initial disclosures because they are still investigating a matter, or because the other party failed to make its disclosures.

Interrogatories Interrogatories are written questions which a party is required to answer under oath. Unless stipulated between the parties or ordered by the court, no more than 25 interrogatories, including subparts, are permitted. See Rule 33 of the Federal Rules of Civil Procedure. Specifically, subsection (d) of Rule 33 allows a party to produce business records, including electronically stored information (ESI), if those documents provide an answer to the interrogatory. The responding party may be required to provide technical support, information, software applications, or other assistance to ensure the interrogating party has reasonable access and information about the ESI that is responsive to their question(s).

Request/Notice to Produce A Request for Production of Documents (RFP) is made to a party to the lawsuit, wherein the requesting party seeks documents, electronically stored information, inspections of places or

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documents, and/or any other tangible evidence relating to the action. See Rule 34 of the Federal Rules of Civil Procedure. A request for production should be served subsequent to the Rule 26 disclosures and subsequent to the initial conference of the parties (Rule 26(f)). The meet and confer (initial conference) will provide counsel with information that will allow him/her to prepare the request for production with particularity.

Requests for Admissions The purpose of serving a Request for Admissions (RFA) on the opposing party is to request him/her to admit to the truthfulness of a fact or opinion and/or to authenticate the genuineness of a document. Requests for Admission cannot be served on a nonparty; this discovery tool can be served only upon parties to the action. The party upon which the request is served must respond within 30 days of service. Rule 36 of the Federal Rules of Civil Procedure sets forth the requirements for responding to a request for admission. Failure to comply with those requirements and/or failure to deny any request for admission deems the admission as admitted.

See Rule 36 of the Federal Rules of Civil Procedure. Also, Rule 26(d) states that the request for admission is to be served after the parties confer.

Expert Disclosures Unless otherwise stipulated or ordered by the court, parties must disclose experts who may present evidence supporting claims or defenses, at least 90 days before the trial date. A party may disclose a rebuttal expert or supplemental disclosures as allowed by FRCP 26.

Depositions A Deposition is the recording of pre-trial testimony of a witness under oath before a court reporter. If the deponent is called at trial, the deposition testimony can be used to impeach the witness. Depositions may be noticed if the deponent is a party to the matter, or is a cooperative third party. If an independent witness is reluctant to testify, a subpoena may be served as a command to appear, and bring requested documents if applicable. The testimony may be admissible at trial for purposes of contradicting or impeaching testimony, party admissions, unavailable witnesses, or as otherwise stipulated or ordered by the court. See Rules 27–32 of the Federal Rules of Civil Procedure.

Third-Party Discovery A person or entity other than the plaintiff or defendant who may have information concerning the lawsuit is known as a third party. A third party is a nonparty and has no legal interest in the lawsuit. However, the federal rules provide that third parties can be subpoenaed to produce documents and/or to appear for deposition in order for the parties to obtain documents or other evidence, information and/or testimony relevant to the pending action. Before seeking information from a third party, the plaintiff or defendant must notify all parties to the action that he/she intends to subpoena a third party and must include a list of the information or tangible evidence sought. Upon such notification, the other party(ies) can object.

If an objection is filed, a hearing is held for the court to determine whether the third party must produce documents and/or appear for deposition. If no objection is filed, the subpoena, along with the list of items sought, must be served upon the third party. The third party may then file a motion for protective order. Ultimately, if the court determines that the third party must produce

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information and documents and/or appear for deposition, the third party can be held in contempt if he/she fails to obey the court’s order. See Rule 45 of the Federal Rules of Civil Procedure.

E-Discovery E-Discovery, or electronic discovery, refers to the process of discovery in litigation that is carried out in electronic formats. It involves what is referred to as electronically stored information (ESI).

Examples of types and sources of ESI include emails, instant messages, mobile device data, servers, external storage devices, data stored in the cloud, back-up systems, voicemail, videos, laptops, accounting databases, CAD/CAM files, spreadsheets, presentations, and all electronically prepared documents. See FRCP 34. Also, included in e-Discovery is metadata which is potentially discoverable data that provides additional information about electronic documents, like date created, date modified, author, relationships to other documents (i.e., email attachments). The revisions made to civil federal rules to include “e-discovery” at FRCP 16, 26, 33, 34, 37, 45 and FRE 502 and 910.

A party should specify the format in which the electronically stored information (ESI) is to be produced. Rule 34(a) clearly defines documents and ESI as “writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained.” The rule applies to documents and ESI in the party’s “custody, control, or possession” and, additionally, allows the requesting party to inspect and copy the documents and ESI. The ABA Model Rule 1.1 was amended in 2012 to add, “including the benefits and risks associated with relevant technology” a lawyer’s competency requirements.

Advancements in technology, proper and timely preservation, and oversight and financial management of collections, processing and production of ESI within a party’s custody, control or possession, are all part of ethical discovery duties.

Although ESI increased the volume of discovery, the goas remain the same as the discovery process for paper documents: 1) ethically meet discovery obligations, and 2) identify the collection and production of information potentially relevant to claims in case. The FRCP, FRE and the ABA Model Rules of Professional Conduct are a guide to complying with e-discovery obligations, just as they layout the requirements for paper production. In most cases, complying with these guidelines will limit cost of e-discovery. Also, do not forget rules that do not specifically mention e-discovery, but still apply to obligations for handling ESI. For example, FRCP 1 is a good place to start when tackling e-discovery tasks to determine what is reasonable and necessary: “These rules govern the procedure in all civil actions and proceedings in the United Sates District courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action and proceeding.” Rule 1. Scope and Purpose, Federal Rules of Civil Procedure The American Bar Association (ABA) and the courts consistently agree that an e-discovery and evidence management plan is necessary for discovery compliance. A e-discovery plan that is both defensible and defendable should include some legal direction, management and oversight of the following areas: identification, preservation, collection, processing, review, analysis and production. Many of these steps may be repeated several times throughout the life of a case.

However, the first two, identification and preservation of potentially relevant ESI, should be properly completed when a party knew, or should of known, that litigation was reasonably foreseeable. Do not wait until a client received a demand letter to begin inquiries about where and 175

how client information is stored. Preserving ESI (including metadata) as early as reasonably to possible protect against destruction or altercation is necessary to defend spoliation and sanction claims.

Metadata is data about electronic data like date created, author, document source and date last modified. If you .pdf an email or excel spreadsheet, you are overriding part of the discoverable data about that electronic document. Just like you would not cut off the date while making a photocopy of a paper letter, you should not do anything to remove a metadata date or other description from an electronic document. Failure to preserve, altering or withholding ESI are all sanctionable discovery defenses.

Do not be overwhelmed by the discovery obligations and benefit-cost analysis of collection, processing, review, analysis and production of ESI. The case law supports that one element should not be weighed more important than another. [insert 2-3 case citations?] Do not be overwhelmed by the common but industry specific terms and narratives in the world of ediscovery like, forensic collection, de-Nisting, Technology Assisted Review (TAR), hash value, or native format. There are many reliable sources online outside of the FRCP to provide you with relevant guidance on ediscovery terms you should know, ediscovery laws, best practices, ethics, recent case law review and AI (artificial intelligence like TAR and predictive coding). The ABA recommends continuous legal education on this constantly evolving matter and endorses excellent e-discovery resources. Visit www.americanbar.org for information on the ABA’s Legal Technology Resource Center, ABA’s affiliate collaborates the Associated of Certified EDiscovery Specialists (ACEDS) and Ralph Losey’s e-discovery materials, with free training at www.e-discoveryteamtraining.com,or materials and guidelines form the Sedona Conferences.

Document Production and Control Rule 36 of the Federal Rules of Civil Procedure governs the production of documents, electronically stored information (ESI) and tangible things, or entering onto land for inspection and other purposes.

The party on whom production requests are served must respond within 30 days. The responding party must produce documents as they are kept in the usual course of business, or must organize and label them in accordance with the categories in the requests for production. If a request for production does not specify a form for producing ESI, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form; but need not produce the same ESI in more than one form. A responding party is only required to produce documents, ESI and other materials that are within that party’s possession or control.

Some requests for production may seek documents and/or materials that the responding party believes are confidential, in which case a request for a protective order, or confidentiality order, may be made.

If the parties can agree on the language for the protective order, there may not be a need to file a formal motion with the court. However, if the requesting party is unwilling to agree to a protective order, or the parties disagree on the parameters, a motion must be filed asking that the court rule on the specifics. Documents and other materials produced in accordance with a protective order will typically include either a watermark or footer labeling the documents with the case name and the fact that it is protected. In some cases, the requesting party will be required to return or destroy the documents at the conclusion of the lawsuit.

Service of Process Service of process is the procedure used to give legal notice to a person or entity (such as a defendant or deponent) of a lawsuit, legally required appearance, eviction or other law-related

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event, by delivering copies of legal documents such as a summons, complaint, subpoena, rule/order to show cause, notice to quit the premises and certain other documents. Service of process may be accomplished by: •

Personal delivery of the document(s) to the defendant or other person to whom the documents are directed;

•

Abode service, accomplished by leaving the documents at the last known residence of the defendant or other recipient;

•

Substituted service, which includes leaving the documents with an adult resident of the home, with an employee with management duties at a business office, or with a designated “agent for acceptance of service” (which information is usually on file with the state’s Secretary of State), or, in some cases, by posting in a prominent place followed by mailing copies by certified mail to the opposing party;

•

Service by publication, used in cases of absent or unknown defendants, typically requiring a court order allowing service by publication in a newspaper; or

•

Service by certified mail to the defendant, authorized by statute in some jurisdictions under specific circumstances, often also involving service on a designated state agency.

Some jurisdictions may allow voluntary acceptance of service, also called a waiver of service, as a substitute for personal service. In those instances, the served party agrees to voluntarily acknowledge receipt of the complaint or petition without the need for personal service.

Acceptance or waiver of service is encouraged by some court systems, especially U.S. federal courts. Under Fed. R. Civ. P. 4(d)(2), when a defendant refuses to waive service “without good cause,” the defendant can be held liable for the cost of personal service.

Third-Party Actions There are several types of third-party actions. The most common type of third-party action occurs in a civil lawsuit when a defendant brings a third party into a lawsuit because that party may be liable for all, or part of, the damages that may be awarded to the plaintiff.

Less common is the use of the term “third-party action,” when a separate lawsuit is brought against a third party. For example, a third-party action can sometimes be brought when an employee is injured at work. In most states, an employee is prohibited from suing his/her employer, and instead files a claim for and receives workers’ compensation benefits. In circumstances where the employee’s injury is caused: (1) by a defective piece of equipment at work, then the employee may also be able to bring an action against the third-party equipment manufacturer; or (2) by a fellow employee driving a vehicle in which the employee is a passenger in the course of his/her employment, then the employee may also be able to bring an action against the third-party fellow employee.

Entering and Enforcing a Judgment In order to start enforcing a judgment, the judgment must be “entered.” A judgment is entered when the clerk of the court signs and files the judgment. The person awarded a judgment is called a judgment creditor; the person who owes the money awarded is the judgment debtor. Enforcement options include wage or bank account garnishment, levying on personal property and entering a lien or levy on real property: 177

•

A wage garnishment - also known as a wage attachment, wage execution or attachment of earnings order - is served on the judgment debtor’s employer. The availability of this remedy and the percentage that can be withheld from the judgment debtor’s wages, if available, are dependent upon the laws of the state in which the debtor is employed. If a wage garnishment is served, the employer is instructed to withhold a certain amount of money for a specified number of pay periods to satisfy the judgment.

•

A bank account garnishment is served on the bank(s) where the judgment debtor has one or more bank accounts. The bank garnishment is different from a wage garnishment as the full amount of the judgment debtor’s bank account at the time the bank receives the garnishment document is available to satisfy the judgment.

•

A judgment creditor may also have a marshal or sheriff levy and sell unsecured personal property belonging to the judgment debtor.

•

A lien can be filed on real estate records, known in some jurisdictions as land records, against the judgment debtor’s real property. There is no immediate recovery of funds when a judgment lien is filed. Rather, when the judgment debtor sells the real property, a portion of the proceeds from the sale must be allocated to satisfy the judgment lien in order to obtain a release of the lien.

•

When the judgment debtor is a business, a sheriff or marshal can collect directly from the business judgment debtor’s cash register. This is often called a “till tap.” A lien may also be filed as to business equipment and the equipment can be ordered sold to pay a judgment.

However, if the business equipment is already encumbered by a lien in favor of a secured creditor, the secured creditor’s interest must be satisfied before that of the judgment creditor.

There are a number of considerations when enforcing a judgment. Certain income is exempt from garnishment, including Social Security, unemployment, welfare, pension and disability benefits.

There may also be state laws that exempt certain types of property from seizure. If the judgment debtor files for bankruptcy, an automatic stay protects the judgment debtor from attempts to enforce a judgment.

Appellate Process and Procedure When filing an appeal, the Federal Rules of Appellate Procedure should be followed. The appropriate local federal rules should also be reviewed prior to initiating an appeal.

In order for the appellate court to hear an action, it must have jurisdiction to review the decision of the court of original jurisdiction (the trial court). The appellate court does not have the power to retry a case or to consider new evidence that was not previously introduced in the trial court. The appellate court has the authority to affirm, reverse or reverse and remand the trial court’s decision. If the appellate court affirms the trial court’s decision, then it upholds the lower court’s decision. If the appellate court reverses the decision, it changes the lower court’s decision and it will either: (a) reverse the lower court’s judgment and replace it with the appellate court’s judgment; or (b) reverse and remand to the trial court with direction as to what action the trial court should take.

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Trial Practice Pretrial Preparation •

A Motion in Limine is a written request filed with the court prior to or during trial, asking the judge to rule that certain testimony regarding evidence or information be included or excluded from the trial. Motions in limine are used in both civil and criminal actions, and are always discussed outside the presence of the jury and always decided by a judge. In a criminal action, they are most often used in attempts to prevent the jury from hearing information concerning the accused which might be unfairly prejudicial to the accused if heard at trial. In civil actions, although motions in limine are often used to prevent the opposing party’s expert from testifying, they may be used in a variety of circumstances.

If the motion in limine to preclude evidence or testimony is granted, then the excluded records/testimony are prohibited from being presented at trial.

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Trial notebooks are necessary to efficiently manage paper at trial. Since the entire case file will not be needed during the trial, it is important to be selective and identify only those materials which will be required during the trial. Trial notebooks should include a section of contact information for clients, witnesses, a process server and any other individuals needed during the trial; key pleadings (e.g., complaint, answer, counterclaim, etc.); written discovery, including interrogatory responses, production compliance and responses to requests for admissions; motions in limine and objections thereto; exhibits and exhibit lists; deposition transcripts and summaries of deposition testimony; outlines of witness testimony; witness lists; opening statement notes; and expert disclosures.

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Direct examination consists of the questions asked at trial by the party who called a particular witness and the testimony given in response to those questions.

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Cross-examination consists of the questions asked at trial by the party who did not call the witness and the testimony given in response to those questions.

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Redirect examination is when the party who called the witness has a chance to ask questions of the witness to explain or otherwise qualify any damaging testimony brought out by the opposing party during cross-examination. Questions asked during redirect examination may only include topics covered during cross-examination.

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Checklists are useful tools in preparing for trial and should include a list of tasks to be completed with a timeline showing the required completion date for each task. The paralegal should create either one master checklist for all trial preparation or several checklists for various categories of tasks. The contents of a trial checklist will vary based on the subject matter and type of trial, but will typically include: identifying categories of proof required; preparing trial subpoenas; preparing motions in limine and objections thereto; preparing trial notebooks; preparing a draft of the opening statement; outlining testimony for direct and cross examination of each witness; conducting meetings with both clients and witnesses to prepare them for trial; identifying, preparing, pre-marking and organizing trial exhibits; preparing jury instructions; confirming equipment required for trial; and organizing electronic copies of trial materials for use on a laptop during trial.

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Opening statements are monologues made by each party’s attorney at the beginning of the trial, laying out what he/she intends to prove. They include a description of the

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dispute, a summary of the facts, the identities of the witnesses and an outline of the evidence and testimony he/she expects to present during the trial. Opening statements can be persuasive, but should not be argumentative. Typically, the attorney for the plaintiff delivers his/her opening statement prior to that of the defendant.

Closing arguments are made by each party’s attorney after all the evidence has been presented at trial and are an opportunity to highlight the key evidence and persuade the jury to decide in favor of his/her client. During closing arguments, the attorneys may comment on the credibility of witnesses, provide his/her explanation of how various pieces of evidence support his/her client’s position, and advocate on behalf of that position. A closing argument may not include any new information not presented during the trial. As with the opening statement, plaintiff’s attorney makes his/her closing argument first, followed immediately by the defendant’s attorney. Finally, the plaintiff’s attorney sometimes has an opportunity to present a rebuttal closing argument. In cases where there is no jury, the attorneys often waive their right to make final arguments. Some judges request written summaries from the attorneys at the close of trial.

Exhibits/Presentations When planning out the proofs required at trial in order to prevail, the paralegal should confer with the attorney to identify what photos, documents (e.g., police reports, medical records, graphs, charts, etc.) or other materials will be used as exhibits, as well as to determine any presentations that will be necessary. This process should be started well in advance of trial.

In a jury trial, it is often preferable to have key documents and/or photos enlarged into what are often called “demonstrative exhibits.” Demonstrative exhibits are frequently poster-sized and mounted on foam core board to aid in viewing by the jurors. In cases where there is no jury, it is usually unnecessary to utilize poster-sized exhibits since the judge does not need this additional visual aid and can easily view the exhibit in its original size and/or format.

Depending on the type of case, the legal team may also want to use a trial expert to create demonstrative exhibits. Experts are used to produce exhibits in the form of animations, simulations, accident reconstructions, day-in-the-life videos or other presentations, where the depiction of aspects of the case such as catastrophic injuries or the mechanics of a crash will have a greater visual impact on the jury than ordinary exhibits.

Witnesses/Experts Fact Witnesses Throughout the course of the litigation, the legal team will identify individuals who will be called as witnesses at trial. These individuals can be eyewitnesses to a specific event or incident, character witnesses or witnesses as to facts or documents. A witness can also be someone designated as a “keeper of the records,” whose role is to testify at trial that the exhibit is a true and accurate copy of the original records and the fact that the records were created and maintained in the ordinary course of business.

As part of the trial preparation, it will be necessary to prepare an outline of the testimony expected from each witness. The outline should include not only the testimony each witness will give, but also the exhibits that will be used in connection with each witness. The attorneys and/or paralegals working on the case will then meet with each witness separately to discuss their testimony prior to trial.

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Expert Witnesses In many cases, the attorneys will have retained one or more experts during the course of the litigation. Experts can come from such areas of expertise as accident reconstruction, accounting, ethics, medicine and economics. It is important to carefully consider the prospective expert’s qualifications prior to retaining him/her, since this can be a potential basis used by opposing counsel to try to discredit the expert and/or to completely preclude the expert from testifying.

After the expert analyzes the pertinent records, facts, information, locations, etc. within his/her area of expertise, the expert usually prepares a report. Based on the report and conversations with the expert, the attorney and/or paralegal will prepare an expert disclosure, which provides the opposing party with a summary of the opinions the expert is prepared to offer in the case. Opposing counsel will almost always take the deposition of the expert prior to trial to obtain additional information and specifics about the expert’s opinion.

Preparing an expert witness for trial is similar in some respects to preparing a fact witness.

An outline of the expert’s testimony is prepared, which should include the testimony and the exhibits to be used. The attorneys and/or paralegals working on the case will then meet with the expert to discuss his/her testimony.

Jury Selection There are essentially three types of juries in the federal court system - grand juries, civil petit/trial juries and criminal petit/trial juries.

Grand Jury A grand jury consists of 16 to 23 individuals and has a very specific function. Grand juries are convened in criminal matters only. The federal prosecutor presents evidence to the grand jury in order for the grand jury to determine whether there is “probable cause” to believe that an individual has committed a crime and should be tried for that crime. If the grand jury decides that there is sufficient evidence, it will issue an indictment against that individual.

Civil Petit/Trial Jury A civil petit/trial jury typically consists of 6 to 12 individuals. Those individuals listen to the evidence presented and decide whether the defendant injured the plaintiff or otherwise failed to fulfill a legal duty to the plaintiff; and, if so, decides what the penalty or compensation should be.

Criminal Petit/Trial Jury A criminal petit/trial jury consists of 12 individuals. Those individuals decide whether the defendant committed the crime with which he/she was charged, although the sentence is usually determined by the judge.

Jury selection starts with the jury pool, which is a result of a random selection of individuals’ names from lists of registered voters, or a combined list of registered voters and individuals with drivers’ licenses, from within the judicial district. Those randomly selected individuals are required to complete questionnaires to help determine if they are qualified to serve on a jury.

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In order to be qualified to serve on a jury, an individual must: be a United States citizen, be at least 18 years of age, reside primarily in the judicial district for one year, be adequately proficient in English, have no disqualifying mental or physical condition, not be currently subject to felony charges, and never have been convicted of a felony (unless civil rights have been legally restored).

There are three groups exempt from federal jury service: members of the armed forces on active duty; members of professional fire and police departments; and public officers of federal, state or local governments who are actively engaged full-time in the performance of public duties. An individual may also request to be excused from jury duty if he/she is over the age of 70, has served on a federal jury in the past two years, or serves as a volunteer firefighter or member of a rescue squad or ambulance crew. In addition, courts may excuse a juror from service on the basis of “undue hardship or extreme inconvenience” if the distance to the courthouse makes it difficult for the juror to travel there.

After reviewing the questionnaires, the court randomly selects qualified individuals to be summoned for jury duty. This process is designed to insure that a cross section of the community is represented without regard to race, gender, age, national origin or political affiliation. Those individuals make up the jury pool.

When a jury is needed for trial, members of the jury pool are brought into the courtroom.

Potential jurors are provided with a brief summary of the case. All parties, counsel and law firms involved in the case are identified for the potential jurors. Key witnesses may also be identified.

A potential juror who knows someone involved in the case will usually be automatically excused from consideration for that jury.

The judge and the attorneys will then ask the remaining potential jurors questions to determine their suitability to serve on the jury. That process is referred to as voir dire. The purpose of voir dire is to exclude individuals from the jury who may be biased in some way or otherwise unable to decide the case fairly.

Potential jurors who have information about the case, or who may have strong prejudices about the people or issues involved in the case, will be excused by the judge. The attorneys also may exclude a certain number of jurors, either for a particular reason, known as a challenge for cause; or, without giving a reason, known as a peremptory challenge. Attorneys may challenge an unlimited number of potential jurors for cause, but usually have a limited number of peremptory challenges to be used in each case.

Jury selection is often more an art than a science. Although attorneys may accept or reject a potential juror based on information they may know or learn about the potential juror, they may also accept or reject a potential juror based on a gut feeling. Many trial attorneys enlist the assistance of an associate or paralegal during jury selection so that there is a second pair of eyes observing the potential jurors, taking notes on their mannerisms and responses and providing a second opinion as to the acceptability of a potential juror. Depending on the case and the amount at stake, the attorney may engage the services of an expert, such as a jury psychologist or other jury consultant, to assist in the jury selection process.

Federal Rules of Civil Procedure The Federal Rules of Civil Procedure (FRCP) govern civil procedure in the United States federal courts. There are 86 rules in the FRCP, divided into 11 chapters. The chapters divide the rules into

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categories, including: scope of rules/form of action; commencing an action – service of process, pleadings, motions, and orders; pleadings and motions; parties; disclosures and discovery; trials; judgment; provisional and final remedies; special proceedings; district courts and clerks: conducting business/issuing orders; and general provisions. There are two additional chapters which include an appendix of forms and supplemental rules for admiralty or maritime claims and asset forfeiture actions.

The Federal Rules of Civil Procedure are too extensive to cover here in their entirety. For a full review of the Federal Rules of Civil Procedure, they can be accessed on the Internet on the federal court website67. Examples of information contained in these rules include:

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How to serve a summons and complaint (Rule 4) on an individual in the United States; an individual in a foreign country; a minor or incompetent person; a corporation; a partnership; the United States and its agencies; and a foreign, state or local government;

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How to calculate the time periods included in the rules (Rule 6), including that if the period is stated in days or a longer unit of time: (A) exclude the day of the event that triggers the period; (B) count every day, including the intermediate Saturdays, Sundays and legal holidays; and (C) include the last day of the period, but if the last day is a Saturday, Sunday or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday or legal holiday;

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What must be redacted from filings (Rule 5.2(a)), including the last four digits of a social security number, the year of an individual’s birth, a minor’s initials, and the last four digits of a financial account number, as well as the exemptions from the redaction requirements (Rule 5.2(b));

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What affirmative defenses may be pled (Rule 8(c)(1)), include: o

accord and satisfaction;

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arbitration and award;

o

assumption of risk;

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contributory negligence;

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duress;

o

estoppel;

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failure of consideration;

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fraud;

o

illegality;

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injury by fellow servant;

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Civil%20Procedure.pdf (last visited June 1, 2019)

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o

laches;

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license;

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payment;

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release;

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res judicata;

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statute of frauds;

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statute of limitations; and

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waiver.

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What must be included in initial disclosures, (Rule 26(a)), which includes: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, along with the subjects of that information; (ii) a copy (or a description by category and location) of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses; (iii) a computation of each category of damages claimed by the disclosing party, who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment, which must be made available for inspection and copying as under Rule 34; and

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The parameters of depositions (Rule 30), including guidelines on such aspects of the deposition as reasonable notice, production of documents, method of recording (audio, audiovisual or stenographic means), objections and duration (limited to 1 day of 7 hours).

Federal Rules of Appellate Procedure The Federal Rules of Appellate Procedure (FRAP) govern the procedures for cases before the United States Courts of Appeals. There are 48 rules in the FRAP, divided into 7 chapters. The chapters divide the rules into categories, including: scope of rules/form of action; appeal from a judgment or order of a District Court; review of a decision of the United States Tax Court; review or enforcement of an order of an administrative agency, board, commission, or officer; extraordinary writs, Habeas Corpus/proceedings in forma pauperis; and general provisions.

As with the Federal Rules of Civil Procedure, the Federal Rules of Appellate Procedure are too extensive to be covered here in their entirety. For a full review, they can be found in their entirety on the federal court website68, Examples of information contained in these rules include:

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http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Appellate%20Procedure.pdf (last visited June 1, 2019).

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When an appeal as of right is taken in a civil case: with several exceptions, notice must be filed with 30 days after the judgment or order appealed is entered (Rule 4);

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What the record on appeal consists of: the original papers and exhibits filed in the district court; the transcript of proceedings, if any; and a certified copy of the docket entries prepared by the district clerk (Rule 10(a));

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The length of appellant’s principal brief: no more than 30 pages, or no more than 14,000 words, or no more than 1,300 lines of text using a monosPACE®d typeface, and reply brief no more than 15 pages, or no more than 7,000 words, or no more than 650 lines of text using a monosPACE®d typeface (Rule 32(a)(7)); and

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The color of the cover of the brief - appellant-blue, appellee-red, amicus-green, reply-gray, and supplemental-tan (Rule 32(a)(2)).

Federal Rules of Evidence The Federal Rules of Evidence (FRE) govern the admission of facts and documents used in a trial to prove both civil and criminal cases in federal court. They were initially enacted in 1975, and have subsequently been amended. The FRE strive to achieve fairness in the adversary process and focus on relevance, unfair surprise, efficiency and reliability.

The FRE include 67 individually numbered rules, categorized into 11 articles, including: general provisions; judicial notice; presumptions in civil actions and proceedings; relevancy and its limits; privileges; witnesses; opinions and expert testimony; hearsay; authentication and identification; contents of writings, recordings and photographs; and miscellaneous rules. For a full review of the Federal Rules of Evidence, they can be found on the federal court website69, In addition to serving as guidelines, the FRE include a definition of relevant evidence, which is described in Rule 401 as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

The FRE deal with issues such as hearsay, witness credibility, authentication of documents, admissibility of pleas, attorney-client privilege and work product, personal knowledge and expert testimony.

Civil Litigation and Social Media According to the Journal of Insurance Fraud in America, insurance investigators and defense attorneys should routinely look for claimants’ and plaintiffs’ profiles on search engines such as Yahoo! and Google, as well as for public information on social networking sites such as Facebook, LinkedIn, and MysPACE®. It has become common practice in many firms for paralegals to conduct these searches not only at the beginning of the case, but throughout, and to include witnesses, experts and even the assigned judge in their searches.

In fact, one of the disclaimers on Facebook, one of the most popular social media sites, warns that it will disclose information “…When we have a good faith belief it is necessary to prevent fraud or

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https://www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-evidence (last visited Sept. 6, 2024).

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other illegal activity…[t]his may include sharing information with…Lawyers, courts or other government entities.”

While private investigation entities and the claims departments of insurance companies do regularly use the Internet to identify and fight invalid insurance claims and other legal actions, there are a number of issues to be aware of regarding the use of social networking information in litigation, including: informal investigation by insurance companies; formal discovery by attorneys; discovery from website operators and claimant privacy issues; and professional responsibility considerations for investigators and attorneys/paralegals.

Some pertinent cases dealing with social media which address these issues include: •

In EEOC v. Simply Storage, 2010 WL 3446105 (S.D. Ind. May 11, 2010), a case involving workplace harassment, the Court held that “a person’s expectations & intent that her communications be maintained as private is NOT a legitimate basis for shielding those communications from discovery.” The Court further stated that discovery of social media simply “requires the application of basic discovery principles in a novel context.”

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In McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (C.P. Jefferson Cty. 2010), a case involving a workplace incident, the Court held both public and private portions of plaintiff’s social networking sites were discoverable in order to disclose information as to whether the plaintiff exaggerated his injuries. The Court found that the plaintiff had no reasonable expectation of confidentiality or need for privilege outside of attorney-client communications. It ordered the plaintiff to preserve information contained on his social networking websites.

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In Romano v. Steelcase, 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010), a personal injury action, the Court held that “when plaintiff created her Facebook & MySPACE® accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed that is the very nature & purpose of these social networking sites else they would cease to exist.”

It should be noted that EEOC stands in contrast to McMillen and Romano on a key point: rather than allowing broad access or requiring production of passwords, the EEOC court called on counsel “to make judgment calls - in good faith and consistent with their obligations as officers of the court” with regard to questions of relevance.

The Stored Communications Act (SCA) is a law that was enacted by Congress in 1986 as part of the Electronic Communications Privacy Act. The SCA addresses voluntary and compelled disclosure of “stored wire and electronic communications and transactional records” held by third-party Internet service providers. It states that an electronic communication service may not disclose the contents of its subscribers’ communications except in specific, narrowly defined situations. Although the SCA was enacted long before the advent of online social networking, courts have held that social media websites are, in fact, prohibited from responding to a subpoena for information under the SCA. It should be noted that there are exceptions in criminal cases.

There are some ethical issues to keep in mind relative to social media and litigation. Specifically, the paralegal should: (1) respect security settings on social media websites; (2) remember not to try to “friend” an opposing party, witness, juror or prospective juror; and (3) remember that any attempt to obtain information through “friending” is considered an ethical violation.

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Several bar associations have published opinions related to the use of social media in litigation. Some examples are: •

NYCLA Opinion No. 743 (May 18, 2011), addressing social media and jury issues, states that it is proper and ethical for a lawyer to undertake a pretrial search of a prospective juror’s social networking site, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to communicate with them via social networking, including a prohibition on “friending” jurors, subscribing to their Twitter accounts, sending tweets to the jurors or otherwise contacting them. The opinion also states that, during the evidentiary or deliberation phases of a trial, a lawyer may view the publicly available Twitter, Facebook or other social networking sites of a juror. The lawyer has an ethical obligation not to “friend,” email, send tweets to jurors or otherwise communicate in any way with a juror, or act in any way by which the juror becomes aware that the lawyer is monitoring the juror’s social networking activity. The lawyer has an ethical obligation not to make any misrepresentations or engage in deceit, indirectly or directly, in viewing a juror’s social networking sites. Finally, in the event a lawyer learns of juror misconduct, the lawyer may not unilaterally act upon that knowledge to benefit his/her own client, but must promptly inform the court of the misconduct.

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New York City Bar Association Opinion 2010-2 takes a less restrictive view, focusing on lawyers’ use of social media generally, and not specifically on investigating jurors’ social media accounts. In this Opinion, the New York Bar states that a lawyer, acting either alone or through an agent such as a private investigator, may gain access to an otherwise secure social networking page and the potentially helpful information it holds provided that the attorney does not resort to “trickery” or deceptive behavior to gain such access. A lawyer may “friend” a third party, such as a witness or adversary, but must reveal his/her identity, although there is no obligation to explain the reason for making the “friend” request. The New York City Bar relied in part on a decision of the New York Court of Appeals approving of the use of “informal discovery” mechanisms for obtaining information from a potential witness. Muriel, Siebert & Co. v. Intuit Inc., 8 N.Y.3d 506, 511, 836 N.Y.S.2d 527, 530 (2007) (“Counsel must still conform to all applicable ethical standards when conducting such [ex parte] interviews [with opposing party’s former employee].”)

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Philadelphia Bar Association Opinion 2009-02 is also directed to social media accounts generally, and is not focused specifically on jurors’ social media accounts. The Philadelphia Bar Association opined that it would be unethical for a lawyer to ask a third party to “friend” an unrepresented witness to gain access to the witness’s Facebook and MySPACE® pages if the third party does not reveal being affiliated with the lawyer. According to the Philadelphia Bar, even if the lawyer or third party were to use his/her real name, the communication would be deceptive unless the attorney or third party reveals the purpose of “friending” the individual. The opinion stated that such a communication would be misleading because “the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness.”

Research should be conducted to determine what decisions may have been rendered in your jurisdiction. The ABA website provides a list of state bar associations, where such opinions may be searched70.

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http://www.americanbar.org/groups/bar_services/resources/local-bar-resource-directory.html

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Sample Questions Q:

What is one of the basic elements required to prove negligence?

A. affirmative defense B. having physical injuries C. needing an ambulance D. causation

A:

(D.) Causation is one of four elements of negligence plaintiff must prove for a successful tort claim.

Q:

When an appeal as of right is taken in a civil case, how many days does the appealing party have within which to file notice with the district court clerk after the judgment or order being appealed is entered?

A. 20 days B. 30 days C. 15 days D. 45 days

A:

(B.) Rule 4 of the Federal Rules of Appellate Procedure provides that an appeal must be filed within 30 days.

Q:

There are numerous concepts applied in tort actions. Which concept is applied in product liability cases in which a seller is liable for any and all defective or hazardous products which unduly threaten a consumer's safety?

A. respondeat superior B. res ipsa loquitor C. malice D. strict liability

A:

(D.) Strict liability is the concept applied in situations involving dangerous and/or defective products.

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Domain 02: Substantive Areas of Law TORTS All legal actions are divided into two categories, criminal and civil. Many civil cases involve a tort action or a breach of contract action. Tort actions are civil wrongs or injury (excluding breach of contract) based on tort law. Tort law is derived from both common law and statutes (state and federal). Tort statutes define what duty of care is owed by individuals or entities to others and their property. Thus, tort actions arise from the breach of the duty owed whether by act or omission.

A. Introduction Tort is defined as a civil wrong against a person or property as defined by state or federal law. Black’s Law Dictionary® defines tort as: A private or civil wrong or injury, other than breach of contract, for which the court will provide a remedy in the form of an action for damages.

Tort law was initially derived from old English law, where victims received compensation for injuries whether or not the tortfeasor was found to be negligent. This tort system was carried over and continued in the United States. The American legal system extended tort law in the 19th century by making negligence a basis for tort claims, thus expanding original tort law to include negligence and strict liability.

Current laws provide remedies to individuals and entities injured through the carelessness or intentional misconduct of another. Tort law has ultimately created standards such as rights to protect individuals, hold others accountable to those standards, encouraging basic civil standards and providing for compensation to those injured.

Most tort law is derived from common law. From common law, statutes governing tort law are created. In the absence of relevant statutes, common law usually controls tort cases. Courts may review legislative intent of statutes when deciding tort cases, and legislatures may supplement or change a statute according to a court ruling.

As we explore a basic overview of tort law, remember that a tort is not just a fancy name for a car accident case, but encompasses a wide range of acts and/or omissions. Omissions include those failures to act such as a failure to brake timely in order to avoid an accident or control a dangerous animal from injuring a person or property. A single complaint can include a laundry list of tort actions or can be a single negligence action. i) Overview of a Tort Case The following is an overview of various pleadings, procedures and processes in a typical tort action in the federal court system. All rules referred to are those of the Federal Rules of Civil Procedure (FRCP), Federal Rules of Evidence (FRE) and the Federal Rules of Appellate Procedure (FRAP). a) Jurisdiction and Venue Before a lawyer files a case, he/she must decide what court has subject-matter and personal jurisdiction to hear a case. Jurisdiction is the legal right by which a court can exercise authority over a case. Jurisdiction of federal courts is governed by the United States Code, starting with 28 189

U.S.C. § 1251 et seq. Jurisdiction can be determined first by deciding who the parties are (is the federal government a party to the action?); if there is a federal question; or if there is diversity of citizenship. Most federal tort cases are brought under diversity of citizenship; several of those cases originate in state courts, but are removed to federal court. If a case does not meet one of the three requirements listed above, than it cannot be filed in federal court.

Once it is determined that jurisdiction in federal court is proper, then the lawyer must decide in which venue to file. Venue represents the actual court’s location (e.g., the United States District Court for the Northern District of Texas, Dallas Division). Venue may be proper in multiple locations depending on the residency of the parties to the suit or the location where the incident occurred. A detailed review of general law or civil litigation is important to understand how to choose the proper venue. b) Complaint A complaint is the first paper filed with the clerk’s office to initiate a law suit. This pleading is filed with the appropriate clerk’s office along with the correct fee and instructions on service of process on the defendant. Plaintiff’s complaint lays out the parties, the statement of the facts, an explanation of the court’s power to adjudicate the case and specific requests for relief and/or damages relief. c)

Summons In the federal system, the District Clerk will issue a summons, upon request, to serve the defendant(s) with notice and a copy of the complaint. Summons is a form of notice required by the due process clause and notifies the defendant that he/she has been sued. The summons and complaint must be served on the defendant within 120 days after filing the complaint pursuant to Fed. R. Civ. P. 4(m).

d) Service of Process Service of process is the act of delivering or serving the defendant with the complaint. Service can be effectuated by a governmental authority, such as a U.S. Marshal, a sheriff or constable, or by a private process server. Service can also be accomplished by the clerk of the court via certified mail in some instances or by publication. Once service of process is complete, whether it is by personal service or by publication, a “return of service” is created to show when, where and how the complaint was served. The return of service is usually filled out and signed by the person serving or publishing the summons and complaint, and then filed with the court as proof of service. e) Waiver of Service Pursuant to Fed. R. Civ. P. 4(d), individuals, corporations and associations have a duty to avoid unnecessary expenses in litigation; thus, the ability to waive service by a process server assists in that respect if a defendant agrees to sign an acceptance of service. Once the defendant is properly notified of the pending lawsuit by the plaintiff, the defendant has an additional thirty days to sign and return a waiver. If the waiver is accepted before the defendant is personally served, the defendant is allowed sixty days from the date of waiving service to answer the lawsuit instead of the typical twenty-one days. If the defendant is outside of the United States, the answer date is ninety days after the waiver/acceptance is signed.

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f)

Answer An Answer is the defendant’s response to the complaint. This pleading is filed with the court and served on the plaintiff within the specified time prescribed by Fed. R. Civ. P. 4. The time to answer a complaint in the U.S. District Court is twenty-one days after the date of service (not counting the day of service) in most cases. Certain defendants may have additional time to answer.

g) Discovery Plan and Scheduling Order After the defendant answers the complaint and as soon as is practical, the parties will be required to conference, meet and submit a proposed discovery plan and scheduling order. These instruments are the roadmap for the adjudication of the case and outline all deadlines by which the parties will work to meet. Deadlines will include time in which to complete discovery, amend pleadings, designate experts, submit dispositive motions and submit pretrial materials like exhibit and witness lists prior to trial. h) Disclosures Fed. R. Civ. P. 26 governs mandatory initial disclosures in federal cases. A party must serve, without a request, initial disclosures on the other party, identifying specific information that will aid in the discovery of the case. Rule 26 outlines specifically what information and documents must be produced by each party. Initial disclosures include four categories of information: (1) Names, addresses and telephone numbers of individuals likely to have discoverable information as well as the subject of the information; (2) A copy, or a description, of all documents whether tangible or electronic, in the parties’ possession, custody, or control that supports that party’s claim or defense; (3) A computation of damages by the party. Any documents used to support a computation of damages must be produced pursuant to Fed. R. Civ. P. 34 (see discovery below); and (4) A copy of any insurance agreement under which an insurance company may be liable to satisfy all or part of a judgment in the case. i)

Discovery Once the parties have filed their initial pleadings, the case moves into the discovery phase.

Discovery is the exchange of information to discover the facts that relate to the issues in dispute.

Paralegals are largely involved with this portion of a lawsuit. Discovery, according to the Federal Rules of Civil Procedure, includes: • • • • • •

j)

Depositions by Oral Examination Depositions by Written Questions Interrogatories Requests for Production Requests for Examination Requests for Admission

Rule 30 Rule 31 Rule 33 Rule 34 Rule 35 Rule 36

Expert Designations Designation of experts is controlled by Fed. R. Civ. P. 26(a)(2). It is important to make sure the correct deadlines are calendared so that a party does not automatically waive its right to have an

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expert witness by missing the deadline. k)

Pretrial Procedures Pretrial procedures are also governed by Fed. R. Civ. P. 26(a) and can include pretrial conferences with the court, the exchange of all trial documents prior to trial including witness lists, exhibit lists, deposition designations and motions in limine, and any other items that may need to be addressed prior to trial.

l)

Alternative Dispute Resolution (ADR) ADR is the attempt to resolve a lawsuit without a court decision or a jury trial by utilizing a nonbiased, unrelated person in an effort to settle the case. ADR is used as an alternative to the trial process and can help cut costs and time by bringing a case to a quick resolution. ADR includes arbitration, mediation, mini-trial, rent-a-judge and summary jury trial.

• Arbitration: Resolution of a dispute by a person (other than a sitting judge) whose decision is binding on the parties. Arbitration is similar to a summary trial in that each side openly presents his/her case to the arbitrator as if they were in court. This is similar to “rent-a-judge.” Some contracts have a mandatory provision requiring any dispute to be resolved via arbitration.

Sometimes parties agree to non-binding arbitration; meaning, that if a party does not like the arbitrator’s decision, he/she may begin or continue a lawsuit.

• Mediation: Resolution of a dispute through negotiation between the parties by a disinterested, non-biased person. Mediation is different than arbitration in that it is a tool to persuade the parties to settle through negotiation, and is usually non-binding.

• Summary Jury Trial: Similar to mini-trial and used in complex litigation with a judge and a small jury, presenting only the most important facts to the jury with all evidence being agreed to prior to the trial. The jury’s decision can be binding by agreement, or the jury can be interviewed afterward and the results used to negotiate a settlement.

m) Trial Trial is the process of deciding a case by a judge -- also known as a bench trial -- or a jury in a court of law through the presentation of witness testimony and evidence by each party. Some cases settle during trial based on either the judge’s or jury’s reaction to the evidence presented and/or witness testimony. n) Appeal After the end of a trial, whether bench or jury, and after a judgment is signed by the court, a party can request a review of the case by a higher court. This request is known as an appeal and is usually made by notice and/or application to the appropriate court of appeals or the U.S. Supreme Court. A party can appeal a court ruling on a single motion or after a jury verdict on an entire trial.

The process outlined above is an overall review. Certain types of tort cases will have a different docket control order and/or scheduling orders pursuant to local federal court rules. Parties may also ask for extensions of deadlines in order to complete fact-gathering discovery, depositions or to add additional parties before proceeding to trial. Any of these may alter deadlines set by the Federal Rules of Civil Procedure or a scheduling order. It is a paralegal’s duty to check the requirements of the local rules of 192

that particular court.

B.

Elements of Negligence Every tort action includes various basic elements of negligence to be proven. The following elements are an example of what must be proven for a tort claim to be successful: • • • •

Duty of Care Breach of Duty Injury Causation

i)

Duty of Care In analyzing a negligence case, one must first determine if the action or omission breached a duty of care; and, second, if there was a breach of duty, did it cause the incident. There must be a causal connection between the alleged negligence and the injury that resulted. In further analyzing a negligence matter, the consideration of foreseeability is also required. Foreseeability is the action by which, under particular circumstances, would produce an anticipated result, such as an injury to someone. However, foreseeability can also limit the scope of the duty owed to others; it also includes precautionary measures taken to avoid injury. Therefore, was it reasonably foreseeable that the person injured would be harmed as a consequence of the tortfeasor’s actions? If so, the scope of duty of reasonable care includes the individual who was injured.

In a case involving negligence of a professional (e.g., a physician or a lawyer), the professional is held to the higher standard of care expected for that professional in the community. This is commonly known as a standard of reasonable care for those people with special skills and knowledge in a specific area. For negligence, there must be a determination of whether the defendant acted in a manner in which a reasonable person with matching skills and abilities would act in the same or similar circumstances.

Another concept to consider in negligence cases is that of “taking the plaintiff as one finds him/her,” or “eggshell plaintiff theory.” This theory stands for the proposition that even though a victim’s injuries were reasonably foreseeable from defendant’s breach of duty, and though the defendant was unaware of a potential preexisting condition of the plaintiff, the defendant is liable for those foreseeable injuries.

ii)

Breach of Duty The “reasonable person test” is used to determine negligence and is based on what a reasonable person would have done in the same or similar circumstances. This standard is a means by which a tortfeasor’s culpability is measured. In the same or similar circumstances, would a reasonable person have acted as the tortfeasor behaved? If so, then there is no violation of the duty of reasonable care. If not, then the tortfeasor breached a duty. A breach can be the result of a violation of a statute, such as running a red light, speeding and/or trespassing.

iii)

Injury/Harm

Injuries are usually proven through fact and expert witness testimony, reports, medical records, affidavits and other evidence. Both physical and non-physical injuries can be compensable. Non-physical injuries can include mental anguish, loss of consortium or an injury to a person’s reputation.

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iv)

Causation Assuming negligent conduct has occurred, one must prove causation. Causation is defined as the act by which an effect is produced. In proving causation, a victim must show that the tortfeasor’s action was the immediate, direct and dominant cause of the victim’s injuries, and that the incident and injuries are foreseeable to an ordinary person in the same or similar circumstances. Causation must be proven through a showing of cause-in-fact (also known as legal cause) and proximate cause, the latter being harder to prove.

The most common way to determine causation is the “but for” test. Plaintiff’s injuries would not have occurred but for the breach of duty by the defendant. The defendant had a duty of care, the defendant breached the duty of care in an unreasonable fashion, the defendant should have foreseen the injuries that were caused by the breach; so, the defendant’s breach resulted in damages and injuries to the plaintiff. a) Proximate Cause Proximate cause is a natural, continuous sequence of events set into motion by the tortfeasor, and, when unbroken, produces injury. Without such action, the result or injuries would not have occurred. An action that sets events into motion may not be directly related to the injuries, but still may be a proximate cause. Once there is a showing of proximate cause, a plaintiff can move on to prove cause-in-fact.

For example, on the Fourth of July, a tortfeasor shooting off bottle rockets in the direction of a neighbor’s roof negligently sets the house on fire. Miraculously, a fireball jumps from the roof of his/her house and hits a hot air balloon that happens to be floating by, causing it to crash and injuring its passengers. Under these facts, the defendant’s conduct can be said to have proximately caused not only the damage to the house, but also to the hot air balloon and its occupants. b) Cause-In-Fact Cause-in-fact, or legal cause, denotes an action by the tortfeasor that resulted in an invasion of some legally protected interest of another to which the tortfeasor is held responsible for the harm caused. In addition to showing that a defendant proximately caused an injury, a plaintiff must also prove cause-in-fact. In other words, was the harm caused by the tortfeasor’s conduct a reasonably foreseeable result of that conduct?

In the above example, the defendant would probably not be held liable for the damage to the hot air balloon and its occupants, inasmuch as he/she could not have reasonably foreseen that his/her conduct (i.e., negligently setting fire to a house) would result in damage to a passing hot air balloon. However, his/her conduct not only proximately caused damage to the house, but would also likely be considered a legal cause due to the fact that he/she could have reasonably foreseen that his/her conduct (again, setting fire to the house) could result in the house burning down. c)

Joint and Several Liability When there are multiple potential defendants to an action, a plaintiff may sue all possible defendants. To determine who caused the injury when there are multiple defendants, the standard is the substantial factor analysis. When multiple parties are said to have caused injury to the plaintiff, and only one defendant’s actions were a substantial factor in producing harm, that single defendant is liable. However, when two or more defendants jointly commit a tort, they can be held equally liable, which is known as joint and several liability. Finally, if two or more defendants are 194

found to be jointly and severally liable, they can share in payment of the judgment. One defendant may be entirely negligent, but is able to collect money from other defendants who have less liability, a concept sometimes referred to as “contribution.” v)

Burden of Proof In tort cases, as in all civil cases, the plaintiff has the burden of proof and must prove his/ her case by a preponderance of the evidence. Furthermore, all elements of the claim(s) must be established, i.e., elements of negligence. When the plaintiff presents his/her case, he/she is presenting prima facie evidence -- that evidence which proves a case at first sight. The defendant must counter plaintiff’s prima facie evidence with his/her own evidence and meet all of the elements of any defenses claimed.

vi)

Damages Damages equate to the injury or the amount of money that is awarded to make an injured person whole again. As in any case, damages must be proven by showing that the tortious action caused the harm that caused the damages. In some cases, no physical harm is required to be proven to be awarded damages, such as certain intentional tort cases: assault, trespassing and libel. Obviously, there still has to be a determinable injury in an intentional tort case, i.e., a showing of harm and damages. There are several different kinds of damages, and in one negligence case, a jury may be asked to award various kinds of damages.

C. Types of Torts Torts are usually divided into three categories: negligence, intentional torts and strict liability. i)

Negligence In a general negligence case, the actor is held to the basic standard of such care as a reasonably prudent and careful person would use under the same or similar circumstances. Failure to exercise such care is negligent and a showing of intent is not necessary to prove negligence. Negligence can also be defined as conduct that falls below the standard of care established by law for the protection of others against unreasonable risk or harm.

An example of negligence is running a red light and hitting someone. There are also varying degrees of negligence which include negligence per se and gross negligence. Courts differ in their analysis of the existence of duty. Under an analysis of foreseeability, a defendant would only owe a duty to those persons that the defendant could reasonably foresee would be harmed. a) Negligence Per Se Negligence per se relates specifically to a violation of a law meant to protect the public. A plaintiff may plead for a finding of negligence per se when a defendant has violated a law. There does not need to be a finding of whether the tortfeasor should have acted differently because the tortfeasor’s conduct is automatically considered negligent. The plaintiff need only prove that the conduct proximately caused plaintiff’s injuries and damages. Elements of negligence per se in most jurisdictions are: • • • •

Tortfeasor violated a statute; The statute provided for a criminal penalty, but not a civil penalty; The act caused harm that the statute was designed to prevent; and The victim was a member of the protected class defined by the statute.

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b) Gross Negligence Gross negligence constitutes a higher degree of disregard, inadvertence and indifference to a legal duty and the consequences of ignoring the legal duty. Gross negligence requires a showing of willful action and malice, including a complete disregard for the risk and ultimate consequences of the action. For example, a dentist who incorrectly administers intravenous anesthesia during a surgical procedure and inadvertently kills a patient may be negligent. But, if the same dentist had two previous patients almost die from the same incorrect administration of anesthesia, then the dentist could be found to be grossly negligent. c)

Res Ipsa Loquitor Res Ipsa Loquitor is Latin for “the thing speaks for itself.” This is a theory of negligence used when there is a rebuttal presumption or inference that defendant was negligent. This theory arises when evidence is unavailable to plaintiff, the proof that the thing causing injury was in defendant’s exclusive control and that the accident ordinarily would not have happened in the absence of defendant’s negligence. In short, if a plaintiff can effectively plead res ipsa loquitor, the plaintiff avoids having to prove causation in a negligence case.

Elements of Res Ipsa Loquitor are: • Defendant (or defendant’s employer) must have exclusive control of the object or actor that produced plaintiff’s injuries; • Plaintiff’s injury must be of a type that ordinarily would not have happened unless there was negligence; and • Defendant must be in better position to prove lack of negligence than plaintiff is to prove negligence (also known as superior proof position).

ii)

Intentional Torts Intentional torts can be defined as actions designed with intent that bring about a certain result from the act. The act may not necessarily be designed to injure another person or property, but the tortfeasor is aware of potential consequences and results of the action that may be harmful. In another instance, the tortfeasor intends a particular harm to result from misconduct or action which the law has declared wrong.

Intent is defined as a design, will or determination to act a certain way through a person’s state of mind. Intent uses circumstances and inference to understand a person’s actions as opposed to negligence, where the tortfeasor fails to exercise a reasonable degree of care. Several intentional torts are outlined below as an overview. These torts are general and may not be recognized as named in every state or federal jurisdiction. In general, the elements required to prove an intentional tort are as follows: • • •

The tortfeasor commits an act; There was intent by the tortfeasor; and The tortfeasor’s behavior was injurious.

Intentional torts usually involve a crime, and a single act can be the basis for both a civil tort and criminal action. Actions categorized as intentional torts include the following: 196

• • • • • • • •

Assault and Battery Defamation: Libel and Slander False Imprisonment Fraud and Misrepresentation Infliction of Emotional Distress Invasion of Privacy Malicious Prosecution and Abuse of Process Sexual Harassment

a) Assault Assault is an intentional threat or action that could reasonably make a person feel in danger of physical harm. No physical contact is necessary to commit an assault. Aggravated assault includes intent to commit additional crimes and the use of a dangerous or deadly weapon during an assault.

The assault tort was designed to protect individuals from fear of apprehension or unconsented attack, although a person’s apprehension must be “reasonable.” For example, the person’s anxiety was created by fear from threat, or imminent threat of being physically harmed. Once unconsented contact is determined, a lawyer can look to battery as a cause of action. b) Battery Battery is intentional, unconsented physical contact by a person or an object under control of another person causing injury. The three elements to prove battery are: • • •

Unconsented physical contact; Offensive or harmful contact; and The tortfeasor’s intent to touch another person in an offensive or injurious manner.

There must be a lack of consent of physical contact to have battery. However, consent can be express or implied in many instances. For example, participants in sporting events readily consent to physical contact when playing basketball or football. It is also normal and reasonable to expect some physical contact when in a crowd (e.g., at a dance club).

Once it is determined that there was no consent, battery still requires physical contact. Additionally, the contact does not have to be by an actual person, but can be through the action of a person with an object, considered to be an extension of the person. For example, a person can commit a battery by hitting someone with a chair or a purse.

Lastly, the contact must be harmful or offensive. To determine if contact is harmful or offensive, it must be judged by the reasonable person standard. The “reasonable person standard” is a test used to determine negligence and is based on what a reasonable person would have done in the same or similar circumstances. Put another way, it is a comparison of people of ordinary intelligence and judgment and what they would have done in the same or similar circumstances. For example, if patting each other on the back or hugging at work between co-workers is normal, that is considered reasonable and not offensive. In contrast, if a male/female supervisor is touching another employee in a sexual fashion, this could reasonably be perceived as degrading and constitute a battery.

Transferred intent is a principle where the intent of the tortfeasor directed at a victim results in injury to an unrelated third party. The action is still considered intentional and the tortfeasor is negligent. Thus, if a person intended to hit another but hits a third person instead, he/she legally 197

intended to hit the third person, allowing the third person to sue the tortfeasor for damages. This concept holds the tortfeasor accountable for the consequences of his/her actions and allows for remedies of the third party. c) Defamation: Libel and Slander Libel and slander are familiar causes of action due to their public nature. These actions often arise from stories publicized by the media, oftentimes involving public figures.

Libel is defined as a written false and disparaging statement about an individual that the tortfeasor communicates or publicizes to a third party.

Slander is defined as an oral false and disparaging statement about a person that the tortfeasor communicates or publicizes to a third party.

For there to be a cause of action under libel and slander, the communication and/or publication of defamatory information must injure the victim’s reputation in the community. Publication means communicating defamatory information to a person other than the person injured, like a newspaper or potential customer of the injured person. Publication can be made through an oral statement or print provided to a third party. Statements made directly to someone are defamatory only if seen or heard by one or more other persons.

The following are elements of libel or slander: • Must show a written or oral false statement was made concerning the victim; • The tortfeasor made the unprivileged publication of the statement to a third party; • That the publisher of the false statement was at least negligent in publishing the communication; and • Must show harm or damage to the victim’s reputation in the community (damages).

Defining the quality of a statement, whether written or oral, and the harm caused to a person by those statements, can be a difficult task. Delving deeper, below are additional details to help define whether libel or slander are appropriate: (1) Nature of the Statement: For libel, a statement must be written and can be in traditional form, including typed, handwritten, on a message board on the Internet, or even pieced together with cutout letters. For slander, the statement must be spoken or gestured. Words or gestures can be general or obscene. Further, if the tortfeasor and the victim are in public and the statements or gestures are sufficiently clear to onlookers, this can constitute slander. Of course, reasonableness may come into play here; what one person finds offensive, another may not. As the Restatement (Second) of Torts points out, the victims will need to prove injury from the defamation within their community in each case.

(2) Harm to Reputation in the Community: A statement is defamatory if it causes injury to the victim. Injury satisfies the fourth element of libel and slander causes of action. Statements that harm can include statements that ridicule, humiliate or subject the victim to contempt or hatred from peers.

(3) Community: This is more narrowly defined as a significant number of persons acquainted with or familiar with the victim. Of course, the victim’s standing within that community may impact as well.

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(4) Public Figures: Public figures are accustomed to being in the public eye and have greater access to the media to refute false statements, although they are not given as much protection as a private citizen. A public figure most show that any defamatory statement was made with “malice,” which can be difficult to prove.

(5) Slander Per Se: Per se in this instance would indicate something is automatic or presumed.

Some words in and of themselves are defamatory; thus, there is no need to prove damages or injury to show slander per se. For example, words or a slogan that would automatically damage a business or a person’s reputation could give rise to a cause of action for slander per se. A statement that is extremely derogatory and defamatory, like stating that a person has a communicable disease, may result in immediate damage to that person or person’s business.

(6) Truth and Privilege as Absolute Defenses: Truth and privilege are both defenses to slander.

Truth can be a successful defense if the tortfeasor can prove the statement is true or conforms to the truth. Also, what one person thinks is true can be different from what another person thinks is true, thus making this defense potentially problematic.

Privilege can also be used as a defense in defamation cases. Statements made by attorneys and judges during trial are privileged and cannot be grounds for defamation. Legislators are immune from liability for false statements made during debate, even if deliberately untrue.

Members of congress have an absolute privilege while speaking on the floor of congress. This privilege exists so that legislators can speak freely, without fear of repercussion. d) False Imprisonment False imprisonment involves the unlawful restraint or deprivation of a person’s liberty. These cases involve a claim of false imprisonment by public officials and other individuals. Generally, a plaintiff must prove the following elements: • • • • • •

A restriction of freedom of movement; Awareness of fear of the restriction; Non-consent of the restriction; Tortfeasor’s intent to confine victim; Confinement for an appreciable length of time; and No reasonable means of escape or fear of the tortfeasor’s reprisal if escape is attempted.

A person may even be confined by fear, both implied and expressed. Expressed fear can be threats of force. Accidentally blocking or locking someone in does not constitute false imprisonment or fear of confinement.

Appreciable length of time is defined as an unreasonable amount of time under the circumstances and could mean seconds, hours or even longer. However, the elements of false imprisonment are not met if there is a reasonable avenue of escape. For example, if the victim has the opportunity to just walk away from the situation, there is no false imprisonment. Again, reasonable means of escape can depend on the situation. e) Fraud and Misrepresentation Fraud, also known as deceit in some jurisdictions, is described as any kind of trickery used to cheat another person out of money or property. Misrepresentation is the making of a false statement that causes injuries, but may not necessarily entice someone to give up something of value.

Misrepresentation can be identified as one of the following actions: 199

• An innocent misrepresentation constituting a false statement that is not known to be false; • A negligent misrepresentation is a false statement made when one should have known better; or • A fraudulent misrepresentation is a false statement known to be false and meant to be misleading.

Although closely related and usually plead together in a single cause of action, elements proving fraud and misrepresentation are slightly different. Putting the elements of fraud and misrepresentation side-by-side helps to identify the slight difference in the two causes of action: Fraud False statements intended to deceive Knowledge of falsity of statements Statements designed to entice victim

Misrepresentation False statements intended to deceive Knowledge of falsity of statements Innocent party suffers damages into surrendering something of value

Innocent party suffers damages In both causes of action, false statements intended to deceive are those material false statements designed to delude the victim. Knowledge of the false information by the tortfeasor must be proven.

In the case of fraud, the tortfeasor must make false statement(s) designed to entice or encourage the victim to surrender something of value to the tortfeasor. f) Intentional Infliction of Emotional Distress (IIED) Intentional infliction of emotional distress is a separate, intentional tort not to be confused with the right to recover damages for mental anguish in various tort actions. IIED is a non-physical injury inflicted on a person; a cause of action allows a remedy for this injury. IIED encompasses numerous emotions and reactions equal to fright, anxiety, shock, grief, mental suffering, emotional disturbance, shame or embarrassment. There is no physical injury caused by the tortfeasor in these instances, only mental.

The behavior of the tortfeasor must be so outrageous that a reasonable person would suffer severe emotional injury as a consequence. IIED can also be presented in the form of reckless infliction of emotional distress, but is still considered an intentional tort. IIED requires that the following elements be met by the plaintiff: • • •

Outrageous conduct by the tortfeasor; Conduct intended to cause severe mental anguish in the victim; and The victim’s suffering severe mental anguish as a consequence of the tortfeasor’s behavior.

“Outrageous conduct” can be determined by using a test of “reasonableness.” Again, we come back to whether a “reasonable” person standard exists. We can ask numerous questions to determine reasonableness: Would the potential victim suffer substantial emotional distress as a result of the tortfeasor’s action? Was the action(s) of the tortfeasor as extreme and outrageous as to shake the conscience of a reasonable person?

Further, the tortfeasor must act with intent to create mental anguish. These cases may also involve false imprisonment, conversion and assault, to name a few. For example, if a girl breaks up with a boy and the boy decides to hurt the girl by publishing nude photographs of her on the Internet, the boy has committed an intentional act to cause mental anguish.

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Finally, the victim must have actually suffered or continue to suffer emotionally from the actions of the tortfeasor. We again turn back to the “reasonable” person test: How would a reasonable person of ordinary sensibilities react to the tortfeasor’s actions? Although not necessary to prove an IIED case, reactions of a reasonable person can include physical symptoms brought on by emotional distress (i.e., lack of sleep; losing weight, appetite or vigor; illnesses; tremors; twitches; or sensitivity to certain things).

Reckless infliction of emotional distress occurs when the tortfeasor’s outrageous conduct causes the victim to suffer severe mental anguish. However, intent to actually produce the emotional suffering is not necessary; it is sufficient that the tortfeasor knew, or reasonably should have known, that the misbehavior would produce emotional distress. These cases are common in the mishandling of a deceased person, or stem from practical jokes played by the media. g) Invasion of Privacy Invasion of privacy is defined by the existence of publicly exploiting a person’s private affairs in an unreasonably intrusive manner. For example, the photographer who climbs a ten foot wall of a famous person’s home in order to take photographs of a private party is invading privacy.

There are four identifiable types of invasion of privacy: Appropriation, Unreasonable Intrusion, Public Disclosure of Private Facts and False Light in the Public Eye. More specifically: (1) Appropriation: defined as the use of the actual value of a person’s name or likeness for the tortfeasor’s financial gain. For instance, when a tortfeasor uses a person’s name or likeness without permission to gain some benefit, such as the unauthorized use of photographs and images.

(2) Unreasonable Intrusion: occurs when there is excessive and highly offensive intrusion and assault upon one’s seclusion or solitude. Eavesdropping is included in this area.

(3) Public Disclosure of Private Facts: occurs when tortfeasor communicates purely private information about a person to the public without permission, and a reasonable person would find this disclosure extremely objectionable. In this type of case, “truth” is not a defense.

(4) False Light in the Public Eye: occurs when the tortfeasor publicly attributes to another individual spurious opinions, statements or actions. This may occur when someone’s photograph or likeness appears in the paper with the incorrect headline and/or a negative story that does not relate but gives the impression of relating. h) Malicious Prosecution and Abuse of Process Malicious prosecution relates to the wrongful criminal prosecution of a case. Abuse of process relates to the wrongful filing of a civil action.

• Malicious Prosecution usually occurs when a private citizen files a groundless criminal complaint against another person with the prosecutor. Elements of malicious prosecution are: o o o o

Groundless criminal prosecution against the accused without probable cause; The complainant’s malice in filing the spurious charges; The accused’s acquittal from, or dismissal of, the criminal charges; and Injury to the accused as a result of the prosecution.

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Malice is described as ill will or the intentional doing of a wrongful act or injury of someone without excuse. A groundless criminal prosecution occurs when a complainant files a complaint without probable cause. Probable cause is the reasonable belief that the accused is guilty of the alleged crime. This belief need only exist at the time of the charges initiated for there to be probable cause. But once an investigation is done and shows the accused did not commit an alleged crime, the complainant’s insistence on the government’s continuing prosecution would be malicious prosecution.

Abuse of process is the civil equivalent of malicious prosecution. This generally occurs when the tortfeasor misuses a legal proceeding against another to achieve an unlawful objective. Elements of Abuse of Process are: • • •

Misuse of a legal proceeding, or threat of such misuse; Misuse to achieve unlawful objectives; and Injury to the victim as a result of the misuse.

Threats of a legal proceeding against another person can also rise to the level of abuse of process if the legal proceeding is misused to accomplish an objective to which the abuser is not legally entitled. This can include the filing of a false civil action, a mechanic’s lien, or a claim of some horrific nature in order to gain an advantage in a legal action. i) Sexual Harassment Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against an individual because of their race, color, religion, sex or national origin. It is Title VII that allows a victim to bring a tort action for sexual harassment. In a sexual harassment case, the victim must show that the workplace is permeated with discriminatory intimidation, ridicule and insult that alters the conditions of the victim’s employment, thereby creating an abusive and hostile work environment. iii)

Strict Liability (or Absolute Liability) Strict liability is a concept applied in situations involving dangerous and/or defective products, dangerous activities and dangerous animals. Although this doctrine is used in various cases, it is different than intentional torts and negligence because the tortfeasor is responsible under absolute liability regardless of how careful they may have been and in the absence of negligence and/or intent.

Although this theory is sometimes called “absolute liability,” there are defenses to strict liability causes of action. Strict liability cases are further limited in that the defendant is strictly liable for the damages only as a result of the risk of the activity; thus, not needing a finding of proximate cause. a) Product Liability Cases Product liability cases are probably the most common type of strict liability case. An example of a strict liability case is when a chemical manufacturer produces, designs, markets and/or sells a product that is later found to cause severe injuries, including birth defects. Victims who came in direct contact with the chemicals were not given a warning regarding what may result from exposure to the chemicals, although the manufacturer may not have had knowledge, at the time of manufacturing the product, of the potential result.

In product liability cases, a plaintiff who purchases a product from a retailer can sue both the retailer and the manufacturer, and can include actions based on product defect and breach of implied and express warranty. This is important for the protection of the consumer in that 202

manufacturers cannot put defective products on the market that could injure the public. See Greenman v. Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1963). Mass torts are usually brought in the form of a strict liability case such as cases brought by thousands of people against asbestos and/or chemical manufacturers. Elements in a product liability case include: • • • • •

The product must be sold; The product is defective; The defective product caused and proximately caused the injuries; The defect existed at the time the product left defendant’s hands; and The item was manufactured or sold by the defendant.

Of course, there are some products that are unavoidably unsafe, such as chemical products and experimental drugs. The benefits of these products outweigh the risks, and manufacturers are not usually held strictly liable for harm resulting from the use of these products.

b) Abnormally Dangerous Activities Abnormally dangerous activities include such activities as toxic waste disposal or the use of poisonous gas or chemicals. Strict liability is placed upon anyone or any company involved in an ultra-dangerous activity, such as manufacture of fireworks. In a strict liability action, it is important to determine whether an activity is or was abnormally dangerous. Pursuant to the Restatement (Second) of Torts § 520, a six-factor test can be used to determine whether an activity is abnormally dangerous: (1) High degree of risk – In other words, is there a high degree of risk of harm to a person, thing or property?

(2) Risk of serious harm – Is there the likelihood that the harm that results from the activity will be great?

(3) The risk cannot be eliminated by due care – There is an inability to eliminate the risk of harm through reasonable care.

(4) Not a matter of common usage – The activity is not a common usage.

(5) Inappropriateness – Inappropriateness of the activity to the place where it is carried on.

(6) Value – Extent to which the value is outweighed by the risk or danger involved. c)

Dangerous Animals Lastly, the doctrine of strict liability can be imposed on someone who owns or keeps dangerous and/or wild animals. This includes wild animals that have been purchased or rescued, and can include dogs that have shown a propensity to attack. Whether or not the animal trespasses, an owner of a dangerous animal that has the propensity to cause harm can be held strictly liable for injuries to a person or damage to property if harm occurs.

d) Vicarious Liability Vicarious liability is a secondary form of strict liability, allowing for a third party to be responsible for the actions of a tortfeasor. It is also known as the Doctrine of Respondeat Superior, which is a Latin term meaning “let the master answer.” This doctrine is used in tort law when a parent is responsible for the actions of a child, or more commonly, when an employer is responsible for the actions of an employee.

For example, an employee working for We R Flowers is making a delivery. He falls asleep at while driving, crosses the median, and drives head-on into the victim’s vehicle, causing 203

significant property damage and personal injuries. Further, the driver has a bad driving history, but the employer failed to perform a background check prior to hiring the driver and allowing the driver to deliver flowers. The employer could be held responsible for the damages resulting from the accident. e) Joint and Several Liability

f)

Joint and several liability refers to the actions of two or more persons or entities acting in concert to the detriment of another. Two people and/or entities can be joint tortfeasors and can be jointly and severally liable for damages resulting from their actions. When joint and several liability is pled, each defendant can be held responsible for the entire harm. However, in most cases, defendants will concur on the amount of liability of each defendant. This concept is used often in cases where victims go after “deep pockets” by suing every possible party.

Defenses to Strict Liability Defenses to strict liability cases include “lack of proximate cause” and “assumption of the risk.”

As discussed above, lack of proximate cause can be a defense when the plaintiff was not directly affected by the activity of the defendant. One example seen in tort manuals usually involves the dangerous activity of hauling dynamite, or someone carrying a package of dynamite. In and of themselves, these activities are unquestionably dangerous. However, while the dynamite is being hauled, the truck is involved in a car accident with another vehicle, or the person carrying the package is tripped up by an earthquake and drops the package. The person in the car accident cannot receive damages under a theory of strict liability because the accident does not rise to the level of dangerous activities, but merely negligence. In the second instance, an “Act of God” cannot be blamed for what is out of the control of the defendant.

“Assumption of the risk” is a defense used in strict liability cases when a person knowingly and voluntarily subjects himself to danger. If this defense is proven by the defendant, the plaintiff is barred from any recovery. Assumption of the risk is covered in more detail below.

iv) Professional Liability Professional liability is yet another type of negligence case. Professionals are held to a test of reasonableness and to a certain standard, usually the same standard of care as another professional in the community. Thus; an engineer in a local community that does not build skyscrapers may not be held to the same standard as an engineer that works in an urban community and builds high-rise apartment buildings. These standards apply to all professionals and are used in determining negligence in medical negligence cases as well. The questions asked to determine negligence are related to the failure of a professional to have and utilize the appropriate skills and knowledge commonly possessed by other professional members of the community. Professionals also have a fiduciary duty to their clients. This is a relationship of trust and confidence that a client has in a professional, and a professional’s obligation to the client.

D. Defenses of Intentional Torts Intentional torts also have a special set of defenses. Many of these defenses are set apart to be used in a specific instance. For example, if someone has been sued for conversion, a specific defense can be “regaining possession of chattels.” Maybe the defendant allowed for the use of farm equipment and the plaintiff refused to return the equipment. The plaintiff then filed suit for conversion after the defendant took the farm equipment back. Defenses for intentional torts include:

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•

Consent – Plaintiff was given consent to use or interfere with a person or person’s property, as long as the plaintiff has not exceeded the scope of consent. Consent can be explicit or implicit.

•

Self-defense – A person can use reasonable force to protect him/herself or another against imminent harm.

Defense of property – A person is entitled to use reasonable force to protect his/her property.

• •

Regaining possession of chattels – A person is entitled to use reasonable force to regain his/her possessions as long as the pursuit of the possessions is fresh.

•

Necessity – Can be public or private, when a person is entitled to harm the property of another out of necessity, like in the event of further damage or to protect a person’s interest.

There are numerous defenses available in tort cases depending on the case. Specific defenses in cases involving intentional torts and strict liability are discussed above under those sections. In all cases, for a defendant to properly use a defense, the defense must be pled in the answer to the complaint, and can only be used by the defendant in an action a) Contributory Negligence Contributory negligence is a defense stating that the plaintiff’s own negligence contributed to injuries. To prove this defense, the defendant must prove all of the same elements as required to prove negligence. There must be a showing of a duty of care to oneself. However, the plaintiff is allowed to rebut a contributory negligence defense by using the theory of the last clear chance doctrine, which implies that the defendant had the last opportunity to avert or avoid the incident that caused the injuries, but failed to do so, ultimately causing the incident to occur. b) Comparative Negligence Comparative negligence is an alternative defense to the contributory negligence theory, allowing the liability of the defendant to be adjusted or reduced by the percentage of plaintiff’s contribution to his/her own injuries. The goal is to keep defendant from paying for something that was plaintiff’s fault, if found liable. The defendant must prove the following elements to show comparative negligence on the part of plaintiff: • • • •

The plaintiff was negligent in contributing to his/her own injuries; Calculation of the percentage of plaintiff’s negligence that contributed to the injuries must be made; Calculation of the percentage of defendant’s negligence must also be made; and Defendant must be more negligent for plaintiff to win.

Balancing the percentages is sometimes called “culpability factoring” or “liability apportionment.”

The plaintiff’s damages are adjusted pursuant to the percentage of culpability of each party. Although lawyers may suggest percentages in argument, the trier of fact is left to determine the exact percentages. c)

Assumption of the Risk Assumption of the risk is a defense used when it is alleged that the plaintiff assumed a risk knowingly and willingly to the possibility of harm. An example of where this defense may be used might be someone attending a sporting event and being subsequently injured by a tool of the trade, 205

like a flying piece of wood from a broken bat, a fly ball, or a tire from a race car that crashed, injuring or killing someone. These are risks that are considered reasonable when attending these types of sporting events. The elements for an assumption of the risk defense are: • •

Plaintiff voluntarily assumes the known risk; and Plaintiff has a full appreciation of dangers involved in the risk.

Further, there are two types of assumption of the risk: (1) Express assumption of risk (which cannot be against public policy); and (2) Implied assumption-of-risk.

This defense insulates the defendant from being found negligent. Plaintiff must have voluntarily decided to engage in an activity that plaintiff knew (or reasonably should have known) was dangerous. In some jurisdictions, assumption of the risk is an absolute defense to a claim of negligence. d) Immunities Some people and entities have complete immunity from negligence where plaintiff is barred from recovery in a tort action. The most common immunity is governmental immunity. The federal government is immune from tort liability pursuant to the Federal Tort Claims Act. There are limited exceptions to this immunity which are outlined in the Act. These exceptions allow a victim to bring a tort action against the federal government for limited damages.

Although several states still enjoy governmental immunity, many have abolished part of the immunity. Many states have adopted a tort claims act similar to the Federal Tort Claims Act, taking responsibility for their employees’ actions.

Local governments are also afforded some immunity, depending on the activity being performed.

Local governments perform two types of activities: governmental and proprietary. Governmental actions are those that are necessary to the health and well-being of citizens, such as police and fire departments and school systems. Proprietary functions are those that can be privatized; they are activities that bring in revenue for the local government, but could easily be performed by a private corporation as opposed to the government. Examples of proprietary activities include running a city airport or a public swimming pool. Proprietary functions are not immune from tort liability.

Public officials given immunity include consuls, legislators and judges, because they might otherwise be in constant fear of being sued for performing their duties. This is known as diplomatic immunity and extends to those acts that are being performed in the scope of a public official’s duties and job responsibilities.

Other immunities that existed, but have largely been abolished by most states, include: parent-child immunity; spousal immunity and charitable immunity. e) Statutes of Limitation Statutes of limitation set forth the time limit in which a victim can bring a lawsuit for injuries before he/she is forever barred from bringing an action in court. The deadline is calculated starting with the date of injury or damage for most tort actions. Various statutes set a maximum amount of time in which an action can be taken in a court of law. For instance, negligence actions must be brought within two years of the date of injury in most states. Statutes of limitation can differ, depending upon 206

the type of tort and the state laws that govern. The statute of limitations is one of the most important dates a paralegal can confirm with the attorney at the outset of a case. f)

Statute of Repose Statute of repose is a statute of limitations in a products liability case and is calculated from the time of sale of the product. Thus, if there is a two year statute of repose and the product was sold on August 1, 2011, a negligence action against the manufacturer of the product must be brought no later than August 1, 2013. When calculating any deadline, be sure to calculate for less than 30 days in the month of February to get an accurate date.

E.

Effects of Insurance Determining insurance coverage at the outset of a case for either party is important due to the effects of insurance during and subsequent to a legal action. Insurance coverage can be an asset, and in some cases, a burden. Insurance companies, whether health or automobile coverage, may have rights to subrogation and termination. Additionally, some insurance companies have a clause requiring that disputes be arbitrated rather than filed in a court of law. In any event, understanding basic insurance coverage and characteristics is important. a)

Automobile Insurance Most states now require that drivers have some type of insurance coverage, including, at a minimum, liability coverage. Other types of coverage available through automobile insurance include: medical payment (reimbursement of medical expenses incurred when a driver or passenger of a vehicle involved in an accident is injured); comprehensive coverage; collision coverage; accessory coverage (emergency road service, car rental, death and disability); uninsured motorist (UM) coverage; and underinsured motorist (UIM) coverage.

b)

Subrogation Subrogation is defined as the right of an insurer to institute suit in the name of the insured against the responsible party to collect for monies paid by the insurer to the insured. Subrogation can occur when a victim is involved in a car accident but does not sue the tortfeasor. The victim’s insurance company pays for the repairs to the vehicle, and will ask for the victim’s assistance in a suit for subrogation of the amounts paid out to the victim or insured. Suit is usually in the name of the insured against the tortfeasor. In another instance, a health insurance company may also subrogate for amounts paid to the insured for injuries. Many times an insurance company will recover funds from a settlement or judgment paid to the plaintiff.

Private insurance companies, as well as Medicaid, can subrogate. Medicaid is a federal government health insurance plan for the indigent, and is the largest health insurer in the United States.

Subrogation by Medicaid has become an issue in many tort claims as the federal government and state governments attempt to hold third parties liable and recoup more funds paid out on behalf of Medicaid recipients. More at issue is the beneficiary’s mandatory assignment of rights for Medicaid subrogation. Formulas are generally used to establish settlement amounts, attorney fees and costs contributions and other reimbursements.

Medicaid should not be confused with Medicare. Medicaid is based on a need for care and financial need; Medicare is based on age and/or disability and is not subject to an income or asset test.

Medicaid is funded jointly by the federal government and the individual states. Individuals must meet specific financial and “need for care” requirements in order to receive Medicaid benefits. Medicare is 207

a government health insurance program for people over 65 and for those who are on Social Security disability. c)

ERISA ERISA is an acronym for Employee Retirement Income Security Act of 1974. The Act was established by federal law to set minimum standards for most voluntarily established pension and health plans in private industry to protect the individuals that benefit from these plans. The Act was implemented and is managed by the U.S. Department of Labor and has numerous amendments. What is important to paralegals working in the area of torts is to understand the requirements placed upon private employers offering voluntarily established pension and health plans.

Private employers must provide participants with plan information including plan features, funding, grievance and appeals processes and how to receive benefits. The employer must also have a plan in place that provides fiduciary responsibilities for those who manage and control the plan and the plan’s assets. Under ERISA, the plan must also provide and inform participants about their right to sue for benefits and/or for any breaches of fiduciary duty by the plan’s managers. In many instances, these types of plans usually require a participant, who believes there has been a breach, to arbitrate and not file a lawsuit in the court system.

There have been several amendments to ERISA to expand protections that a paralegal should be aware of, including the addition of COBRA (Consolidated Omnibus Budget Reconciliation Act), which allows participants and their family members a right to continue health coverage for a limited time after employment is terminated. Another important amendment is HIPAA (Health Insurance Portability and Accountability Act), which provides protections against health discrimination in health care coverage. HIPAA-specific authorizations are now used to request medical records and other health information in tort actions.

d)

Workers’ Compensation Workers’ compensation is another tool to protect both workers and employers for work-related injuries. The system of worker’s compensation arose out of the industrial revolution in the nineteenth century where physical labor with machines became more prevalent and workers began to get injured on-the-job. If a private employer participates in a workers’ compensation plan, it relieves the employer from tort liability for on-the-job injuries to their employees by proceeding with a workers’ compensation claim. However, an employee gives up their right to sue their employer in a court of law. Although the employee gives up a right to a jury trial, the employee is also promised that reasonable medical care and expenses will be taken care of as well as lost wages. Although the federal government provides certain plans for specific classes of workers, workers’ compensation is regulated by each state individually through an enactment of workers’ compensation laws. Rules and regulations are put into place for the filing of a claim, payment of medical expenses and payment of lost wages. A paralegal will need to understand their state's procedures for filing a workers' compensation claim or dealing with an appeal of a decision.

F.

Remedies i)

Damages Damages are divided into three categories: Compensatory, punitive and nominal. More specifically: a) Compensatory Damages

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Compensatory damages are those actual damages designed to compensate the victim for the tortfeasor’s negligence. These are the most common damages plead for by a plaintiff and awarded by a jury. There are two categories of compensatory damages: “general” and “special” (also known as “non-economic” and “economic” damages).

• General Damages represent damages that are generally a result of the action by the tortfeasor. They are damages that are expected for a particular kind of behavior or action. Pain and suffering is one kind of general damage. Anyone physically injured due to the unreasonable actions of a tortfeasor is likely to suffer pain. These damage amounts need not be specifically plead.

• Special Damages represent damages that are unique and special to the plaintiff, and are usually known amounts. They represent damages such as medical expenses, lost wages or property repair. These damages must specifically be plead and proven in a negligence action.

Sample damages plead for in a negligence case are listed below:

Compared side-by-side: Compensatory Damages (General):

Compensatory Damages (Special):

Pain and Suffering

Past and future Medical Expenses (emergency room, physical therapy)

Mental Anguish

Past lost wages (missing work due to accident for treatment); Loss of Earning Capacity (not being able to work as before)

Disfigurement

Property Damage (damage to vehicle or other property)

b) Punitive Damages Punitive damages are usually awarded after a finding of gross negligence and given over and above compensatory damages to a plaintiff in order to punish the defendant and to keep a particularly bad act from happening again. Some jurisdictions have other terms for punishment-type damages, including “exemplary” or “treble.” Punitive damages are designed to punish the defendant for his/her behavior and to deter from the same or similar behavior in the future, not to make the plaintiff whole again. These damages cannot be awarded in a simple negligence case since there must be a finding of gross negligence or reckless behavior by the trier of fact. They are usually plead for separately by the plaintiff and awarded separately by the jury. c)

Nominal Damages Nominal Damages are not usually recoverable in actions of negligence, but are awarded by a jury when a plaintiff has proven a tort was committed and used as a symbolic gesture. For example, nominal damages (e.g., in the amount of one dollar) may be awarded in a minor car accident or minor slip and fall accident where the plaintiff has not proven actual loss, but has proven the elements of a specific tort.

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G. Injunctions An injunction is a court order that orders a party to refrain from or to perform certain acts. An injunction can be temporary or permanent and is used in various types of lawsuits. In many cases, a temporary (or preliminary) injunction or a temporary restraining order (TRO) can be issued quickly to restrain a party to a suit from doing something unjust to the other party. For instance, a party may threaten to sell property that has been allegedly converted from another party. The victim can file an original complaint along with a request for an injunction restraining the person from selling the property and putting the property under someone else’s control for a specific period of time. The victim can seek a permanent injunction during the course of the proceedings. Since injunctions are considered court orders, they must meet certain statutory requirements pursuant to FRCP; a person can be held in contempt for violating an injunction. ©2024 Cynthia Minchillo. All rights reserved.

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Sample Questions

Q.

What is the term for money asked for or paid by court order to a plaintiff for injuries or losses suffered? a b. c. d.

malpractice negligence damages liability

A.

c.

Damages

Q.

What is the term for a court’s decision in a civil case? a. b. c. d.

Negligence Judgment Verdict Malpractice

A.

b.

Judgment

Q.

Which type of law protects a person's property by protecting against interference with the owner's exclusive use of the property, and against the property being taken or damaged? a. b. c. d.

common law settlement tort law civil law

A.

c.

Tort law

Q.

A lawyer who does not charge a client by an hourly fee, but instead receives a portion of the recovery (usually 30-40%) if the plaintiff wins. If the plaintiff loses, the attorney does not receive a fee. The plaintiff, however, might have to pay certain reasonable expenses like the cost of filing the lawsuit. What type of arrangement is this called? a. b. c. d.

A.

contingency fee class action no-fault insurance worker's compensation

a.

Contingency fee. A lawyer typically arranges a contingency fee when the plaintiff has a strong case and good chance of recovering damages.

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Q.

When the defendant is engaged in an activity so dangerous that there is a serious risk of harm even if he or she acts with utmost care, it is called what? a. b. c. d.

negligence strict liability common law tort

A.

b. Strict Liability is a concept applied in situations involving dangerous and/or defective products, dangerous activities and dangerous animals.

Q.

Social traditions dictate that for public policy reasons certain groups of people should not be sued, even if their conduct was improper. These include governments and certain government officials, also children not allowed to sue parents or vice versa.

What is this concept called? a. b. c. d.

Minor Immunity Liability Judgment

A.

b. Immunity.

Q.

What is an action called when it is done with the intent of injuring a person, his/her property, or both? a. b. c. d.

Class action Negligence Strict liability Intentional wrong

A.

d. Intentional wrong

Q.

Lawsuits brought by clients or patients who claim that a professional person provided services in a negligent manner are referred to as: a. b. c. d.

Liability Negligence Malpractice Judgment

A.

c.

Malpractice

Q.

When more than one plaintiff or injured party in a situation form a group and bring their lawsuits together to have the courts address all of those who are likely also affected by the outcome. a. b. c. d.

Class action Deep pockets Minor Comprehensive coverage

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A.

a.

Class action – For example, an entire town gets its drinking water from the same source and an industrial plant pollutes the water, the townspeople can file a class action suit against the company.

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Domain 02: Substantive Areas of Law CRIMINAL Classifications of Criminal Conduct Crimes are first classified by seriousness. A felony is a serious crime potentially punishable by imprisonment for more than one year or under federal law and in some states, with death. A misdemeanor is a crime that is less serious than a felony and is usually punishable by fine, penalty, forfeiture or brief confinement in a local jail (not prison) for up to one year.

Criminal conduct can be further divided into four classifications based on the type of harm caused: crimes against property, crimes against persons, crimes against morality and crimes against public order. For a person to be charged with a criminal offense, they must have allegedly harmed or affected the following: •

Crimes against property are those crimes which involve property belonging to a person or entity, e.g., theft, larceny, robbery, embezzlement, trespass, extortion and arson.

•

Crimes against persons are just that – crimes which involve acts that cause bodily harm or a threat of bodily harm against another person, e.g., homicide (murder), assault, battery, kidnapping, rape, stalking and harassment.

•

Crimes against morality are generally called “victimless” crimes because they generally involve willing participants. Examples of morality crimes are prostitution, gambling, pornography and bigamy.

•

Crimes against public order, public health, and public safety involve conduct which disrupts the peace, safety and security of the public or community. Crimes against public order generally range from minor offenses such as disorderly conduct, disturbing the peace, public intoxication, public urination, etc. Crimes against public health and safety can also be very serious, for example, drug offenses, driving under the influence offenses, hate crimes, rioting, and inciting violence.

Defenses The prosecution has the burden of proving a defendant guilty. Interestingly, the presumption everyone is familiar with - innocent until proven guilty - is not codified in the Constitution; but rather, is provided in common law and codified by statutes.

In criminal law, a defendant is afforded the right to plead or identify an affirmative defense prior to trial.

An affirmative defense is a set of facts which tend to excuse the defendant from the crime for which they have been charged. The three most recognized affirmative defenses are the alibi defense, insanity defense and self-defense. There are also other defenses which are used in order to, at the very least, place reasonable doubt in the mind of even only one juror that a defendant should not be convicted of the crime for which they are charged. Raising an affirmative defense does not necessarily mean a defendant should, or will be, automatically acquitted; they have the burden of proving that defense.

Alibi An alibi is a defense offered by a defendant as justification that they could not have committed the crime because they simply were not there. The defendant must provide evidence of places, dates and

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times where they claim to have been at the time alleged, along with the name, address and telephone number of any witnesses the defendant intends to rely upon to corroborate their alibi defense.

Insanity Insanity is a defense which is defined differently in various states, but in general, this defense can be offered in two instances: 1) either a person, due to their mental state, did not know what they were doing at the time of the commission of the crime; or 2) if they did know, they could not appreciate the fact that what they were doing was wrong. Lack of mental culpability plays a role either way.

If a defendant uses the insanity defense, for whatever reason, there are strict standards for testing and a defendant must submit themselves to psychological exams in order for the insanity defense to be available and provable. Note: There is a difference between the affirmative defense of insanity (a legal conclusion, which may or may not involve a mental health diagnosis), and fitness to stand trial.

Fitness hearings come into play when a defendant is suffering from a mental condition which renders them unable to understand the court proceedings, the charges they face, and are unable to assist their attorney with their defense, If a defendant is found to be “unfit” for trial, the charges will remain unresolved until such time the accused is deemed restored and fit for trial.

The insanity defense involves proof of the defendant’s mental state at the time of the act that resulted in the criminal charge, while fitness refers to their mental state at the time of the court proceedings.

Fitness is not a defense.

Lastly, if a defendant is found not guilty by reason of insanity, they may still face a civil commitment process by which they are ordered into the custody of mental health facilities until such time as they are no longer a danger to themselves or others. Thus, in cases of violent acts, while the defendant may be free of the criminal charge, they are not actually released unless the judge is convinced that they can live safely in society.

Intoxication Whether voluntary or involuntary, intoxication is a defense to a crime when it negates (to nullify, make ineffective) the existence of an element of the crime. For example, if a person is intoxicated and goes into a neighbor’s apartment without permission because they thought it was their apartment, then intoxication would be a viable defense as it explains the reason for the entry and shows a lack of criminal intent. Note: intoxication is not available as a defense for DUI (driving under the influence) offense.

Infancy Infancy is a defense used when incapacity is at issue. This occurs when children between the ages of 7 and 14 are accused of committing a crime.

Self-Defense Self-Defense is viable when: 1) a person has a reasonable belief their life is in imminent danger; or 2) they are in danger of bodily harm and the person uses a degree of force reasonably necessary, including deadly force, to protect themselves. An element of this defense in most jurisdictions is that the defendant cannot have been the initial aggressor of the violence. Also, the elements of this defense vary from state to state.

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In some jurisdictions, there is a “duty to retreat” where, if there is a reasonable opportunity to retreat and avoid violence, it must be taken, and if not, the defense of self-defense will be unavailable in these jurisdictions. Alternatively, in some jurisdictions, it is permissible for an individual to stand their ground if they feel threatened by an imminent attack, and there is not duty to retreat in these jurisdictions.

Defense of Others Defense of others is a defense that is like self-defense in that it is justifiable when, in defense of another person, reasonable force - including deadly force - can be used when a person believes the intended victim had the right to use that force but was unable to do so.

Defense of Property Defense of property is also a variation of self-defense, and in many jurisdictions is only available for the use of non-deadly force. In these jurisdictions, deadly force may never be used when only defending property. A person has the right to protect their property if they believe that the property is in immediate danger.

It is always the prosecution’s burden to prove the defendant guilty of the crime beyond a reasonable doubt. While it is not the defendant’s burden to prove themselves innocent under the Constitution, to pursue an affirmative defense, the defendant must prove the facts that support that defense. In other words, in an affirmative defense, the prosecutor must still prove the crime, while the defendant admits the conduct, but must prove that certain facts or conditions excuse them from criminal guilt.

Constitutional Rights The Bill of Rights (first 10 amendments) of the U.S. Constitution, and the 14th amendment which applies the Bill of Rights to the states and state constitutions, provide those who are accused of a crime with certain protections. An understanding of these constitutional protections must also include an understanding of the consequences where government (law enforcement) conduct violates these rights.

The Exclusionary Rule is a common law legal principle first adopted by the US Supreme Court back in 1912 in Weeks v. United States. In Weeks, the U.S Supreme Court held that evidence obtained by police in violation of the defendant’s constitutional rights cannot be used to prove the criminal charges against them. If the only evidence available to prove a criminal charge has been obtained illegally, then the case must be dismissed. This is what is commonly referred to as “getting off on a technicality.” The “technicality” is that the police have violated the constitution in obtaining the evidence to prove the case.

The Exclusionary Rule is the way the court enforces constitutional rights in criminal cases. It is meant to deter government misconduct and preserve the rights of individuals.

Motions to Quash, Motions to Suppress and/or Motions to Quash and Suppress are filed by the defense and result in a pretrial hearing in which the court decides whether the defendant’s constitutional rights were violated during search, seizure and/or interrogation processes conducted by the government. If the court grants the Motion, the Exclusionary Rule applies to bar the prosecution from using any of the tainted evidence.

A paralegal employed in the criminal law area should familiarize themselves with the three most commonly referenced Constitutional Amendments in the criminal field:

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The Fourth Amendment The Fourth Amendment protects our right to privacy and governs search and seizure. The Fourth Amendment of the U.S. Constitution protects us from unreasonable government intrusion into our personal and private sPACE®s by requiring the government to obtain a warrant before entering areas in which we have a reasonable expectation of privacy.

For a search warrant to be issued, the law enforcement agency requesting the search warrant must submit an application and verified affidavit to a magistrate or judge who determines if there is probable cause to support the issuance of a search warrant, It is the responsibility of the agency seeking and executing the search warrant to follow the procedures to ensure that the search warrant is properly requested, executed and the seized evidence is properly documented and stored. Failure to follow any one of these steps could result in challenges to the validity of the warrant, the underlying probable cause and the evidence seized via pretrial hearings on Motions to Suppress.

There are several recognized exceptions to the requirement of first obtaining a warrant before searching or seizing evidence or people. Below are a few of the most referenced exceptions: •

Consent: if someone gives the government consent to enter and/or search, then no warrant is required.

•

Search Incident to Arrest: Police may search individuals who are taken into police custody without first obtaining a warrant. This exception is justified as it allows the police to confiscate any contraband or other items that may be used by the arrestee to harm themselves or others, or to escape while in police custody. Under this exception, police may search the body of the person, their clothing and the area within their arm’s reach at the time of the arrest.

•

Stop and Frisk, also known as a Terry Stop: This exception to the warrant requirement comes from the 1968 landmark U.S. Supreme Court case, Terry v. Ohio which held that a person’s Fourth Amendment rights are not violated, and no warrant is needed when a police officer stops and frisks an individual, as long as the officer has a reasonable suspicion that the person has committed, is committing or is about to commit a crime. Incident to this temporary stop, the officer may conduct a brief pat-down of the outer clothing for weapons for safety purposes. The Terry Court reasoned that such a brief, nonintrusive interaction does not significantly interfere with our rights against unreasonable searches and seizures, and that such conduct by officers is part of their duty to investigate and prevent crimes. Note: the standard requiring the officer to have reasonable suspicion for a stop and frisk is less than the probable cause standard required for a warrant.

•

Plain View is the warrant exception that applies to items in the “plain view” of an officer who has a right to be in the position they are in to have that view, at the time they observe the item or conduct, and the criminal connection of the item is immediately apparent without further investigation. For example, an officer enters a home with a search warrant to seize a stolen piano, and upon entering the living room to search for the piano, they see a bag of cocaine, a scale, and piles of cash stacked up on a coffee table. They do not have to get a warrant to seize these items as they are in a room where the stolen piano that is the subject of the warrant, may be reasonably located, and there is probable cause to believe these clearly visible items are contraband. Alternatively, if the officer with the same warrant goes into the kitchen and opens a small drawer and finds contraband, they have exceeded the bounds of the warrant, as a stolen piano could not possible fit in a kitchen drawer, and items found there

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would not be considered to be in “plain view.” The secondary search would be illegal, and any items seized, or evidence obtained as a result of that illegal intrusion would be subject to the exclusionary rule.

The Fifth Amendment The Fifth Amendment of the U.S. Constitution guaranties due process, protects against forced selfincrimination, and bars double jeopardy.

Due Process Due process guarantees that an accused shall l not be deprived of life, liberty or property without reasonable notice and a fair, public, impartial trial. The due process clause limits the government’s power to enact laws which would unduly interfere with an individual’s life, liberty or property. The Due Process Clause of the Fifth Amendment of the U.S. Constitution is applied to the individual states by the Fourteenth Amendment which begins with the phrase, “No state shall deprive…” This is the vehicle by which all of the civil rights enumerated in the Bill of Rights in the federal constitution apply to all states in our nation.

Self-Incrimination The Fifth Amendment protection against self-incrimination protects an accused from being forced to incriminate themselves by providing individuals the right to remain silent when being questioned by police and to choose not to testify in their criminal trial.

Double Jeopardy The Fifth Amendment also protects someone from double jeopardy, or the trying of a person twice for the same crime. Note: the ban on double jeopardy only applies to criminal cases; one can be tried for a crime, and even found not guilty, and still be sued in civil court for damages.

Also, double jeopardy does not bar someone from facing charges for the same act in two jurisdictions. For example, if someone robs a federal bank, it is a violation of state criminal laws against robbery and a violation of federal criminal laws. Thus, this person can be tried in both state and federal criminal courts for the same act, because they violated statutes in different jurisdictions. Here, double jeopardy does not apply.

The Sixth Amendment The Sixth Amendment of the U.S. Constitution guarantees the accused the right to a trial by jury in all criminal prosecutions, to confront the witnesses against them, to have the means to obtain witnesses to testify on their behalf and to be represented by counsel.

The defendant’s right to confront and cross-examine witnesses against them means that the witnesses and evidence are available to be tested by questioning (cross-examination). There are no secret trials or witnesses.

The right of representation includes the right to have an attorney and for those who do not have sufficient funds to hire an attorney, the court appoints, and government pays, an attorney for the defense in cases where the person is charged with a jailable offense.

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Elements of a Crime The two main components of the elements of a crime are mens rea and actus reus. Both must be proven for a defendant to be convicted of a crime; the burden rests on the prosecution to prove these two elements.

•

Mens rea, in Latin, means guilty mind. In the justice system, it refers to criminal intent or state of mind.

•

Actus reus, in Latin, means guilty act. In the justice system, it is commonly referred to as the criminal act.

One element cannot stand on its own to sustain a conviction. There is a causal relationship between the two elements of a crime. For example, if a person “thinks” about robbing a bank (mens rea) but does not follow through with the robbery (actus reus), then no crime has been committed and they cannot be charged. On the other hand, if that person carried through with that thought and committed the robbery (actus reus), then they have satisfied both elements: intent + act that constitute the crime. .

All elements of the crime charged must be proved beyond a reasonable doubt to obtain a conviction.

Evidence Evidence is information that is used to prove something. Evidence can be presented in many different forms. It can come from documents, objects and witness testimony. Evidence fulfills the burden of proof. The Federal Rules of Evidence govern federal criminal proceedings. While the Rules for criminal cases outside of federal cases will vary from state to state, they tend to be generally similar across jurisdictions however, there are some exceptions. The purpose of the Rules of Evidence is to ensure that evidence used in court is relevant, reliable and trustworthy.

Direct Evidence Direct proof of a fact that requires no inference; it is evidence based on a witness’s personal knowledge or observation of that fact.

Circumstantial or Indirect Evidence Evidence that establishes collateral facts from which the main fact may be inferred.

Circumstantial evidence is direct evidence of a fact from which a person may reasonably infer the existence or nonexistence of another fact. Circumstantial evidence can be effectively used to prove guilt in a criminal case.

The difference between direct evidence and circumstantial evidence is illustrated by the following scenario: A prosecutor is attempting to prove that it was raining on a certain day. Direct evidence of the rain would be a witness testifying that they saw the rain, walked in the rain, got wet in the rain, and so forth. They are testifying as to their own experiences and observations. Circumstantial evidence of the rain would be a witness testifying that they saw people coming in with wet umbrellas, wearing wet raincoats, though they, themselves had not looked out a window or stepped outside on that day. The observation of the wet umbrellas and raincoats makes it reasonable to conclude that it is raining. Since the witness did not personally experience the rain or see the rain, their testimony is circumstantial evidence of the rain, but it is an effective and reliable way to prove this fact.

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Hearsay Evidence Evidence consisting of a statement made by someone outside of court, offered by someone else who is testifying in court, and offered to prove the truth of the substance of that out of court statement. Hearsay is testimony given by a witness who relates not what they know, but what they have heard others say outside of court.

As a rule, hearsay evidence is generally not admissible as it is unreliable and violates the Sixth Amendment right to confront and cross-examine the witnesses. Hearsay is like gossip- the person who is alleged to have made the original statement is not there to be cross-examined, not there for the judge/jury to evaluate their truthfulness, or to explain the context in which the statement was made However, the Rules of Evidence establish specific exceptions by which hearsay evidence may be admissible under the circumstances provided in the exception.

Stages of Criminal Procedure Investigation Criminal cases begin with an investigation or report of a crime. When there is probable cause to believe that a crime was committed by an individual, police can obtain an arrest warrant, or make a warrantless arrest on the scene if the officer is present on the scene and has probable cause.

When a suspect is arrested, they are in police custody and are ultimately brought to the police station for “booking.” Booking is the process of making an official record of the name and other personal details of a criminal suspect.

Arrest A person is also deemed to be in police custody and under arrest at times even outside of the police station when a reasonable person in similar circumstances would think they are not free to leave. An arrest is a seizure of the person. For example, when a police officer pulls over a driver for speeding, that person is considered to be “in custody” and “under arrest” as they are not free to leave while the officer issues the ticket. Another scenario is the Terry stop (a temporary detention on the street), if it exceeds a minimal intrusion for a few brief questions, it can escalate to be deemed an arrest. If there is no probable cause, and no warrant, this can become an illegal seizure of the person, and subject to the Exclusionary Rule discussed earlier in this chapter.

Miranda Warnings Once a suspect is in police custody (or under arrest), police must, prior to questioning, inform them of their Fifth Amendment Right against self-incrimination, known as the right to remain silent, their Sixth Amendment Right, the right to an attorney and of the opportunity to receive an attorney at no cost if they do not have funds to hire their own attorney. These are referred to as the Miranda Rights or Miranda Warnings, and come from the famous 1963 U.S. Supreme Court case of Miranda v. Arizona. The Miranda Court provided the analysis that, being in police custody is a coercive environment and that informing a suspect of their right to refuse to answer questions and the right to be represented protects against forced confessions and statements.

Thus, if a suspect is detained and questioned without being provided their Miranda Warnings, any statements they make are subject to the Exclusionary Rule as being obtained in violation of their fifth and sixth amendment rights.

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If a suspect is not under arrest, and is clearly free to leave, the police are not obliged to provide the Miranda Warnings. However, if the facts show that a reasonable person would have thought they could not leave, they are entitled to be given these warnings prior to any questioning, and a failure to do so, may result in exclusion of any statements made.

Bail Within a reasonable time, in most jurisdictions it is within 48 hours of an arrest, the police must bring the accused to court for a bail hearing. The court informally reviews the information leading to the arrest to initially confirm that there is probable cause to pursue criminal charges against that individual and set bail. The Eighth Amendment to the U.S. Constitution provides, “excessive bail shall not be required.” Bail is not meant to act as pre-trial punishment or as a fine, it is set to secure the defendant’s appearance for all of the court dates relating to their criminal case. Courts may set a “no bail” order in cases where it shown that the accused is a flight risk or will be a danger to the community if released pending their charges.

If the defendant posts the amount of money required for bail, they will be released from police custody while their case proceeds. If they do not have the money to post the bail set for their case, they will remain in custody (jail) while their case proceeds.

Charging the Offenses Only the government can bring a criminal case. Victims, police, and other individuals cannot prosecute criminal cases. Federal and local prosecutors determine whether to bring formal charges and determine what crimes will be charged.

The initial charging document in a criminal proceeding can be in the form of a sworn complaint (for misdemeanor and petty offenses) or by way of information or indictment for felony charges.

The prosecutor determines which method of formal charging to pursue. Both an information and an indictment are formal, written statements accusing a person of committing a crime.

Under the Federal Rules of Criminal Procedure, Rule 7, the defendant can waive the right to indictment, and the prosecutor can file a felony complaint rather than present the case to a grand jury; the defendant is then entitled to a preliminary hearing in open court. At that hearing, the prosecutor must show that they have enough evidence of the defendant’s guilt to warrant a trial. If the judge determines that this probable cause to charge the defendant, an Information is issued with the formal charges.

If the prosecutor decides to pursue felony charges by way of indictment, they must present evidence to a grand jury.

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Only a grand jury can issue a criminal indictment. When a grand jury is convened to investigate potential criminal activity, the panel must consist of 16 to 23 legally qualified members.

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While the grand jury is in session, only the prosecutors, the witness being questioned, interpreters when needed, and the court reporter may be present. Neither the judge, the defendant nor their attorney may be present, grand jury proceedings are secret.

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If a majority of a quorum of a grand jury agrees that criminal charges should be brought, they issue a “true bill” authorizing the indictment of the defendant on the criminal charges.

Arraignment Arraignment is the first formal, official appearance of the defendant in court where the judge will publicly read the formal charges against the defendant. Typically, at this hearing, if the defendant appears without a lawyer, the court will determine whether they qualify for the services of a court appointed lawyer. If the defendant is determined to be unable to raise funds to hire their own lawyer, the court will appoint a lawyer to represent them free of charge (paid for by the government). Public defenders are lawyers appointed by the court and paid for by the government to represent those accused of jailable offense who are indigent and unable to pay for their own lawyer. The defendant will also enter their plea of either guilty or not guilty at this time.

Perfecting Charges In order to perfect criminal charges against the criminally accused, the charging document, which is either the information or the indictment issued by the Grand Jury, must be properly filed with the Clerk of Court. Failure to file the formal charge may be grounds for a procedural issue and can lead to the dismissal of a case.

Pretrial Motions Rule 12 of the Federal Rules of Criminal Procedure sets forth the pretrial motions which may or must be filed prior to trial. Rules in state courts follow similar patterns but there may be variations. Pretrial motions that may be filed prior to trial which raise the following and can be determined without the necessity of a court hearing include: •

any defense;

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an objection; or

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a request.

Pretrial motions that must be filed prior to trial which raise the following and will be determined at a hearing include: •

Motion to Dismiss alleging a defect with instituting the prosecution;

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Motion to Dismiss alleging a defect in the indictment or information

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Motions to Quash and Suppress Evidence alleging illegal government conduct if the basis for the motion is known before trial;

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Motions in Limine – pretrial motions that ask the judge to rule that certain evidence not be referred to or offered at trial as being inadmissible. (Different grounds than for a Motion to Suppress)

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Rule 14 Motions to Sever Charges or Motion to Sever Defendants; and

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•

Rule 16 Motion for Discovery.

Typically, one of the very first pretrial motions a defense attorney files in federal criminal cases is the Rule 16 Motion for Discovery. The Discovery process in criminal cases is different than in civil cases because of the constitutional rights and seriousness of the consequences (loss of liberty and possible life). The landmark US Supreme Court case of Brady v. Maryland which ruled that the prosecutor’s suppression (hiding from the defense) of evidence favorable to an accused who has requested it, violates due process where the evidence is material (relevant) either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

The Brady case set the due process requirement of prosecutors who must produce requested evidence to the defense, even if it tends to help the defense. This allows the defense attorney to obtain a copy of the government’s case file on the defendant and evidence collected in the investigation of the criminal charge. A paralegal may be responsible for drafting this pretrial motion to assist the attorney in beginning to plan their defense of the case and provide a good analysis of possible pretrial motions which also need to be filed, e.g., Motions to Suppress.

A typical paralegal role is to assist the attorney in sorting and organizing the Brady materials and other discovery received in response to the Motion for Discovery. Paralegals are often charged with digesting (summarizing) witness statements, digital camera footage, other recordings, and indexing witnesses and police reports for easy retrieval during hearings.

As with all federal court proceedings, the court sets deadlines and the trial date in its scheduling order. Paralegals, more likely than not, are responsible for calendaring these types of important deadlines. In a criminal case, there will always be a deadline to file pretrial motions (motion cutoff).

Plea Agreements If a defendant chooses to withdraw their original plea of not guilty, they have the choice of either entering a guilty or nolo contendere plea. Without admitting guilt, a defendant may enter into a nolo contendere plea and can even have a nolo contendere plea agreement with the government in exchange for a more lenient sentence, a reduction of charges and, possibly, the dismissal of some charges.

A plea of nolo contendere is a stipulation (agreement) that the prosecution has sufficient credible evidence to prove the criminal charges, but the defendant is not admitting actual guilty. They are saying they are waiving a trial, and acknowledging that the government can prove the charges, but they are not agreeing that they are guilty. Such a plea is sometimes called an Alford plea based on the 1970 U.S. Supreme Court decision of North Carolina v. Alford. The judge will enter a conviction and proceed to sentencing in the same way as they would with a guilty plea.

However, unlike a standard plea of guilty, a nolo contendere plea cannot be used against a defendant as an admission in a subsequent criminal or civil case.

Sources of Criminal Law Common law is the body of law derived from published court decisions as opposed to statutes or even the Constitution. Common law interprets the statutory law and the Constitution.

Statutory law is law enacted by the legislature. Statutes may originate from federal or state legislatures or local municipalities.

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Penal code (criminal code) is the legal code governing crimes and their punishment. In federal law, this is known as the United State Code (U.S.C.).

Constitutional limitations are placed on the criminal justice system in order to protect the rights of citizens. Specifically, the Fourth, Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution which set forth the rights of an accused. See Domain 01: Paralegal Practice - U.S. Legal System.

Trial Practice Pretrial Preparation Opening and closing statements are not evidence, but demonstrative aids. A paralegal assisting their attorney with this part of pretrial preparation often has a role in preparing and assisting in creating demonstrative aids, such as charts, slide shows, videotapes and models.

Direct and cross-examination are the means by which attorneys question witnesses during trial.

A paralegal who assists their attorney with preparing witness testimony may be asked to prepare and gather specific witness documents and exhibits and to organize them in a witness folder, typically, a paralegal is asked to index and cross reference police reports with witness statements, lab reports and other forensic evidence, and create a trial notebook. Until a paralegal has time and experience in this field, their role will be limited, but yet important, as the attorney relies on wellorganized documents and exhibits for a smooth and professional execution of the witness questioning.

Witness/Expert testimony can make or break a case; ensuring each witness’s appearance is critical. One very important paralegal duty during pretrial preparation may consist of drafting subpoenas to appear and ensuring that those witnesses are properly served to appear in court. A subpoena duces tecum is a subpoena for records, and may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them. Such subpoenas are typically served on records keepers of police agencies, hospitals, labs, etc. to obtain reports, dash camera and body camera videos, confessions, statements, medical records, testing notes, and the like. Rule 17 of the Federal Rules of Criminal Procedure outlines the proper procedures for the issuance of subpoenas and service thereof.

Additionally, paralegals are often responsible for gathering and organizing documents pertinent to the testimony of each witness. Fact witness and expert witness documents will vary due to the difference in their roles as witnesses. An expert witness’ documents may consist of a curriculum vitae or CV. A CV is like a resume. Some other documents which may be contained in witness files are deposition transcripts, documents specific to that witness, photographs and possibly demonstrative aids, such as a timeline or physical evidence Attorneys will rely upon the contents of the witness folders to prepare for witness questioning.

With the growing presence of dashboard cameras in police vehicles and police body cameras, and with statutes requiring the video recording of police questioning in certain types of cases, a paralegal in the criminal law field is often tasked with viewing hours of digital media and preparing a summary and index of the relevant points and content. Paralegals are also often asked to do internet vetting of witnesses, including viewing of available social media posts.

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Exhibits are items of physical or tangible evidence offered to the court for inspection. During pretrial preparation, it is important to be clear which documents the attorney intends to rely upon as evidence in a case. The exhibits should be clearly identified, with an appropriate amount of copies made and properly placed in their respective folders. Additionally, a copy of each exhibit should be placed in the respective witness’s folder to assist the attorney in preparing to question that witness.

Discovery, as noted in the earlier section, is the pretrial method by which the defendant’s attorney requests disclosure of evidence from the government against the defendant. The defendant, in turn, is also required to disclose any evidence they intend to use.

Elements of a Jury Trial A jury trial is a two-part trial. The guilt phase is the first part of the trial and the sentencing phase is the second part of the trial. This is known as a bifurcated trial.

Voir Dire and Jury Selection Jury selection occurs when the clerk of the court contacts prospective jurors to report to court on a date certain. The attorneys on both sides receive a list of the prospective jurors prior to any trial in order to prepare for jury selection. This list will give the attorneys a general idea of the diversity of the jury panel. What the attorneys will look for when considering a prospective juror is whether they have prior jury experience, ties to the case in any way, personal or close experience with a criminal event in their life or any possible characteristic that could interfere with the juror’s ability to be impartial.

The means by which attorneys or judges choose jurors is called voir dire. During juror voir dire, each side has a specific amount of peremptory challenges and the number each side gets is different from state to state. For federal criminal trials, Rule 24 of the Federal Rules of Criminal Procedure provides that for a capital murder case (death penalty), each side has 20 peremptory challenges. In other felony cases which are punishable by imprisonment for more than one year, the government has 6 challenges and the defendant has 10 challenges. In misdemeanor cases which are punishable by fine, imprisonment of one year or less, or both, each side has 3 challenges. Preemptory challenges can be used for any reason, and generally, the attorney does not need to state the reason for excusing a prospective juror with a preemptory challenge, but such challenges cannot be used to systematically discriminate based on race, ethnicity or sex.

Challenges for cause These challenges are not limited, but must be supported by a specific reason, such as a juror’s bias or prejudice, which would disqualify that potential juror.

A jury consists of 12 persons unless otherwise stipulated. A jury may consist of fewer than 12 persons in the event a juror is excused for cause after the trial has begun. The Court may also empanel alternate jurors in the event other jurors cannot continue in their duty.

In a jury trial, jeopardy attaches (meaning the trial officially begins) when the jury is sworn (fully empaneled). In a bench trial (trial by a judge alone) jeopardy attaches when the first witness is sworn.

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Opening Statements These are not evidence. For the prosecutor, the opening statement is an opportunity to outline the case, including the defendant’s alleged crime and his/her theory of the defendant’s guilt.

For the defense, the opening statement is the attorney’s manner of relaying their client’s story to give the jury an idea of what the defendant’s case will be about. The opening statement occurs before the first witness testifies.

Witnesses There are two types of witnesses - fact/lay witnesses and expert witnesses: •

A fact or lay witness is restricted to giving an opinion or making an inference that is based on first-hand knowledge and is helpful in clarifying the testimony or in determining the facts.

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An expert witness is a witness who is qualified by knowledge, skill, experience, training or education to provide a scientific, technical or other specialized opinion about the evidence or a fact issue. However, an expert witness cannot give their opinion as to the ultimate guilt of the defendant.

Closing Statements (also called Closing Arguments) Like opening statements, are not evidence. The closing statement gives the attorney the opportunity to review the case and persuade the jury with the reasons why they should either find the defendant guilty or not guilty. The closing statement occurs after the last witness has testified and just prior to the jury retiring to deliberate the case.

Jury Instructions The instructions given by the judge to the jury explaining how the law applies to the case, the standard of proof which they must follow and what the jury must decide. The process of giving the jurors the instructions is called, charging the jury. Prior to closing arguments and charging the jury, there is typically an instructions conference, held outside the presence of the jury, where judges will hear suggested instructions from the attorneys and determine which statements will be provided to the jury. Paralegals may be tasked with the legal research and initial drafting of proposed jury instructions as well as finding case law to support the proposed instructions.

Jury Deliberation The process by which the jurors weigh the evidence and facts of the case in order to reach a verdict. In a criminal case, a verdict must be unanimous (all must agree). If just one juror disagrees, the court may declare a mistrial. This is also called a hung jury or deadlocked jury.

In this instance, the defendant can be retried on any of the counts on which the jury could not agree. This does not violate the double jeopardy clause of the Fifth Amendment as it nullifies the trial.

If there is a judgment of conviction, the court must state the jury verdict or the court’s findings, the adjudication, and the sentence. If the defendant is found not guilty or is

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otherwise entitled to be discharged, the court must so order. The judge must sign the judgment, and the clerk must enter it.

Sentencing Statutes provide that a defendant convicted of criminal charges should be sentenced without unnecessary delay. Prior to sentencing in felony cases, the defendant is entitled to a Presentence Investigation (PSI) conducted by the probation office. In federal cases, under Rule 32 of the Federal Rules of Criminal Procedure, the probation office is required to interview the defendant, and prepare a report. The PSI report will contain information about the appropriate sentence range, the defendant’s social and criminal history and the impact on the victim.

The Federal Sentencing Guidelines, produced by the Federal Sentencing Commission, provide the sentence ranges based on the defendant’s prior criminal history and the level of the offense.

There is a table that shows the available federal sentence ranges. Judges consult this Guide when sentencing federal offenders. When the guidelines are amended, a subsequent Guidelines Manual is published.

When a defendant is convicted of two or more crimes, a judge sentences the defendant to a certain period of time for each crime. If the judge orders concurrent sentences, they may all be served at the same time, with the longest period controlling. When the sentences are ordered to run one after the other, they are consecutive sentences. Often plea bargains involving more than one charge or count include whether the agreed sentence is intended to be served concurrently or consecutively. For example, if a defendant is convicted of burglary and theft, and the defendant is sentenced to three years for each, if the judge orders concurrent sentences then the defendant serves 3 years total as they will serve the sentence for both crimes at the same time; if the judge orders consecutive sentences then the defendant will serve 6 years, the sentence for one crime will begin at the expiration of the other.

Appellate Procedures The appeal of a criminal case is governed by Rule 4(b) of the Federal Rules of Appellate Procedure. All cases on the federal level are appealed to their respective United States Circuit Court of Appeals.

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Once a defendant has either plead guilty or nolo contendere to the court, been found guilty by a jury of their peers or found guilty by a judge at a bench trial, they have the constitutional right to appeal their case to the next level. However, in most cases, if a defendant has pled guilty to the court, they can only appeal the sentence imposed against them. The appeal can only occur if a conditional plea agreement has been entered.

Otherwise, a plea agreement is not appealable due to the defendant waiving their right to appeal as part of the agreement. If a defendant is found guilty by a jury or by the judge at a bench trial, they have the right to appeal the entire case, both the conviction and sentencing.

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Rules 10, 11 and 12 of the Federal Rules of Appellate Procedure outline the steps which need to be taken. These include obtaining the transcript of the proceedings from the court reporter, forwarding the records to the appellate court and the actual filing/docketing of the appeal at the appellate court.

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When the appellate court has received all documents from the trial court, it will issue a briefing/scheduling order. This document notifies counsel for the parties the dates in which their respective appellate briefs are due. Paralegals are often responsible for calendaring these dates.

Failure to do so can and will result in serious repercussions for your attorney.

Criminal law and procedure are always changing. New laws are enacted every day and existing laws are regularly amended. This dynamic area of practice requires a paralegal have sharp legal research, writing skills and education.

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Sample Questions Q:

Of the three burdens of proof, which one is used to weigh the evidence in a criminal hearing?

A. preponderance of the evidence B. reasonable doubt C. clear and convincing evidence D. guilty evidence

A:

(B.) Of the three burdens of proof, reasonable doubt is used to weigh the evidence in a criminal pre-trial hearing and is the only answer that specifically relates to criminal trials. Proof of guilt beyond a reasonable doubt is required for conviction of a criminal defendant.

Q:

In criminal law, the prosecution always has the burden of proving a defendant guilty beyond a reasonable doubt. If raised, the defendant has the burden of proving which of the following?

A. constitutional right B. hearsay evidence C. affirmative defense D. eyewitness defense

A:

(C.) In criminal law, the prosecution has the burden of proving a defendant guilty beyond a reasonable doubt except when the defendant identifies an affirmative defense. This defense is the only defense that will excuse a defendant of a crime he/she may have committed if the defendant so proves the defense.

Q:

If Jeopardy were to be applied, what would the case involve?

A. contracts B. robbery C. divorce D. diversity

A:

Q:

(B.) Jeopardy applies only to criminal matters and not civil. The other three issues are all civil matters.

What does Prima Facie evidence mean?

A. does not definitively prove a case B. proves a case at first sight C. sheds light on the law D. favors only the plaintiff

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A:

(B.) By definition, prima facie evidence proves a case at first sight.

Q:

Crimes against morality and public order are also called?

A. victimless crimes B. embarrassing crimes C. victim crimes D. Capital crimes

A:

(A.) Victimless crimes are crimes against morality and public order. They are so called because there is no victim, making answer A the correct answer.

Q:

When a previous decision by a court is applied as precedent for similar cases, until that decision is overruled is called?

A. stare decisis B. rule of four C. majority opinion D. precedent setting

A:

(A.) Stare decisis is a previous decision by a court applied as precedent for similar cases until that decision is overruled.

Q:

A bifurcated criminal proceeding is divided into which two phases?

A. guilty and not-guilty B. guilt and punishment C. punishment and fine D. innocent and dismissal

A:

(B.) A bifurcated criminal proceeding is divided into the guilt and punishment phases wherein if a defendant is first found guilty in a criminal jury trial, then in the second part of the trial, the punishment would be decided.

Q:

A grand jury normally consists of how many members?

A. 6-8 B. 12-14 C. 16-23 D. 15-18

A:

(C.) The United States District Court website, available at http://www.uscourts.gov/EducationalResources/ClassroomActivities/SixthAmendment/Journalists AndGrandJuries/Background.aspx (last visited June 1, 2012), provides that 16-23 individuals serve on both regular and special grand juries.

Q:

Which of the following cannot be evidence in a criminal trial proceeding?

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A. expert witness and lay witness observations B. exhibits and testimony C. opening statements and closing arguments D. admissions and alibi statements A:

(C.) Opening statements and closing arguments are not considered evidence in a criminal trial proceeding. Opening and closing statements are only tools used by both the prosecution and defense to tell their side of the story to the jury.

Q:

When a defendant’s mental state is at issue in a criminal case, a “competency” hearing is held to determine which of the following?

A. whether the defendant should be held responsible for a criminal act based on their state of mind at the time of the crime B. whether a defendant is “fit” for trial, i.e., they can appreciate the charges against him or her and can assist the attorney in their defense C. whether the defendant should not be held responsible for a criminal act due to their mental illness D. whether the defendant can raise the insanity defense

A:

(B.) Competency and fitness refer to the defendant’s ability to stand trial, they do not affect guilt or innocence. Mental health and insanity are two different things. One can have a mental illness and still be guilty of a crime. The insanity defense requires proof of the defendant’s mental state at the time of the crime, fitness and competence refer to the defendant’s mental state at the time of the court proceedings. There cannot be a trial, and the insanity defense cannot be raised, until the defendant is found to be fit to stand trial. A competency hearing is held to determine if the defendant is fit for trial.

Q:

What is the legal exception that gives law enforcement officials the right to seize contraband items or evidence of a crime without a warrant when they see such items in public or from a location where there is no reasonable expectation of privacy?

A. consent B. good faith exception C. reasonable suspicion D. plain View doctrine

A:

(D.) The plain view doctrine is an exception to the fourth amendment’s requirement that the government must have a warrant based on probable cause to enter private areas or seize personal items. If an officer is lawfully in a place, or if an object or area is one in which there is no reasonable expectation of privacy, then they may seize items that immediately appear to be contraband or evidence of a crime. The example is where an officer enters a home with a search warrant for some item, and immediately observes a crime or evidence of one in “plain view.”

Consent and Good Faith are different exceptions to the warrant requirement. Reasonable Suspicion may serve as the basis for a stop and frisk but does not rise to the level of probable cause.

Q:

Which of the following describes the ability of a law enforcement officer, without a warrant to ask a few questions of someone when the officer has “reasonable suspicion” that the 231

person has committed, is in the process of committing, or is about to commit a crime?

A. probable cause B. investigatory doctrine C. Terry stop D. implied consent A:

(C.) –The Terry Stop is also known as a “stop and frisk” and is based on the U.S Supreme court case of Terry v. Ohio (1968) first confirmed that a Stop and Frisk, permits a warrantless, temporary seizure and limited search of a person when a police officer has a reasonable suspicion that an individual is armed, engaged, or about to be engaged, in criminal conduct. The officer may briefly stop and detain an individual for a pat-down search of outer clothing. This is still a seizure under the Fourth Amendment but is an exception to the Fourth Amendment warrant requirement.

Q:

What is the court proceeding at which the judge informs the defendant of the charges filed by the government?

A. initial appearance B. criminal summons C. preliminary hearing D. arraignment

A:

(D.) Arraignment is the initial step in a criminal prosecution whereby the defendant is brought before the court to hear the charges and enter a plea. A preliminary hearing is held prior to determine whether formal charges can be filed, a summons commands an appearance in court and the initial appearance is typically the bond hearing directly after arrest.

Q:

The difference in the consequences of a felony versus a misdemeanor is that a felony is a crime punishable by a minimum of what?

A. 1 or more years in a prison B. 3 or more years in a prison C. 5 or more years in a prison D. 10 or more years in a prison

A:

(A) for misdemeanor offenses the maximum incarceration is up to one year in jail, for felonies it is at least one year in prison.

Q:

Nosey Nelly is jealous of their neighbor, Gabby Green’s beautiful lawn. They are sure that one cannot grow grass this green naturally, so they investigate and break into the Green’s garden shed in the middle of the night hoping to find some special fertilizer that they can use for their own grass.

When Nelly enters, they find, in “plain view,” numerous items that had been reported stolen from around the neighborhood, including one neighbor’s welcome sign, another neighbor’s Christmas wreath, and stolen lawn chairs. Nelly calls the police and reports the location of 232

the stolen items. Police obtain a warrant to arrest Gabby Green and seize the stolen items.

Green is charged with possession of stolen property. Which of the following is true?

A. there are sufficient grounds for Green to file a Motion to Suppress Evidence because Nelly entered the property illegally B. there are not sufficient grounds for Green to file a Motion to Suppress Evidence just because Nelly entered the property illegally C. there is a violation of the Fourth Amendment even though the police had a warrant D. even though Nelly entered without permission, the evidence was in plain view and so, will be admissible under that exception to the Fourth Amendment A:

(B.) The Fourth Amendment only applies to government (police) violations --Nelly is not a law enforcement officer or government agent, and was not acting on their behalf at the time that they broke in, so there would not be grounds for a motion to suppress and the evidence would be admissible as the police did have a warrant. Nelly could be guilty of the crime of criminal trespass- but that is another matter.

Q:

What is the reasonable belief based on specific facts that a person committed a crime or that something will be found in a specific location?

A. probable cause B. Terry stop C. reasonable suspicion D. warrant

A:

(A.) Probable cause is more than a mere suspicion but less than evidence than would justify a conviction must be shown before an arrest warrant or search warrant may be issued. Officers must establish probable cause to get a warrant, and prior to any arrest, search or seizure. A Terry Stop is a temporary detention that can be based on reasonable suspicion- which does not rise to probable cause.

Q:

Which Amendment protects a person from “unreasonable” searches and seizures?

A. Fourth Amendment B. Fifth Amendment C. Sixth Amendment D. Eighth Amendment

A:

(A.) The Fourth Amendment provides that the government cannot search or seize persons or property without a warrant based on probable cause.

Q:

What is do we call evidence that the prosecution must disclose to the defense upon pre-trial request?

A. investigatory evidence B. Brady materials C. necessary evidence D. Alford disclosure 233

A:

(B.) Also referred to as Brady Disclosure consists of exculpatory or impeaching information and evidence that is material to the guilt or innocence or to the punishment/sentence of a defendant.

Under the United States Supreme Court case of Brady v. Maryland (1963), based on Due Process, the prosecution must disclose such material to the defendant if requested to do so.

Q:

What is evidence that tends to undermine the credibility of the opponent’s witnesses?

A:

Q:

A. impeachment evidence B. necessary evidence C. material evidence D. exculpatory evidence (A.) Exculpatory evidence tends to show the defendant’s innocence, material evidence refers to relevance to the outcome of the case, while evidence that impeaches goes to disprove or discredit testimony.

What is an order issued by the authority of a court that commands an individual to produce documents at a judicial event such as a trial or grand jury proceeding?

A. Notice of Motion B. Subpoena Duces Tecum C. Motion to Appear D. Notice to Appear

A:

(B.) A subpoena duces tecum is a type of subpoena that requires the witness to produce a document or documents pertinent to a proceeding. From the Latin duces tecum, meaning ”you shall bring with you.”

Q:

What is a defense that involves proof that the defendant could not have been at the scene of the crime?

A. Absentee Defense B. Lack of a Burden of Proof C. Alibi Defense D. Witness Defense

A:

(C). Alibi is an affirmative defense by which the defendant must present evidence that they could not have been at the scene of the crime and were elsewhere at the time of its commission.

Q:

Intoxicated Izzy is on trial for a charge of Driving Under the Influence of Alcohol. During Voir Dire, a potential juror indicates that they hold a religious belief that consumption of alcohol in any amount is a sin and those who indulge in drinking any alcohol are guilty sinners going to hell. The defense attorney moves to excuse this juror. Should the defense attorney be concerned about using up one of their challenges to eliminate this juror?

A. No. This would be a preemptory challenge, based on the indication that this juror would be predisposed to against the defendant for having had even one drop of alcohol, which is not illegal B. Yes. This would be a challenge for cause based on the indication that this juror may not like the defendant and these challenges are limited 234

C. No. This would be a challenge for cause, based on the indication that this juror would be predisposed to against the defendant for having had even one drop of alcohol, which is not illegal D. Yes. This would be a Batson challenge and there are only a limited number of these available in jury selection A:

(C). There are an unlimited number of challenges for cause. These are based on an obvious bias or inability to serve as a juror. Preemptory challenges are limited, only a certain number are available depending on the type of case. Preemptory challenges can be based on any reason the attorney wishes (except for racial discrimination per Baston v. Kentucky).

Q:

What is the legal doctrine by which the court prohibits the use of certain evidence at trial upon a finding that it was obtained in violation of the defendant’s constitutional rights?

A. Exclusionary Rule B. Illegal Search Prohibition C. Fruit of the Poisonous Tree Doctrine D. Motion to Suppress

A:

(A) The defense files a Motion to Suppress to ask the court to conduct a hearing to determine whether evidence was obtained in violation of the defendant’s constitutional rights. If the Motion is granted, the Exclusionary Rule is the legal doctrine that says that this evidence cannot be used against the defendant at trial.

Q:

What is a formal request to the court to prohibit mention of specified information because it is not sufficiently relevant to the issues being tried and would have a prejudicial effect on the jury?

A. Motion to Dismiss B. Motion to Reject C. Motion in Limine D. Motion to Suppress

A:

(C) The Motion in Limine asks to exclude evidence that is more prejudicial than probative. It is not based on constitutional rights violations (that’s the Motion to Suppress) and must be litigated prior to the start of the trial.

Q:

Officer Oliver is called as a witness. The prosecutor asks Officer Oliver if they interviewed the witnesses at the scene of the crime. The officer replies that they had. In order to save the court’s time, the prosecutor then asks Officer Oliver to testify about the statements of the various witnesses, to inform the court about what each witness saw. This is objectionable for what reason?

A. it is hearsay B. it would be providing cumulative evidence C. it violates the best evidence rule D. it is not objectionable because the officer’s testimony is relevant and reliable

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A:

(A) This is hearsay—the officer is being asked to about statements of others who are not in court, offering the information to prove the truth of what is in the statements.

Q:

Laying a foundation refers to which of the following?

A. Testimony that an object is authentic B. Voir Dire of prospective jurors C. Preparing jury instructions D. Presenting layers of cumulative evidence

A:

(A). Only authentic (reliable) evidence is admissible. Thus, to admit evidence, there must be testimony that confirms the authenticity of the item, i.e., testimony that the evidence is what we are saying it is. The process of providing that testimony is called laying the foundation. In the case of seized evidence, the foundation includes testimony to establish the chain of custody from the time of the seizure until the object is brought to court.

Q:

Fred Felon was found guilty of two crimes: auto theft and a felony retail theft. The judge sentenced him to 3 years on the auto theft and 2 years on the retail theft. Which of the following is true?

A. If the judge orders the sentences to run concurrently, he is to serve 5 years total B. The judge does not get to decide whether the sentences are concurrent or consecutive, it is up to the prison to determine the actual amount of time he serves based on good time credit.

C. If the judge orders the sentences to run consecutively, he is to serve 3 years total D. If the judge orders the sentences to run concurrently, he is to serve 3 years total

A:

(D). The judge determines the type of sentence and it is written on the sentencing order that is sent to the prison. A concurrent sentence means that he will serve the time for both crimes simultaneously, so a total of 3 years; A consecutive sentence means he starts the sentence for one crime and when that is over he starts the sentence for the second crime, so he would serve 5 years of judge orders consecutive sentences in this case. Good time credit is set by statute, not the prison. However, the prison can take away good time for misbehavior.

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Domain 02: Substantive Areas of Law PROBATE; ESTATES, WILLS AND TRUSTS Introduction The law of estates is governed primarily by state law; each state has statutes governing who will inherit a person’s property upon their death. The Uniform Probate Code and the Uniform Trust Code were created as models. While these documents may have been adopted by many states, they are usually adapted to interface with the individual states’ laws with regard to property ownership and other statutes that may impact the distribution of property upon the death of its citizens. This chapter will provide a broad overview of estate law (wills, trusts, probate, and administration of estates) as a guide for studying for the PCCE®. It is not meant to in any way be state-specific.

Estate Planning Estate planning in the legal environment is defined as helping clients plan and prepare for the distribution of property upon death. Law firms providing services in this practice area are typically involved in helping clients create wills, trusts and other related documents to plan for how the client’s property should be distributed upon his/her death. Upon a person’s death, the firm will then be involved in the administration of the estate by assisting with the probate procedure in the state court and/or assisting with the transfer of assets and administration for those assets which may pass outside the probate process. The experienced paralegal may also assist with the filing of tax documents, both federal and state, as the tax laws mandate with respect to the individual estate. There may also be ancillary procedures as dictated by the client’s property ownership.

Estate planning can often include financial planning through the assistance of a Certified Public Accountant, a Certified Financial Planner, and/or a tax attorney depending upon the client’s needs. The paralegal could be working with any number of other experts as well as services such as financial institutions, insurance companies, real estate agents and brokers and appraisers.

One of the first tasks of an estate paralegal is to assist the client and attorney in collecting information about the client’s assets, the family situation (e.g., do they have children, grandchildren, etc.), what are the client’s long-term financial goals, and to whom do they wish to leave assets upon death. The paralegal may be involved in assisting the client with filling out the firm’s intake information, as well as helping to obtain copies of assets such as deeds to property, life insurance policies and/or copies of current wills, codicils and estate planning documents.

The paralegal will then work with the attorney to classify assets into two broad categories: probate and non-probate assets. The types of property may be further classified into real property and personal property. This process will help the attorney to determine the best estate planning devices to fulfill the client’s wishes upon their death and/or of the survivor. It may also be necessary to determine the value of the property, in which case the paralegal could help the attorney by using various methods discussed in greater detail below. Once the attorney has provided the client with a recommended estate plan that he/she feels best fits the needs of the client, and the client agrees, the paralegal can assist the attorney with creating and drafting the various documents required to achieve those goals.

Those documents may include any or all of the following: wills, trusts (revocable or irrevocable), powers of attorney, advance directives, health care proxies, and asset transfers, if applicable. This is not meant to be an exhaustive list, as the types of documents to be prepared will be dictated not only by the estate

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planning needs of the client, but by state statutes, as well as requirements created by various companies and/or regulation, especially with respect to property transferred outside of probate.

Types of Property As indicated above, the client’s property should be divided as follows: non-probate property and probate property. Property should also be categorized as real or personal. Property can then be further determined to be tangible or intangible. All of these are defined as follows: Real Property Land and anything permanently affixed to the land (including, but not limited to, home, garage, barn, office and any other types of buildings). Typically, the real property includes any rights of way, easements, etc. which should be indicated on the Deed that has been recorded in the county where the property is located.

Personal Property All “non-real” property, which includes automobiles, recreational vehicles, jewelry, art, books, stocks, furniture, funds held in financial institutions and cash.

All property is acquired by one of the following means: purchase, gift, chance or earnings from employment. Proof of ownership and any ownership rights must be determined before the ownership of said property can be transferred to another, either during life or after death. The paralegal can assist with obtaining ownership information, property descriptions and valuation of the assets.

Property, particularly real property, can be owned in several different ways. The manner of holding the ownership is referred to as title. For real property, the person or persons owning the property will have a recorded deed which not only gives the legal description of the property but also indicates how the ownership is held. (See Domain 02: Substantive Area of Law - Real Estate for more information on ownership of real property.) For the purposes of this chapter, the ownership is important because it will tell the attorney whether the client owns the property, or if married, if the clients own the property together, typically in joint tenancy. In some states, the property may be held as Tenants by the Entirety. In either of these cases, the surviving joint tenant may receive the property outright without the need to go through probate. Property, both real and some personal property such as automobiles, can be held as Tenants in Common, which does not have a right of survivorship. Likewise, motor vehicles and other personal property to which “title” is attached may also be held in joint tenancy; again, there is a right to survivorship to the surviving party should one of them die.

A deed will also show how the property was acquired; whether the property was purchased, or was it a gift or inheritance, or was it acquired by some other means. Several states are considered “community property” states and a married couple may choose to take title of the property as community property rather than joint tenancy. There is one last type of tenancy that may need to be considered in estate planning - Tenancy in Partnership. This special category is for businesses that operate either as a general or limited partnership and where titled property may be owned. The property held in this manner automatically passes to the surviving partners. However, the heirs of the deceased partner would receive the value of the decedent’s interest in the property.

Property that is not real property is typically considered personal property. Personal property can be either tangible or intangible. Tangible property is that which can be touched or seen and has an intrinsic value.

Jewelry, furniture, motor vehicles, money held in financial institutions, art, antiques, etc. are all

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considered tangible property. Intangible property is property that represents something of value but may have little intrinsic value itself. Intellectual property, such as trademarks, copyrights and patents may fall into either of these categories depending upon the current value of the property and how it is being used, if at all, in the marketplace. Intangible property is also that to which there is sentimental value attached.

Claims and benefits are also classified as intangible property because they may not have a value and/or their value is something that will be acquired at a later date. Stocks, bonds, annuities, retirement and insurance may also be considered intangible; while they have value, it cannot be seen or touched. For example, a person could own stocks in a Fortune 500 company, but they would be considered intangible because the stock certificate itself, or the brokerage account in which the stocks are held, are only a “paper” symbol of the money and not the real thing.

For the purposes of estate planning, determining the ownership of each of these assets and the description and value of each are extremely important for the attorney to be able to provide the best advice to the individual client about the documents that will best fit their needs. The paralegal can play a key role in helping to gather this information.

Guardianship A guardian may be appointed for an incapacitated person, such as someone in a coma or someone with Alzheimer’s. A guardian for the estate and/or person may also be appointed within a testator’s will. A parent may appoint a guardian for a minor child should the parent or person having custody predecease the child; if the parent or guardian of a minor child dies intestate, the court will be required to appoint a guardian of the person and/or estate. [Or, if a child is the beneficiary of an estate and a will or trust does not provide for an adult trustee to handle those estate assets for the child, either through a trust or in testamentary provisions within a will, the court will need to appoint a guardian ad litem for that estate property.] One additional note: in most cases, unless otherwise stipulated by the court, the guardianship lasts until the child is no longer a minor.

Incapacity and the ultimate guardianship of an adult is quite another matter. Clients often, as part of their estate planning, include provisions and/or create specific documents that deal with his/her eventual incapacity and the need for a guardian to be appointed. For example, a trust may contain provisions for the trustor/trustee to resign and appoint a successor while he/ she is alive. If the initial trustee should, at some point, feel that he/she is no longer capable of handling his/her financial affairs, a successor already named in the trust may have those matters turned over, or it may be necessary to petition the court to take control of the estate on the person’s behalf.

Incapacity A client may also choose to create and execute a Durable Power of Attorney to provide that he/she appoints an agent to act upon his/her behalf should the principal become incapacitated. Typically, there is some event specified within the power of attorney, such as when “two treating physicians” declare that the principal is no longer capable of handling his/her financial and/or personal matters. Alternatively, the principal can also give someone else the power over his/her affairs at such time as he/she chooses to do so. The attorney will need to ask the client a number of very specific questions about the powers that the agent will or will not have and when the client wants those powers to become effective. This is a very powerful document and can be misused by an individual or agency that does not have the principal’s best interests in mind. The agent could have the ability to transfer and liquidate the principal’s property, make sure that he/she was receiving proper health care/medical treatment, had proper shelter, clothing and other necessities of life. The document should be drafted with care to make sure that only the powers that the principal wants the agent to have are granted.

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At what point does incapacity occur and what happens to a person who becomes incapacitated? This issue has been and remains a subject of personal debate as well as case law. Let’s recall the Schaivo case that dealt with a young woman who was in a coma and on life support. The court had appointed her husband as guardian when she became incapacitated. Her parents did not want her to be removed from life support, while her husband, who was her guardian and who stated she would not want to live in this manner, wanted the life support removed. Mrs. Schaivo did not have a “living will,” advance directive or any other documents that indicated her wishes. This case was played out in the court as well as the court of public opinion. The Schaivo case is mentioned in this chapter to highlight the importance of having these documents prepared, specifying the person’s wishes with respect to incapacity and guardianship, and then appointing the person(s) that he/she believes knows and will carry out those wishes since many doctors, health care professionals, attorneys and the courts - not to mention individuals - have very different definitions of incapacity.

For the purposes of this chapter, the topic of incapacity is relevant with respect to understanding that planning for one’s incapacity is very important. At a time when people are living longer, the reality of incapacity occurring has grown significantly. A person’s mental or physical capacity may dwindle until such time as a guardian may need to be appointed.

Guardianship can be of the individual person and/or the estate. For example, a person may be able to continue to understand that bills need to be paid, medication must be taken, and food purchased, but that individual can no longer physically write checks or even walk to the mailbox, let alone make a trip to the pharmacy or supermarket. Conversely, an individual may be able to drive, walk around the supermarket, or go to church, but they cannot remember how to get there, when he/she last ate or took necessary medication. These situations can occur at any age; they are not representative of only the elderly. Many parents of children who were born with disabilities will pursue a guardianship to be able to continue to care for the adult child because the child is unable to care for him/herself. In these situations, a determination of capacity must be made. If the individual is ruled incapacitated, a guardianship would need to be established through the court. Individual states will have specific laws and local rules regarding how the guardianship should be filed, how incapacity is determined, who may or may not be able to serve as a guardian and other numerous, specific qualifications.

The court will make specific orders with respect to the guardian’s responsibilities; giving them very specific powers as well as obligations to the individual. The guardian is then responsible for the incapacitated individual, in most cases until the individual returns to capacity, which is rare although it can occur; or, more commonly, until death. The court will also determine the reporting requirements for said guardianship. For example, if the guardianship is for the estate, the court may require periodic accountings, continued verification by a doctor that the person remains incapacitated and any number of other requirements it may deem necessary for the proper care and treatment of the person.

Intestate Succession This section will provide some background and statutory information as to how to proceed with an estate where the decedent did not have a will, it cannot be located or where a will has been ruled invalid by the court. As indicated above, many of the actual procedures, such as filing the petition, notifying the heirs and creditors, preparing the inventory and appraisal and final accounting are similar. However, the law with respect to how property is distributed to heirs is quite different. The paralegal should be familiar with the specific laws in his/her state with regard to intestate succession if they are going to work in this area of law.

The state’s intestacy laws will determine how the decedent’s estate will be distributed to his/her heirs; the proportion that is taken. Since at least fifty percent of people die in the United States without a will, the

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statutes regarding intestacy must be closely followed in each jurisdiction. The laws of intestacy provide that the decedent’s closest relatives (kinship) will receive his/her property. The kinship is determined by consanguinity - blood relationship. Thus, with the exception of a surviving spouse, the estate will pass to surviving blood relatives when the person dies.

Relatives are either related lineally or collaterally. Lineal relations are those who are directly related to the decedent; they are either ascendants or descendants. Ascendants are ancestors, the relatives who came before the decedent such as parents and grandparents. Descendants are those relatives who come after or follow the decedent - the issue - children, grandchildren, and great-grandchildren. Collateral relatives are those that, although related by blood, are not either directly ascending or descending - siblings, uncles and aunts and cousins.

Relations by affinity are those who are not related by blood, but my marriage. For example, your uncle’s wife may be referred to as “aunt” although she is not a blood relative. Likewise, stepbrothers and stepsisters are related by affinity. Generally, those related by affinity are not entitled to a decedent’s estate under the laws of intestacy. The only exceptions to this rule are one’s spouse and children (including stepchildren) who have been adopted by the decedent. An adopted child is, by decree, to be treated as a birth child for the purposes of inheritance. Some states are changing - or considering changing - some of these laws with the frequent occurrence of “blended families” in today’s society.

Drawing a family tree representing the decedent’s family (kin) will help in determining how the laws of intestacy will be applied in each particular situation. The degree of kinship of lineal relatives is calculated by counting each step above the decedent and each step below the decedent. The degree of kinship of collateral relatives is calculated by finding the nearest common ancestor and then counting downward.

For additional information on how the state statutes apply this concept and determines descendants - both linear and collateral - one should consult the Table of Consanguinity. By comparing the family tree with the Table of Consanguinity and applying the above methods, the paralegal is able to determine the degree of kinship and who is entitled to receive property based on the individual state’s statutes. Note that some states provide for a surviving spouse to receive a specific percentage or dollar amount of the decedent’s estate, with the remainder being distributed to the heirs. In other states - those that are considered community property states - the surviving spouse will typically receive one-half or the community share of the estate, with the remainder being distributed among the heirs, or the heirs and the surviving spouse.

Pretermitted heirs fall into two categories: a pretermitted child or a pretermitted spouse. A child who was born after the testator executed a will is treated is called a pretermitted child. The child/ren have not been provided for in the will. According to most laws of intestacy, a pretermitted minor child will receive an intestate share of the parent’s estate upon their death. If the child is an adult, the child may or may not be entitled to an intestate share. A pretermitted spouse is one whose spouse - the decedent - died without revoking or changing a will that was executed prior to marriage. In that event, the laws of intestacy provide that the surviving spouse is entitled to some portion of the decedent’s estate.

A decedent who dies intestate and without a surviving spouse and any discernable kin will have their estate distributed to the state in which he/she is domiciled; this is called an escheat. Real property will escheat to the state in which the property is located; personal property will escheat to the state in which the decedent is domiciled.

Will Contests Will contests may occur after the death of the testator wherein the validity of the will and/or its provisions are challenged. A person must have standing - a claim or interest - to challenge the

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decedent’s will. Typical challenges are made by a beneficiary and include, but are not limited to, the following objections: •

Improper execution of the will;

•

Testator’s lack of testamentary capacity;

•

Will was revoked;

•

Forgery of the will;

•

Improper notice or notice not given to heirs;

•

Testator signed the will under duress, fraud, or undue influence; and

•

Will contains material mistakes.

If the testator has altered the will, for example, by crossing out will provisions and/or adding new ones, the court will typically invalidate the will. There are circumstances where the will could still be considered valid if altered, but only if the same formality as the original execution of the will was followed. The courts historically find that it is difficult to prove the intent of the testator and/or prove that the testator made the notations in his/her own hand. While this may certainly save the testator money (attorney’s fees) at the time he/she makes the notations, the court may, in the best case, revoke the specific provisions that were marked, and in the worst case, the estate will likely be probated under the laws of intestate succession.

Living Wills, Health Care Proxies, Durable Powers of Attorney As previously indicated in various sections of this chapter, and in particular within the Trust section, the firm will likely be involved in preparing any number of collateral and additional estate planning documents for clients. Most commonly, when preparing a trust, the attorney will recommend to the client that he/she also have Durable Powers of Attorney for property and/or health care, which may include provisions that appoint an agent so that a guardianship would not be necessary. At the time that he/she is either incapacitated or wishes to have an agent assist with assets and other needs, these documents will already be in place. (See above for additional information regarding Durable Powers of Attorney.) The Durable Power of Attorney for Health Care is also often referred to as a Health Care Proxy.

The attorney may recommend that the client execute separate Durable Powers of Attorney - one for property and one for health care. The client can also execute a Durable Power of Attorney that includes some health care powers if they choose. The advantage to having separate documents is two-fold: the principal may choose to name different agents for different capacities and/or at the time the agent’s powers become active and he/she must provide copies of the legal documents to the entity, that entity does not need a copy of powers that are not related. For example, if the health care proxy needs to be provided to a hospital, the hospital does not need to have any information about the individual’s estate or who is appointed to manage it. The hospital only needs to be concerned with the health and medical needs of the individual.

A person may also execute an Advance Directive, a/k/a Living Will. This document gives the power to make health care decisions to an agent. This document is different from the health care proxy in that it typically only relates to the immediate medical needs and treatment of the patient in the event that he/she cannot speak for him/herself. The Health Care Proxy will include more complex provisions and powers

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extended to the agent, such as being able to obtain copies of medical records, paying for treatment and access to other confidential records. Most hospitals will ask upon admission for treatment if the patient has an advance directive. The advance directive may include “living will” provisions that indicate the individual’s wishes with respect to life support, organ donation and extraordinary treatment. This document may also include a “Do-Not-Resuscitate” (DNR) clause. The living will can also be a standalone document. The exact type of document(s) prepared will be based on the client’s needs and wishes as well as the attorney’s advice and recommendations.

As noted under the Incapacity and Guardianship section of this chapter, it is very important for a client to execute these documents regardless of their age. Many clients will state they are too young to worry about having an Advance Directive, Health Care Proxy, or Living Will. Most attorneys feel otherwise, especially those who have seen clients face situations such as the Schaivo case, wherein family members are unable to make informed decisions, may have differing opinions as to how to proceed and find it difficult to have their loved one’s wishes fulfilled because they are not legally documented.

Probate Probate is the process by which a deceased person’s property is transferred to other individual(s). The first question that any attorney - and paralegal - must ask a new client is whether the decedent had a will.

If the decedent did not have a will or none has been located, the decedent is considered intestate. A decedent who has died with having executed a will is testate. We will begin by covering the process and procedures with respect to a decedent who has died testate - with a valid will. Where the terminology and/or process differ for a decedent that died intestate - without a will - those differences will be noted.

Once the attorney has reviewed the will, he/she will work with the client to determine all of the property that is owned by the decedent and will then make a determination of what property, if any, passes outside of probate. (See non-probate administration, below.) The attorney will also need to know the names of all potential beneficiaries, their addresses and telephone numbers.

It may be necessary, if the client believes there is a will - or has a copy but not the original - to locate the original will, to be lodged with the court. If it is believed that the original will is kept with the attorney who authored it or in a bank safe deposit box or similar location, steps will need to be taken to obtain the original will, which may include submitting a request for an order from the court to, for example, drill the box if the key cannot be located. If the original will cannot be located, the probate may proceed as an intestate procedure. Some jurisdictions do allow a copy of the will to be used for probate if the original cannot be located and it does not appear that another will was executed which supersedes the copy that was located.

Also to be determined is the relationship of the client to the decedent and, particularly, whether the client has been named as executor of the will. First, let’s clarify some terminology with respect to the types of “personal representatives.” The personal representative of the testator’s estate may also be called the executor or executrix. The title given a person appointed by the court to take care of an intestate estate is “administrator” or “administratrix.” A testator may also name a successor in the event the first named executor is unable to serve in that capacity. In that event, the first named executor must state, in writing, that they are declining to act as executor and appoint the successor to serve. If there is no successor named in the will and the first-named is unable to serve, then another person may petition to court to be appointed as “the administrator with will annexed.”

Once an original will has been obtained, the attorney and the paralegal will begin preparing the documents that need to be filed with the court to commence the probate action. As previously indicated, the estate assets information will need to be collected in order to determine which assets are subject to

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probate and which may be administered outside of probate. At this point, the attorney may determine that a formal probate is not required and that the form of informal or summary administration may be the best avenue for the decedent’s estate. The attorney will also need to determine the method of “proving the will.” As discussed under the witness requirements for a valid will (below), some wills may be “selfproving.” If the will is not self-proving, then the paralegal will need to assist the attorney in locating the witnesses to testify to the validity of the will in court. If the will is self-proving, unless the will is contested, there is no need for the witness to testify.

Probate Administration The initial document that should be filed with the court is a Petition for Probate. This document will provide the basic information regarding the decedent, his/her will, property, date and location of death, children - if any - and or other beneficiaries or heirs. The firm will also prepare Letters Testamentary, which will give the executor the formal authority to represent the decedent’s estate. In the case of an intestate, the administrator will be issued Letters of Administration. The personal representative will take an oath to fulfill his/her fiduciary duties and responsibilities in administering the estate. The paralegal will want to make sure of the state rules with regard to whether the representative’s oath must be notarized or if there are any specific documents or notices that must be filed with the court acknowledging these duties and responsibilities, which are too numerous to mention in this context.

The paralegal will also need to make sure that several death certificates have been provided to the firm. Multiple copies should be obtained whenever possible as there will be a number of agencies and services, such as the department of motor vehicles, financial institutions, social security administration, etc., who will require copies. Having copies on hand will reduce delay in having to obtain additional copies from a state agency or other entity at a later date.

The courts also require, unless otherwise explicitly waived by the decedent’s will, that a surety bond be posted by the personal representative. The bond, which is a type of insurance policy stating that the personal representative will fulfill his/her fiduciary responsibility, is secured by a sum of money determined by the clerk, usually based on the value of the decedent’s estate.

Notice must be given to interested parties once the petition has been filed. An interested party is anyone who might be affected by the outcome of the probate. This could include beneficiaries as well as creditors. Interested persons, such as creditors, can request copies of all pleadings; beneficiaries must receive notice of all hearings, pleadings and other proceedings before the court.

The paralegal will want to assist with obtaining a Tax Identification Number (TIN) for the estate. This number can be obtained by using form SS-4, which the personal representative must sign.

Information on how to complete the form and where to mail or fax it can be found on the IRS website, available at http://www.irs.gov (last visited June 1, 2012).

The next step is to prepare the estate inventory, which will need to be filed with the court clerk. The inventory is a detailed description of the decedent’s property - real and personal - along with the value of the property. Descriptions should include account numbers, serial numbers, vehicle identification numbers and legal descriptions of all real property.

In the event that the decedent owned real property, at the time of death, in a state other than where he/she was domiciled, it will be necessary to file an ancillary administration in that state. This action is necessary as the state of domicile cannot distribute or make orders regarding real property located in another state. The state statutes should be consulted regarding how to proceed with the ancillary 244

administration. The paralegal should make sure that the attorney has received copies of the current deed so that he/she will have the legal description and know in which county to file the action. In some states, it may be necessary to retain an attorney in the ancillary state to carry the matter through the court system and/or to prepare new title documents once the court has approved the matter.

At the same time, the personal representative should be collecting information on the decedent’s debts, taxes, medical and funeral expenses, and costs and expenses related to the administration of the estate. The personal representative should also consult with an accountant to determine whether any estate or inheritance taxes, as applicable, are due. Consulting with an accountant early in the process will insure that any critical filing dates for the estate, including the decedent’s final personal tax return, are not missed.

In most states, there is a requirement that all property, real and personal, be valued by a professional appraiser. This will vary by state, so local statutes should be consulted as to the process and requirements. For the purposes of this chapter, the paralegal should be aware of the requirement for independent appraisals of estate property so that it will be completed in a timely manner. While the court may accept an initial inventory with estimated values from the personal representative, most states require that a formal inventory prepared by a third party be prepared and filed with the court before the final accounting can be prepared, the distributions made and the estate closed.

A final accounting is filed by the personal representative when he/she is ready to distribute the estate assets to the beneficiaries or heirs. Depending upon the length of time of the probate, the court may also require that interim accountings be filed. The final accounting provides a detailed report of all transactions made during the administration of the estate by the personal representative. Such transactions include, but are not limited to, court fees and costs, taxes paid, appraisal and accountant fees, payment of debts and creditor’s claims, sale of property and any interim distributions to beneficiaries. The accounting should also include the anticipated amount of attorney’s fees to be paid as well as any executor fees that the personal representative is entitled to and whether he/she is waiving those fees.

The final accounting must be sent to all heirs and anyone requesting notice. A hearing is scheduled and the court will approve the final accounting. The beneficiaries and heirs may choose to waive the final account, in which case the final hearing will not be necessary. The paralegal, at this point, should assist the personal representative in making sure that all remaining estate funds have been distributed to the beneficiaries or heirs. A petition for discharge of duties should be filed with the court in order to close the file, both with the court and with the firm.

Non-Probate Administration Non-probate administration is conducted on those assets that may be transferred outside the probate process. Such assets may include, but are not limited to, the following: insurance policies, retirement accounts, annuities, and other assets that, by contract, have a beneficiary designation.

Property that is held by a third party and which is contractual by nature, such as life insurance, retirement, or pay-on-death (POD) accounts, may be transferred outside of probate and is not taxable, in most cases, against the estate. Thus, if John has a life insurance policy and retirement account wherein he has named his wife as beneficiary and a deferred compensation plan wherein he has named his two children as beneficiaries to receive equal shares, upon John’s death, each of those designated beneficiaries will simply need to provide the document(s) required by the contract in order to receive their part of John’s estate. These assets do not have to be included in the inventory of any of John’s estate that is subject to probate, whether or not he has a will.

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A life estate is an interest in property that a person has only for his/her life and all right and title terminate on the death of the life specified. A conveyance (deed) that creates title in a life estate, a life tenant, can be executed for this purpose. A life estate can also be created in a will. The property would be treated as though the “tenant” actually owned the property, except that he/she cannot transfer, sell or convey the property. The property, by operation of law, will transfer to the person(s) specified upon the death of the tenant; this person is called the remainderman. The tenant may receive income from the property and is responsible for the payment of taxes, insurance and upkeep. This type of non-probate transfer not only avoids probate, because when the tenant dies, he/she did not actually own the property so it transfers directly to the remainderman, but it also may avoid estate taxes that would normally be due from an estate where the transfer was made to the tenant.

There are other types of probate avoidance tools for specific assets. However, the paralegal should study his/her individual state statutes when working with the attorney to determine other methods of transferring property to heirs or beneficiaries. As indicated above, holding property in Joint Tenancy, Tenancy in the Entirety or Community Property is a method of avoiding probate for real and other titled property. Some states may have a mechanism, such as an Affidavit procedure, wherein property excluding real estate, and with a value under a certain statutory limit (e.g., $20,000), may be transferred outside of probate. In that instance, if the decedent only owned personal property (furnishings, clothing, and costume jewelry), an old motor vehicle and a bank account valued at $5,000, it may be possible to transfer that property to the heirs without the need for a probate whether the person died testate or intestate. This would be a circumstance where the attorney would have to review all of the decedent’s estate information with regard to assets, the value of those assets, the heirs/beneficiaries and any other relevant information to determine whether a probate is required, a summary procedure can be utilized or if the property can transfer by means of an Affidavit process.

Trusts A trust is a written instrument created as a vehicle for protecting assets and transferring assets outside of the probate process. Trusts have become a very commonplace estate planning vehicle in which a person, called the trustor, transfers property to a trustee. The trustee then holds the property in the trust for the benefit of the beneficiaries, who are referred to as third parties. The trust is considered a contract between the trustor and trustee wherein the trustee will manage the trust property (assets) and then distribute the property pursuant to the terms of the agreement.

There are primarily two types of trusts: testamentary trusts and stand-alone trusts. Testamentary trusts are trusts created within a will as mentioned above. Stand-alone trusts fall into two categories: revocable trusts and irrevocable trusts. A revocable trust, also called an inter vivos or living trust, is a trust that can be amended or revoked. An irrevocable trust cannot be altered or amended once it takes effect. Note that a revocable trust becomes irrevocable upon the trustor’s death or upon the death of the last trustor, at which time the trust may no longer be amended or revoked. The most common type of irrevocable trust is a Life Insurance Trust.

The inter vivos trust, the most popular type of trust for many people, must consist of five specific elements in order to be valid: trustor, trustee, trust property, beneficiary/ies and purpose. If any one of these elements is missing, the trust will fail, which causes the property either to revert back to the trustor or potentially to the beneficiaries. A testamentary trust that fails will cause the property to be distributed as set forth in the residuary clause of the will. The trust may be created to allow management of the trust property to someone other than the trustor; to protect assets, reduce taxes and/or avoid probate; and/or to protect the property from creditors or control the manner in which a beneficiary receives the estate.

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An inter vivos trust takes effect during the trustor’s lifetime and generally takes effect upon execution of the trust. This may also be called a “declaration of trust.” The inter vivos trust is a private agreement between the trustor and trustee; upon execution, the trustee may manage the trust property immediately.

This means that upon the death of the trustor, the trustee or the successor trustee may immediately act and does not have to wait for court authority to take control of, manage, and distribute trust property, except by operation of law. The inter vivos trust becomes irrevocable upon the death of the trustor; or, if a joint trust, the trustor that is the last to die. There may be statutes that govern the administration of a trust estate; however, the administration is outside of the probate court unless trust property was not properly included (transferred or conveyed into) in the trust.

The trustor is the person who creates or establishes the trust. The trustor may also be referred to as the settler or grantor. The trustor creates the trust as a method for holding, investing and eventually distributing the trust property to the named beneficiaries. Anyone who has legal capacity - sound mind may create a trust. A trustor can also be a legal entity, such as a corporation, limited liability company, partnership or foundation, provided that entity has the legal ability to create a trust. Since a trust is considered a contract, the trustor must have the capacity to create and execute the trust, much the same as the person executing a will.

The trustee can be either an individual or a legal representative to whom the trustor gives legal title to the property and who is entrusted to legally hold, own and operate the trust property. A legal entity such as a bank or corporation may be appointed to serve as trustee. The trustee must have the ability to enter into contracts and should have the ability to perform his/her fiduciary responsibility on behalf the trust. As a consequence of these duties, care should be taken to be certain that the trustee is of an age capable of entering into contracts. This fiduciary responsibility means that the trustee must act in the best interest of the trustor and the beneficiaries, rather than for his/her personal gain. This is true, even if the trustee is, or will be, a beneficiary of the trust property. The trust document should explicitly state the duties and obligations of the trustee, as well as restrict the use of the property as needed to protect the trust property.

While more stringent standards may be included in the trust agreement as the trustor sees fit, the trustee, as fiduciary, should adhere to the following standards, at minimum: •

Good faith, loyalty, care and management;

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Use of ordinary, reasonable skill and prudence;

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Preserve and protect trust assets; and

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Refrain from self-dealing - the trustee cannot personally benefit from managing the trust.

A trustee cannot delegate his/her management duties to another, although he/she can hire professionals such as lawyers and accountants as needed in order to perform his/her duties.

The trustee, in addition to managing in the trust personally must also: •

Maintain accurate records and accounts;

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Take possession of trust property and make it profitable;

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Pay all trust debts; and

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Collect all debts owed to the trust.

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A well-drafted trust will include instructions related to all of the above fiduciary responsibilities and duties of the trustee, as well as additional requirements as needed by the trustor to protect trust property.

Below are some examples of other trustee duties, found in a trust agreement, and which are typically elaborated upon: •

The trustee must administer the trust in good faith and according to the terms of the agreement and the law;

•

The trustee must exercise a general standard of care;

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The trustee must act solely in the interest of the beneficiaries of the estate and not in his/her own interest;

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The trustee must act impartially toward all beneficiaries unless otherwise stated in the trust agreement;

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The trustee must make reasonable efforts to revolve any conflicts;

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The trustee must keep current beneficiaries informed concerning the administration of the trust; and

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The trustee should continue the type and style of investing that is consistent with that undertaken by the trustor during his/her lifetime.

The trust property may also be referred to by any of the following terms: res, corpus, principal, fund, assets and/or estate. The trust property is that property or assets which can be freely transferred from one owner to another. For example, real estate, vehicles, bank accounts, etc. may be transferred from one person or entity to another. However, retirement or life insurance (those types of property which are contractual and are outside of probate) are not freely transferrable into a trust.

Generally, property that is transferred into a trust is income-producing. However, it does not have to be as in the example of a motor vehicle. The reason trust property, for the most part, should be income producing is that the trust can provide income to the beneficiaries in the future - when the trust terminates - without invading principal during the life of the trust. The trust’s principal is all of the original assets and any added assets. The trust’s income is all interest, dividends and gain that have accrued on the trust principal.

A trust may be created for a lawful purpose, except where it will violate any civil or criminal laws. In most law offices, a trust is created for clients in order to manage the trust property, protect it from creditors, reduce taxes and provide a mechanism for transferring property upon the death of the trustor(s) outside of the probate administration process. The purpose of the trust should be clearly stated in the trust “agreement” in order for it to be valid. For example, commonly, the trust will contain language similar to the following: “I, Mary Martha Smith, have established this trust for my maintenance, comfort and support during my lifetime, and for the benefit of my children after my death….”

A beneficiary is a person who derives benefit from the property. Beneficiaries of a trust are entitled to receive the trust’s income and profits as set forth in the trust agreement. The trust must clearly identify the beneficiaries in the trust. The trust will elaborate as to how the beneficiary is to receive the trust principal and/or income. For example, the trust may state that all adult children (beneficiaries) will receive their share outright upon the trustor’s death. Alternatively, the trust may state that the beneficiaries will receive their share at various stages such as: one-third at age 25; one-third at age 30; and any trust remaining at

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the age of 35. A person who is mentally or physically disabled can be named as a beneficiary and, in fact, this is an excellent means of protecting trust property that should be distributed to someone who may not be capable of managing property.

Trustors may wish to create a trust that meets specific needs and goals. The following is a list of some of the types of trusts a client may wish to create. Some trusts may contain several different types of provisions to accomplish their estate planning goals. There are many more types than those listed; this list contains only a basic overview of some of the more common types of inter vivos trusts.

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Spendthrift;

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Sprinkling and Spray;

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Marital Deduction;

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Marital and Family;

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Qualified Terminable Interest Property (QTIP);

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Life Insurance or Crummey;

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Charitable and Charitable Remainder;

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Special Needs; and

•

Totten.

A spendthrift trust - or spendthrift provisions - protects the trust principal and any unpaid income from creditors and from a beneficiary who may squander the trust. The beneficiary cannot sell or transfer his/her future interest in the trust’s assets.

Sprinkling and spray trusts give the trustee discretion as to how the principal and interest are distributed to the beneficiaries. For example, if the trustor determines a beneficiary needs money for education, the trustee has the ability to “sprinkle” some of the trust assets to that beneficiary. This allows for unseen events and also may be an advantage to the beneficiary who is in a lower tax bracket, thus lowering income tax on trust assets.

The Marital Deduction Trust is one of the most common trusts for a legally married couple. The Internal Revenue Code provides that property left to a surviving spouse either outright or in trust may pass to the surviving spouse tax free. The marital deduction is unlimited and there are no federal estate tax consequences. This is essentially a deferral of the federal estate tax. Upon the surviving spouse’s death, the assets remaining in the estate are subject to federal estate taxes.

A QTIP trust provides for the creation of a trust giving a life interest to all income to the surviving spouse, while the remainder of the trust property is transferred to someone other than the surviving spouse upon the death of the first spouse. This trust is commonly used where spouses have remarried and have children from previous marriages. The spouses may wish to transfer one-half of the estate to the surviving spouse and the other half to their children upon their death, rather than wait until the death of the second spouse.

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A Life Insurance Trust is an example of an irrevocable trust from its inception. The trust is named insurance beneficiary on a life insurance policy, with the trustor as the insured. This type of trust is the exception to the other types of life insurance wherein the policy is not part of the estate upon death. In this case, the life insurance policy is part of the estate upon death. The trust is created by either converting an existing policy into a life insurance trust or obtaining a new policy wherein the trustor is required to make periodic, usually annual, payments to “fund” the trust. This type of trust may also be referred to as a Crummey trust because each time a premium payment is due, the trustee is required to send a notice to the beneficiary(ies) informing him/her that a demand may be made to withdraw a share from the estate. The name comes from the case Crummey v. Commissioner, 397 F.2d 82, 88 (9th Cir. 1968), wherein the court determined that this notice must be provided in order to be in compliance with the Internal Revenue Code (IRC). The Life Insurance Trust is meant to reduce the gross estate of the trustor(s) by making the annual payments into the trust, which is irrevocable and to which there is no access.

Charitable and charitable remainder trusts are created to benefit charitable organizations. They may also be called public trusts. There are specific requirements that must be met in order for the trust to be eligible under the IRC as a charitable trust. The difference between the charitable and charitable remainder trusts are that the charitable remainder trust allows the trustor to retain the income for him/herself, the trustor’s children or other beneficiary. Upon the death of the last named beneficiary, the remaining trust estate is transferred to the designated charity.

A special needs trust is one that is created to help a person with disabilities. It is meant to supplement the income that a person may be receiving through any number of government assistance programs. Since these forms of assistance could be lost by an inheritance, by increasing the disabled person’s assets over the allowed limit, the special needs trusts insures that the person can receive a portion of the estate without jeopardizing governmental assistance.

A Totten trust is also known as a pay-on-death account. These accounts are savings accounts that the trustee, also called the depositor, creates for the benefit of another, who is the beneficiary. The trustee can withdraw any amount at any time during his/her lifetime. Upon the trustee’s death, any money in the account is automatically transferred to the beneficiary. The money in the account is not part of the decedent’s estate and thus not subject to probate or taxes.

The Totten trust should contain provisions specifying how any remaining trust property should be distributed. Additionally, a termination of the trust should be included. Unless otherwise specified, the trust will typically terminate once the entire estate has been distributed by the trustee, subject to the terms of the trust, payment of all taxes and debts of the estate, and so forth. In most cases, this will be when the successor trustee has completed his/her duties as trustee. The “rule against perpetuities” provides that a future interest in a trust must be passed to a beneficiary within a time limited by a life or lives in being plus 21 years.

A Totten trust must be executed by the trustor(s) and, depending upon state law, may require witnesses and/or an acknowledgement by a notary public. As previously indicated, the trust agreement becomes effective upon the date of execution. Typically, an attorney will have the client execute the pour-over will (see below), durable powers of attorney, advance directives, deeds and other property transfers at the same time the trust is executed.

An estate plan that includes a trust will also include a will, which is called a pour-over will. This will is created for a couple of reasons. One is that the trust does not provide for the appointment of a guardian, so if the trustor has minor children, then he/she must have a will. Additionally, the pour-over will provide that the residue of the estate should be transferred and/or administered subject to the terms of the trust.

For example, if the trustor creates a trust and places his/her home into the trust by executing a deed, but 250

down the road refinances the property, the title to the property will need to be removed from the trust.

After the refinance, a new deed should be prepared transferring the ownership of the property once again to the trust. If this does not occur and the trustor dies, then his/her will instructs that this property should be considered part of the trust and thus not subject to the probate process but the trust administration process.

Wills (including validity, testamentary capacity, revocation) A will is a legal document that provides evidence of a person’s wishes when they are no longer living and able to speak for themselves. There is a great deal of formality involved in preparing and executing a will.

Each state may differ with regard to the types of standard clauses that will be required in the will, as well as the strict formalities and requirements for the execution. Should these formalities not be followed, it is possible that the will may not pass the scrutiny of the probate court. Additionally, the attorney will want to make sure that the will is properly prepared and executed to reduce the incidence of challenge of the will by the heirs.

The first question that must be asked in preparing a will for a client is whether the person has testamentary capacity. All state statutes require that, for a will to be valid, the testator must have testamentary capacity. The state statutes will also determine the age of this capacity. In most states, the age is eighteen (18) years old; there are a few states where a person can execute a will at a younger age if he/she is married or in the military.

Another statutory requirement to execute a will is mental capacity. Mental capacity generally means whether the person executing the will understands what property he/she owns and knows the names and relationship of his/her nearest relatives. This does not mean that the testator must leave the known property to his/her nearest relative(s); only that he/she can show mental capacity by providing this information.

An estate is subject to state and federal estate taxes, and in some states, inheritance taxes when a person dies. By executing a will, the testator can determine how and from what source any taxes that are owed would be paid. One example is an apportionment clause, which allocates - and may spread out - the tax burden to the beneficiaries of the will. If the person dies intestate, then the tax burden could be heavy if the state allocates it to one individual (e.g., the decedent’s spouse).

A will allows the testator to determine how their estate should be distributed upon death. The testator may leave all property to their spouse, their children, a friend, charity or to some combination thereof. A testator is not required to leave the property to a spouse, child or any family member should they choose.

The testator must, however, state whether they are married and, if so, the name of the spouse. Likewise, if the testator has children, even if those children are not beneficiaries, each child’s name and date of birth must be included in the will. Most importantly, the testator wants to make sure that the property does not escheat to the state in which he/she resides, because there is no will or because the will is not valid.

There are three primary types of dispositions in a will: bequest, legacy and devise. A bequest and a legacy are gifts of personal property and are synonymous terms; devise is a gift of real property. Many attorneys will simply use the term “give” when drafting a will rather than specify a bequest or legacy with respect to personal property. An example of a specific bequest of personal property would be: “I give my two carat, emerald-cut diamond ring to my niece, Chloe.”

The testator may also choose to gift what is called a demonstrative legacy. This type of legacy (or bequest) is typically an amount of money that requires some action by the executor in order to satisfy the bequest. For example: “I give $5,000 to be paid from my savings account, XYZ bank, account # _### ,

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to my niece Sheila, if she survives me.” Typically, there will be an additional component of this bequest that instructs the executor how to handle this bequest if the legatee predeceases the testator. For example, “I give $5,000 to my niece, Sheila, if she survives me. If she fails to survive me, I give $5,000 to Sheila’s daughter, Debbie.” Or, the testator could state as follows: “this gift shall lapse and become part of the residue of my estate should Sheila predecease me.” This type of bequest is also called a pecuniary bequest.

A devise - gift of real property - could be distributed by the testator as follows: “I give my cabin, which I inherited from my mother, located in Anytown, Any State, to my son William, if he survives me. If he fails to survive me, I give this property to William’s children, Angela and Brett, in equal shares.”

The decedent’s property is typically distributed by two methods unless otherwise stated in the will. For example, if the decedent leaves all of his/her property to a spouse, a child or other individual beneficiary, then the distribution is clearly identified. However, if the testator has multiple children, also referred to as “issue,” he/she may specify whether the estate should be distributed: per stirpes or per capita. These methods are particularly important if the distribution is to a group of people and some of that group has died before the testator. For example, if the testator has three children and each child has two children, and one of the children has died, the share that would have been distributed to the deceased child will be distributed to that child’s children; the testator’s grandchildren.

Per capita distribution is considered by most attorneys and estate planners as being an unequal distribution. The following are two examples of will provisions that provide for an unequal distribution of the testator’s estate: Fred, Sr. is unmarried and has three adult children: Fred, Jr.; Ted; and Ned. Fred, Jr. has three children, but has predeceased Fred, Sr. Although Fred, Jr. is now deceased, Fred, Sr. does not change his will. The will states: “All of my property shall be distributed in equal shares to my descendants per capita who survive me.” This means that Fred’s two children receive the same, “equal” share as their two uncles, Ted and Ned. Thus, each descendant - Ted, Ned, and Fred, Jr.’s three children - receive one-fifth of Fred, Sr.’s estate.

Fred, Sr.’s will states: “All of my property shall be distributed to my children who survive me.”

Under the per capita distribution, Fred, Sr.’s grandchildren will receive nothing. The estate will be divided equally between Ted and Ned. Per stirpes distribution - also called distribution by right of representation - beneficiaries receive shares based on the number of children of the testator. If any issue predeceases the testator, that issue’s share is distributed to his/her heirs by right of representation. From an estate planning perspective, this method provides for the most equal distribution among the decedent’s descendants and is thought to most likely provide for what the testator intends, particularly with regard to any residue of the estate or if any part of the will should be ruled invalid. The following is an example of per stirpes distribution: Fred, Sr.’s will states: “All of my property shall be distributed in equal shares per stirpes, to my descendants who survive me.” Thus, the one-third share that Fred, Jr. (using the scenario above) would have received is distributed to his three children. Fred, Sr.’s surviving children, Ned and Ted, each receive one-third of the estate; Fred, Jr.’s children each receive one-ninth (one-third of Fred, Jr.’s one-third).

The testator will also need to determine how the residue of the estate should be distributed. This is the property that remains after all bequests and devises have been distributed and/or satisfied. If this portion of the estate is not addressed in the will, the property remaining will pass as though the decedent died

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intestate, defeating the purpose of executing the will. A sample residuary clause would be: “I give, devise and bequeath all of the rest, residue and remainder of my property, whether real or personal, to my husband, David, if he survives me. If David does not survive me, I give all the rest, residue and remainder of my estate to my children, Fred, Ted and Ned, in equal shares.”

A testator can also appoint a guardian for any minors that are in his/her care. The person who is appointed to care for and manage the minor, the minor’s (inherited) property, or both the person and property is generally referred to as a Guardian. The testator can appoint a guardian of the person and/or guardian of the property to act on behalf of the minor until the minor reaches the age of majority (will vary by state) or until the child is legally emancipated. The guardian of the person and the guardian of the estate can be the same person or they can be different individuals. For example, if the testator is divorced and has custody of the minor children, the testator (parent) may nominate the other parent as the guardian of the person for the children. However, if the testator feels that the other parent is financially irresponsible, he/she could appoint another person - a friend or relative - to be guardian of the estate. Additionally, if the testator had life insurance - which transfers outside of probate - the insurance company may require that a guardian be appointed to hold any insurance proceeds for the benefit of the children.

The testator may also choose to create a Testamentary Trust, which is a legal agreement transferring legal title of property to a trustee. The trustee would then manage the property for the beneficiary. This is an alternative method to the guardian of the estate where there are minor children. Or, in the event there may be adult children who are incapable of handling a large estate, the testator - in this case the settlor - could specify when and how the child would receive the trust property.

The will appoints a personal representative, or executor, to administer the decedent’s estate and carry out the terms of the will. He/she would collect the decedent’s assets (inventory), pay all debts and expenses of last illness and/or funeral, as well as taxes, and distribute the estate property according to the terms of the will. If the decedent dies intestate, then the court will appoint an administrator/administratrix to take care of the estate according to the laws of intestate succession of the state. By executing a will, the testator is able to name the person that he/she wants to handle their estate, typically someone they know and trust. If the decedent dies intestate, the court will appoint the administrator, who might not know the decedent.

The will may also provide instructions as to funeral arrangements and/or organ donation. A will is, however, not the most effective means of making sure that the testator’s wishes are followed. This is because, a will may not be located until after the decedent’s death and arrangements have already begun.

Typically, an attorney will recommend that a client execute other types of documents that are better suited for these types of instructions and preferences. The will may, certainly, state how the funeral expenses are to be paid; for example, they should be paid out of the proceeds of the estate. Note also that some states, especially those that have adopted the Uniform Probate Code, may have statutes that govern the payment of funeral expenses and/or expenses of last illness.

The testator may also wish to include an in terrorem clause, also called a “no contest” clause. These clauses provide for the forfeiture as a beneficiary under the will if any objection is raised objecting to the probate or challenging the will. Some states do not allow “no contest” clauses while others do. An example of a no contest clause is: “If any beneficiary of my will contests the validity of this will, that beneficiary will not receive any portion of my estate passing under this will and his/her share will lapse and become part of the residue of the estate.” Likewise, a testator may also choose to disinherit an heir.

The testator my feel that a spouse, child or other beneficiary should not be entitled to the estate or does not, for whatever reason, need any portion of the estate. For example, if each spouse had been previously married, had children from the previous marriage and had a premarital agreement, each may agree that they would not provide for the spouse in their will because all property had been maintained separately

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and that property should pass to their respective children. In some cases, a parent will disinherit a child because they have been estranged from that child or perhaps the child is involved in drugs or some other activity where the parent feels that the child will simply squander whatever inheritance he/she received.

Like no-contest clauses, the method of disinheriting will vary by state and the local rules should be followed.

Once complete, the will must be signed (executed) by the testator. If he/she is unable to sign his/her name, the testator may affix a “mark” on the signature line of the will. The witnesses then must attest to having seen the testator make his/her mark in lieu of a signature on the will. The will is then signed by another individual at the direction of the testator, while the testator is present.

After the testator has signed the will, in the presence of witnesses, the witnesses will sign the will. The witnesses do not need to read the content of the will or be informed of its content. They only need to understand that they are witnessing the testator signing his/her will, which in most states, is done in the presence of the testator. In some states, the witnesses must also sign in the presence of each other. There are two components to the witnessing of the execution of a will: attestation and subscribing. A witness will first attest that he/she watched the signature of the testator. The witness will then subscribe - or sign after the testator’s signature.

As with the testator, the witness must be competent, able to witness and sign the document. The testator should be signing and attesting freely and not be under any duress or undue influence. This is important because, at a later date, should he/she be called to testify that the testator’s will was executed properly, the witness must be able to effectively validate the will and testify to the testator’s capacity and competency at the time the will was executed. Additionally, the witness should not be an “interested party” or beneficiary of the will. While this may not be a statutory requirement, depending upon the state, a witness who is an interested party or beneficiary is generally frowned upon by the courts. In some states, any bequest or devise made in the will to that beneficiary could make the gift void and/or may invalidate the will completely. Some states have an age requirement to witness a will, which is typically eighteen (18) years of age. While other states may not have this requirement, most attorneys will err on the side of caution and not have a witness who is under the age of eighteen.

Some states require that the witnesses signatures be notarized - note this is the witnesses’ signatures not the testator’s - for the will to be valid. Some states accept a “self-proving” affidavit, which is a document wherein the testator and/or witnesses swear and affirm before a notary that the will was executed as required. This eliminates the need for “live” testimony during the probate process. The self-proving affidavit also serves to eliminate the problem of having to locate a witness many years after the will has been executed. It is often impossible to locate a witness; or, in some cases, a witness may already be deceased. Having to locate a witness can be a substantial expense against the estate.

There are two additional types of wills that may be considered by the court: holographic and nuncupative wills. A holographic will must be handwritten, however, it must be handwritten by the testator; it cannot be printed or typed - even if these actions are performed by the testator. The will must be signed by the testator; however, the holographic will is not witnessed. This type of will should follow all other statutory requirements to be a valid will.

A nuncupative will is an oral will. Only a few states recognize a nuncupative will and then only under limited circumstances. An example of a nuncupative will is one that is done during the last moments of a terminal illness or during military service at time of war. There must be witnesses and the “will” may only provide instruction as to the disposition of personal property.

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A will can be changed or revoked at a later date. If a person’s circumstances change (e.g., a spouse dies, the client marries or remarries, a child is born or dies or there is an inheritance), the client would need to change or revoke their will. In fact, most attorneys recommend that clients review their estate plan - will and any other related documents - at least every three to five years and/or whenever there is a change in financial or personal circumstances.

A codicil is a method of changing the terms of a will, wherein the client needs to make modifications to specific sections of the will. The codicil is an amendment to the original document; however, it must follow the same formalities upon execution. The codicil incorporates by reference the original “republished” will. Many attorneys prefer to have the client execute a new will when there are changes to make sure any defects that might be present in the original will are cured, that any new statutes or provisions required will be included and because the codicil requires the same formalities to execute as a will.

In general, wills can be revoked by: physical act, operation of law or subsequent writing. Revocation by physical act consists of burning, tearing or shredding, canceling - writing cancelled across each page - or other means of destruction. Revocation by operation of law is a revocation by a subsequent act such as marriage or divorce. Revocation by subsequent writing occurs when a person executes a new will and states in the introduction of the will that he/she revokes all wills and codicils previously made. A paralegal should study his/her state statues with respect to revocation as some of these methods may or may not be recognized by the state court.

Other Documents and Information Relating to Estate Planning The attorney may need to discuss various strategies that will impact the client’s estate plan such as Social Security, Medicare, Veteran’s benefits, Individual Retirement Accounts (IRA) and Roth IRA’s, and other benefits to which the client may receive or be entitled. In addition, any potential inheritance, as well as children with special needs and children from previous marriages should be addressed.

The firm will also want to make sure that the client’s complete estate plan is prepared and that all documents are properly executed and documented. The attorney should confirm with the client what additional documents must be prepared and/or actions the client must take. For example, while insurance policies pass outside of the estate, the client may have decided to make the trust the secondary beneficiary for various reasons which are too involved to discuss here. If this is the case, the attorney will need to provide instructions to the client on how to accomplish this transfer. The same is true with real property or other personal property that will be transferred, assigned or conveyed to the trust. Have the appropriate deeds or property transferred been prepared and recorded by the firm or is the client responsible for following through in completing these tasks? In the case of an irrevocable trust, the trustee will need to determine whether he/she is responsible for sending the Crummey letters to the beneficiaries and who is responsible for making payments to the account. If the client/trustee will be taking care of these functions, then the attorney will likely need to provide the client with reminders about their obligation. If the law firm will be taking care of these functions, the paralegal should calendar these dates.

The attorney will also want to discuss whether the successor trustee or other agent should receive copies of the estate planning documents and admonish the client that the original documents should be kept in a fire-safe location. It is always a good idea for the firm to send a closing letter to a client once the matter is finalized, whether the case involves estate planning or probate, to make sure that the client understands any additional responsibilities he/she may have with respect to the estate and documentation, particularly to avoid malpractice so that the client cannot state, at a later date, that he/she did not know there were additional responsibilities once the matter was complete.

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Ethics As with any legal specialty, ethics is a concern for the paralegal. Whether it is a person calling the firm to see if the firm prepared a will for Mrs. Smith or a child brings a parent into the office and wants to be included in the consultation, care must be taken to protect the client’s confidentiality.

While the potential for issues with regard to privilege and professional responsibility always exists, two of the most common areas of ethical concern in estate planning are conflicts of interest and confidentiality. Whether it is making sure that the administrator or trustee is adhering to the fiduciary responsibility with which they have been entrusted, maintaining the IOLTA account holding estate assets until distribution to the beneficiaries, preparing the proper documents in a timely manner in order to move the estate toward resolution or making sure the appropriate tax returns are prepared and filed, the attorney and paralegal must do their utmost throughout the process to maintain the highest integrity and ethics with every individual and/or institution/organization with whom they come in contact. There are many opportunities to fall short when it comes to ethics and professional responsibility within the scope of estate planning given the financial and timing aspects in this area.

A conflict of interest may arise if a couple presents for estate planning and when one of the clients has retained the firm for a previous legal matter. For example, if the firm is small and provides legal services in a number of different practice areas and the firm had previously assisted husband with a premarital agreement, it would now be a potential conflict of interest to prepare estate planning documents for husband and his wife. Likewise, if the firm had represented wife in a custody battle with a former spouse, it is a potential conflict of interest to prepare estate planning documents for wife and her new spouse. The attorney must carefully follow the Rules of Professional Conduct and any specific local rules when considering representation of a client with whom there is a potential conflict of interest or where confidentiality could be breached. From the paralegal’s perspective, he/she should be diligent in performing conflict checks and alerting the attorney before the client has retained the firm to prepare estate planning documents.

As referenced in the first paragraph of this section, if a person passes away, it is very common for a child or other family member to call and inquire if the firm had prepared any estate planning documents for the decedent. It is likely that the paralegal may be the first person in the firm that speaks to the caller. Under no circumstances should the paralegal give the caller any information. The paralegal should take the name and telephone number of the caller, the name of the decedent - preferably the full name, the decedent’s date of birth and the date and location of death. The paralegal should then tell the caller that they will ask the attorney to give them a call to discuss the matter. Remember that the caller is frequently upset and unwilling to wait for answers to their questions. However, the paralegal cannot breach the confidentiality of the client, even though the client is now deceased.

Another common scenario is that an elderly person will come to the office with a child and/or children who want to “help” the parent “get their affairs in order” or to make modifications to existing estate plans.

One concern of the attorney may be the elderly person’s cognitive state and whether he/she is able to make decisions for him/herself. Another concern may be a child’s motivation in wanting the parent to take care of the estate planning needs by making sure that the parent has a will, powers of attorney and/or advance directives or whether the child’s motivation is to become the beneficiary, executor/trustee, agent or principal of any documents that are prepared for the elderly client. The child or person accompanying the client may insist on sitting in on the meeting with the attorney. It is ultimately the attorney’s decision how he/she best handles this type of situation. From an ethics standpoint, however, it is always best for the attorney to have, at least, the initial meeting only with the client. This will give the attorney an opportunity to gauge the client’s cognitive abilities, as well as hear the client’s wishes without any interference, coercion or duress from anyone else. The client may certainly waive the privilege for future

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meetings, but should do so only after discussing this matter with the attorney and understanding the ramifications of waiving the privilege.

As indicated previously, another potential area of malpractice is that the client does not feel they were adequately informed of any subsequent responsibilities or actions to be taken. It is very important to provide a client with detailed instructions elaborating any actions that remain his/her responsibility at the conclusion of the firm’s representation.

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Sample Questions Q:

Property that passes directly from a decedent to another person without court authorization is: A. probate property B. a gift C. non-probate property D. an asset

A:

(C.) Only property passing to a designated beneficiary via a third-party contract (retirement, insurance, etc.) is considered non-probate property; it is not included in the probate/estate administration. All other property - gifts, trusts and assets - are property of the decedent’s estate and are subject to distribution through the probate process.

Q:

An intestate heir taking by lineal representation of his/her deceased ancestor is called: A. per stirpes B. per capita C. by class D. heirship

A:

(A.) Per stirpes is the Latin term that literally means “by the roots.” If an estate is distributed per stirpes, each living member of a group of beneficiaries closest to the person making the distribution will receive an equal share of the estate. However, if one of the beneficiaries predeceases the person making the distribution, that beneficiary’s descendants will take by representation the share of the estate to which their parent would have been entitled.

Q:

Another name for an oral will is a: A. holographic will B. nuncupative will C. declaratory will D. living will

A:

(B.) By definition, a nuncupative will is an oral will.

Q:

A trust’s term of existence is limited by the: A. uniform trust code B. inter vivos trust doctrine C. rule against perpetuities D. generation-skipping tax

A:

(C.) A trust’s term of existence is limited by the Rule Against Perpetuities. A future interest must vest within a certain period of time. This period is limited to the duration of a life or lives in being (the “measuring lives”) at the time the interest in the property is transferred, plus 21 years.

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Q:

The decedent’s first cousin’s son is related to the decedent by: A. 3 degrees of separation B. 4 degrees of separation C. 5 degrees of separation D. 6 degrees of separation

A:

(C.) The Table of Consanguinity provides that a decedent’s first cousin’s son is related to decedent by 5 degrees of separation.

Q:

A document concerning a person’s wishes with respect to life support is called a: A. durable power of attorney B. health care proxy C. advance directive D. living will

A:

(D.) A person’s wishes concerning life support is covered in a living will.

Q:

A tax imposed on the recipient of property from a decedent is called: A. estate tax B. gift tax C. inheritance tax D. income tax

A:

(C.) Inheritance tax is the tax imposed on the recipient of property from a decedent.

Q:

The term used when a state receives the property of an intestate is: A. absorption B. escheat C. taxation D. assumption

A:

(B.) Escheat is defined as the reversion of property to the state upon the death of the owner when there are no heirs.

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Domain 02: Substantive Areas of Law DOMESTIC RELATIONS

Most family law cases involve parties seeking to initiate or defend an action for dissolution of their marriage, commonly referred to as a divorce. Besides divorces, family law also encompasses adoptions, legal separations, annulments, paternity actions, premarital agreements and domestic partnerships.

Local courts may refer to family law matters as “Domestic Relations.” Most jurisdictions hear family law matters in the civil division, and have set aside a specific department for family law or domestic relations matters. In some jurisdictions, guardianships and juvenile dependency cases are heard in the family law or domestic relations court.

In most jurisdictions, the parties are known as “Petitioner” and “Respondent” as opposed to other civil proceeding designations of “Plaintiff” and “Defendant.” In issues dealing with custody and visitation, the parties may be referred to as “Mother” and “Father.” Increasingly, the courts are referring to each party by their first name when dealing with both opposite sex and same sex couples with minor children.

Venue and jurisdiction are dependent on the domicile of the parties. This means that the state in which the parties established their current legal residence will have jurisdiction to hear the dissolution proceeding.

The venue will be the county in which at least one of the parties has established the state’s residency requirements.

During a divorce proceeding, the parties may seek an adjudication of issues such as legal and physical custody of their minor children, visitation rights, child support, spousal support, division of property and attorney’s fees. Most dissolution cases are resolved by agreement between the parties. Issues related to property division, support and child custody may be hotly contested and may even go to trial. Preparing for trial is the same as it is in any other civil matter: discovery is conducted, settlement conferences are held and a trial commences, if resolution is not reached.

Family law is a specialized area of law that is governed by state law. Paralegals in a family law practice will have a basic knowledge of the substantive law and the procedural aspect of family law cases and the issues involved in each of them.

This chapter is meant to provide a broad overview of family law for the purposes of studying for the PCCE®. It is not meant to be state-specific.

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Divorce/Separation/Annulment Legally, a marriage is a contract between two people. Married couples have financial and personal duties during marriage and after separation of divorce. State laws determine the extent of those duties. When people decide to terminate their marriage, there are often issues that need to be resolved such as child custody and visitation, support, division of property, attorney’s fees and other issues related specifically to that marriage.

There are two ways a marriage can be terminated: through civil annulment or dissolution (commonly referred to as divorce). For various reasons, parties may also elect a legal separation as opposed to terminating their marriage by dissolution or an annulment.

Dissolution of Marriage/Divorce A dissolution of marriage or divorce is the formal termination of the parties’ marriage.

Irreconcilable differences are the most common Grounds for a dissolution, or No-Fault Divorce.

Some states still require the person seeking a divorce to state specific grounds for a divorce, such as: adultery, mental cruelty, physical abuse, abandonment, or fault divorce.

A judgment of dissolution or decree of dissolution, when it becomes final, restores married persons to “single” status. It also resolves the issues of child custody and visitation, spousal support and division of property and other issues related specifically to that marriage.

Legal Separation A legal separation is a proceeding in which the parties’ marriage is not terminated. The proceeding for a legal separation is the same as the proceeding for a dissolution of marriage or divorce, from the grounds used to seek the legal separation, to the entry of the judgment or decree of legal separation.

A judgment or decree of legal separation does not terminate the marital status and the parties remain married even though they may be living apart in separate homes, having resolved issues of child custody and visitation, spousal maintenance (or spousal support), division of property and other issues related specifically to that marriage.

A practical reason a party may choose a legal separation instead of a divorce may be that one party is dependent on the other’s medical insurance which would terminate upon entry of a decree of dissolution. Parties may request a legal separation due to religious reasons or personal beliefs. A legal separation may also be requested if the residency requirements have not yet been met for a divorce proceeding.

Annulment Parties seeking a civil annulment of the marriage must meet very specific grounds to be able to request a nullity. Annulments can be void or voidable. Your own state’s codes will set forth the requirements needed to request an annulment. There are two types of annulments: Void Marriage Marriages that are incestuous or bigamous in nature are considered void, or as though it never had any force or effect. For example, wife marries husband number two without terminating her marriage to husband number one.

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Voidable Marriage A marriage that has a legal defect at the time the marriage took place is considered voidable. The marriage may appear on its face to be valid, but the defect at the time the marriage took place makes it void. Examples of voidable marriages include physical incapacity, fraud, force or the age at the time of the marriage. If no one brings the defect to the attention of the court, the marriage will continue as though it is valid.

Generally, annulments can be processed fairly quickly once the grounds have been established.

Depending on local rules, the court will determine whether a putative spouse has standing to receive support and a share of the marital property. The goal is not to punish the putative spouse or innocent spouse for the wrongdoing of the other spouse. Upon entry of the annulment, the parties are returned to the status of unmarried persons and the marriage is deemed to have been “wiped off the books,” meaning that it never took place.

Divorce Proceeding A divorce proceeding commences with the filing of a “Petition for Dissolution” or “Complaint in Divorce” by one spouse and concludes when the court enters a Judgment or Decree of Dissolution terminating the parties’ marital status and resolving all outstanding issues. The period of time between the commencement of the proceeding and the conclusion of the proceeding (i.e., while the divorce is in progress) is called the “pendente lite” period.

To commence a divorce proceeding, one spouse files and serves a Petition for Dissolution,” “Complaint in Divorce,” or similar form on the other spouse. The other spouse is then required to serve and file a response to the petition within a statutorily prescribed time. If a spouse fails to file a timely response to the petition, the other spouse may seek to enter a request for a default judgment or have the matter continue to final resolution on an uncontested basis.

During the divorce process, either spouse may ask the court for orders relating to child custody and visitation, child support, spousal support, possession of family residence and other types of relief.

Also during the divorce process, the parties will exchange financial documents disclosing their assets, debts, income and expenses. This puts the parties in a position to begin settlement discussions or negotiations by allowing them to fully understand their marital estate and their respective income and financial needs.

Many times, parties are able to reach an agreement on how to divide their property and deal with child custody and visitation, child support, spousal support and other outstanding issues in an amicable basis, either on their own or with the assistance of their lawyers, mediators or a settlement judge. In these cases, the parties enter into a settlement agreement, which is then submitted to the court for approval. Once the court approves the settlement agreement, it enters a Judgment or Decree of Dissolution incorporating the agreement and terminating the parties’ marital status.

If the parties are not able to reach an amicable agreement, a trial before a Judge will be conducted and after all issues are resolved, the court will enter a Judgment or Decree of Dissolution.

Intake/Conflicts Check A paralegal’s initial involvement in a family law case frequently starts when a prospective client seeks representation by a lawyer. At that time, a conflict check is run to confirm that no conflicts of

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interest exists preventing a lawyer from representing a client. In marital dissolution cases, the following information is obtained in order to run the conflicts check: •

Full name of potential client

•

Full name of spouse of potential client

•

Any aliases or former names of potential client and his /her spouse

•

Names of any business interests

Once it has been established that no conflict exists, a more detailed intake is conducted by the paralegal to obtain basic information from the potential client such as: date of marriage, date of separation, number of children and their ages, employment, assets and debts, visitation schedules, etc.

Frequently, a detailed Questionnaire will be provided to the prospective client to fill out prior to the initial interview with the lawyer.

Initial Interview An initial interview is scheduled between the lawyer and client once a client clears conflicts and the initial intake information is obtained. Among other things, the initial interview allows: •

the lawyer and potential client an opportunity to determine whether they want to work together,

•

the lawyer to explain how the representation will proceed if the potential client decides to retain the lawyer;

•

the lawyer to do some fact gathering and obtain an overall view of the potential client’s situation.

•

the lawyer to answer any immediate questions of the client.

A paralegal may be asked to attend the initial consultation between attorney and client, as well as, subsequent attorney/client conferences. During the initial meeting, a paralegal will take notes and begin collecting factual information. If the client decides to hire the lawyer, the paralegal will usually prepare an engagement letter for the client to sign.

Throughout the case, family law paralegals are likely to have considerable direct contact with clients who are going through extremely difficult and emotional times. Empathy is an important trait to have when dealing with sensitive situations and clients in distress. A paralegal must balance the procedural aspect of the case with the emotional support needs of a client.

Initial Pleadings As stated above, dissolution proceedings are commenced when one spouse (called the Petitioner) files a “Petition for Dissolution,” “Complaint in Divorce,” or similar form with the court and serves it, along with a Summons, on the other spouse (called the Respondent). Personal jurisdiction over the Respondent is acquired when he or she is personally served with the summons, petition and other related documents.

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The petition contains general information relating to the parties such as date of marriage, date of separation, names, ages and dates of birth of any minor children of the parties and a list of the parties’ assets and liabilities. The petition also sets forth the following: •

confirmation that the Petitioner has met the state’s residency requirements. (Residency requirements means that one or both of the parties must be a legal resident of the state and the county in which the matter is going to be heard for a set period of time. This can be anywhere from 30 days to six (6) months.);

•

grounds on which the Petitioner is seeking a divorce (i.e., Irreconcilable Differences, Irretrievable Breakdown of the Marriage, etc.); and

•

relief requested by the Petitioner (i.e., termination of marriage, determination of support (child and/or spousal), property rights, legal and physical custody of children, attorneys’ fees, restoration of a spouse’s former name, and other relief).

If the parties have a minor children, most courts will require a Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) form to be completed at the time of filing the petition for dissolution or legal separation of the parties. The form asks questions related to the residency, custody and control of the minor children, going back for a specific length of time, i.e., six months, five years, etc. The form also asks if the minor children are subject to any other legal proceedings, including the nature and jurisdiction of the matter. Filing this document establishes the court’s jurisdiction over the minor children to resolve any custody disputes so that no other court has jurisdiction over the minor children related to custody.

Then, the Petition, along with a Summons and UCCJEA form and any other locally required forms, will be served upon the Respondent. Some states allow a Respondent to accept service of the summons and petition rather than have a process server personally serve the Respondent. The court’s jurisdiction over the Respondent in the dissolution proceeding is complete when he or she is served with the summons and petition.

Once the service on the Respondent is complete, the Respondent is then required to serve and file a Response to the petition or complaint within a statutorily prescribed time. The Response contains the same information as the petition and sets forth the Respondent’s request for relief. If Respondent fails to file a timely response to the petition or complaint, the Petitioner may seek to enter a request for a default judgment or have the matter proceed on an uncontested basis.

Family law paralegals will generally draft the initiating pleadings, including the summons and petition (or response if representing the Respondent), for the lawyer to review. They will also make arrangements for the documents to be signed, filed and served. It is important for the paralegal to keep track of the date the Respondent is served with the summons and petition and the deadline for the Respondent’s response.

Immediate Issues/Interim Orders/Temporary Hearings After the service of the petition or complaint, it may be necessary to obtain interim or temporary orders (also referred to as “pendente lite” orders). These orders may resolve immediate issues such as: •

who will have temporary possession of the family residence and who will pay for the mortgage, taxes, insurance on the residence?

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•

what type of temporary custody/parenting arrangement is in the child(ren)’s best interest?

•

what amount of temporary child or spousal support is appropriate?

•

who should pay certain debts on a temporary basis?

•

who will pay attorney’s fees during the pendency of the proceeding?

•

should there be a temporary restraining order to protect the interests of a party or the parties’ child(ren)?

The types of interim relief requested are driven in large part by the particular circumstances of the case.

Sometimes, parties will enter into a written stipulation and order resolving interim issues and then submit the signed stipulation and order to the court for its approval. If the parties are unable to reach an agreement on interim issues (or it is not appropriate to do so because the case involves domestic violence), then a formal hearing will be held by the court.

In order to obtain a formal hearing, a party will need to file and serve a motion setting forth the relief requested and submit sworn testimony in support of that party’s position. Sworn testimony is either in the form of a written sworn affidavit or a declaration signed under penalty of perjury. The responding party then files and serves a response to the motion, including sworn testimony in support of that party’s position, within a statutorily prescribed time. Thereafter, in some states, the party who brought the motion will be afforded the opportunity to file and serve a reply to the response prior to the hearing.

At the hearing, the parties’ respective lawyers will argue their client’s positions and the court will issue a written order deciding the temporary issues brought before it.

Family law paralegals keep track of the deadlines associated with motions, arrange for filing and service of process and provide assistance in preparing forms, declarations/affidavits and other motionrelated documents and gather and attach exhibits to the pleadings. Paralegals also prepare organized hearing notebooks (physical or electronic) for the lawyer that contains all pleadings related to the pending motion, as well as any relevant pleadings, documents, correspondence, and case law. More experienced family law paralegals may conduct legal and factual research into the issues raised in the motion pleadings.

Fact Gathering and Document Management Once the dissolution proceeding is commenced, the next steps involve exchanging financial information and resolving any issues that arise during the pendente lite period. This involves a considerable amount of gathering of facts and documents by the paralegal.

Fact gathering and document management are crucial aspects of any case and paralegals need to familiarize themselves with the case facts and issues throughout the case. Fact gathering in marital dissolution proceedings often involves obtaining extremely personal information and documents from a client. This personal information involves information relating to marital history, child(ren), educational background, work history, assets and debts, income and expenses and medical and health issues.

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Fact gathering also involves the gathering of documents. Some important documents to obtain from clients in a marital dissolution proceeding include the following: •

Income tax returns

•

Paystubs and W-2s

•

Real estate deeds and mortgage statements

•

Bank and brokerage account statements

•

Vehicle title certificates

•

Life insurance policy summaries

•

Retirement account statements

•

Business records (i.e., financial statements, bylaws or operating or partnership agreements, K-1s)

•

Statement regarding debts (credit card, student loans, etc.)

•

Custody related records (i.e., school records, children’s medical and health records, etc.)

•

Medical records, if relevant

•

Social media records

•

Quickbooks or Quicken data (if parties use software to keep track of their expenses)

These records may be in either electronic or physical form. An increasing number of law firms are moving away from maintaining a physical file and instead are maintaining an electronic file as the official client’s file. Some firms have document management systems for managing and storing documents and others prefer to store and organize documents on their network or their system’s drive(s). This issue is covered in more detail in the Law Office Admin Tech Chapter.

It is important to have a system for managing the documents in each case. Developing a standard naming convention is also important. The following is an example of naming statements for a bank account in John’s name for the period 5/1/19 to 7/31/19: •

2019-07-31 WFB x1234 Statement – John

•

2019-06-30 WFB x1234 Statement – John

•

2019-05-31 WFB x1234 Statement – John

This naming format will work for Word, Excel and pdf documents. A consistent naming convention is also helpful in determining what statements or documents may be missing for a particular account or asset.

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Knowing what is contained in every document in the file is not always possible or practical, especially when a paralegal juggles multiple cases at the same time. However, knowing where to quickly find every document in the file is key to success.

Organization of documents in family law cases is distinct from the organization of documents in litigation and other types of cases. Use of litigation software programs such LexisNexis Concordance, IPRO Eclipse, etc. are not commonly used in family law cases, except in extremely documentintensive cases involving multiple complex issues. Microsoft Office OneNote software (an electronic paper notebook) or LexisNexis CaseMap Suite software (documents and issues organizer) are used by some family law practitioners and the software is fairly easy to learn.

Creating electronic (or physical) folders organized by categories and subcategories is a customary method for organizing most documents in family law cases. General categories of folders include assets, debts, income, expenses, experts as well as specific issues such as custody and visitation, etc.

Under the asset folder may be subcategories such as real estate, bank and brokerage accounts, vehicles, retirement accounts. Subcategories of folders under the income folder may be tax returns, paystubs, etc. This way, every document relating to a particular asset, debt or the parties’ income and expenses can be found almost instantly.

Examples of the types of folders and subfolders to create for organizing assets, debts, income and expenses in a marital dissolution proceeding and the types of documents that may contained in these folders and subfolders are as follows: Assets (Folder) Real Estate - 1234 Elm Street (Subfolder) •

Deed to 1234 Elm Street

•

Mortgage Statements for 1234 Elm Street

•

Appraisal of 1234 Elm Street

Personal Property (Subfolder) •

List of Personal Property

•

Jewelry Appraisal

Vehicles (Subfolder) •

Certificate of Title for 2019 Ford Fusion

•

Ford Credit Statement for 2019 Ford Fusion

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Bank and Brokerage Accounts (Subfolder) •

•

WFB Account x1234 (Subfolder) o

Statements

o

Cancelled Checks

BofA Account x4321 (Subfolder) o

Statements

Retirement Accounts (Subfolder) •

Statements for My Employment 401k Account

Life Insurance – Prudential x1234 (Subfolder) •

Summary of Policy

Stock Options (Subfolder) •

Notice of Grant Award of ABC Company Stock Options

Business Interests – ABC Company (Subfolder) •

Bylaws of ABC Company

•

Financial Statements of ABC Company

Debts (Folder) Credit Cards (Subfolder) •

Statements for Visa Account x1234

Student Loans (Subfolder) •

Statements for Navient Student Loan Account x4321

Income (Folder) Income Tax Returns (Subfolder) Paystubs (Subfolder) W-2s (Subfolder) Expenses (Folder) List of monthly expenses (Subfolder)

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Family law paralegals not only organize and manage documents and information, they ascertain what documents and information are still needed to complete financial disclosures and respond to discovery requests.

Financial Disclosures and Discovery Because it is vital that parties make informed decisions on how to divide their assets and debts and provide for support of their child(ren) and themselves, each party must be fully informed of each party’s income, expenses, assets and debts. In addition, this information is required in order for the court to properly adjudicate any matters at issue. Without such information or documentation, the court may be prejudiced in its ability to make interim and final orders.

To that end, parties to a divorce proceeding are required to exchange complete and accurate information regarding their assets, debts, income and expenses, together with supporting documents which include the following: •

Income tax returns

•

Paystubs and W-2s

•

Real estate deeds and mortgage statements

•

Bank and brokerage account statements

•

Vehicle title certificates

•

Life insurance policy summaries

•

Retirement account statements

•

Business records

•

Statement regarding debts (credit cards, student loans, lines of credit, etc.)

Some states require that specific disclosure forms or financial affidavits accompany a party’s financial disclosure. Family law paralegals are very involved in putting together a client’s financial disclosure. They also review the other party’s financial disclosure to determine deficiencies to assist the lawyer in determining what further discovery is needed.

Family law paralegals also compile summaries of assets and debts and various facts based on the information contained in both parties’ financial disclosures. Proficiency in Microsoft Excel® is an important skill for paralegals to have in compiling a summary of the parties’ assets and debts. This summary of assets and debts can be used to assist the lawyer in preparing a settlement proposal for dividing the marital estate, determining further discovery needs or preparing for trial.

Discovery in family law cases is done on either an informal or formal basis. Methods of formal discovery available in family law cases are the same as civil cases, namely; document requests, interrogatories, requests for admissions, subpoenas and depositions.

Paralegals play an important role in the discovery process including, assisting in propounding and responding to formal and informal discovery requests working with the client to gather the documents

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necessary to prepare responses to discovery requests and arranging for the service of discovery requests, subpoenas and deposition notices. In addition to tracking discovery deadlines, they manage, inventory and summarize documents and information produced in response to discovery requests.

Mandatory Waiting Periods Some states have mandatory waiting periods (also known as” cooling off” periods) before a marriage can be legally dissolved. There may be times when the mandatory waiting period has expired but the parties have not yet resolved their differences. Some states allow parties to bifurcate the issue of marital status and have the marital status dissolved, tabling the property and support issues for a later time. Jurisdiction will be reserved over the remaining issues. Once the remaining issues are resolved, the court will enter a final Judgment or Decree on Reserved Issues.

Resolution (Settlement/Trial) Once financial disclosures are exchanged and the discovery process is complete, the next step is to begin settlement negotiations. Settlement negotiations can involve much of the following: •

counsel exchanging settlement proposals back and forth.

•

parties attending mediation, with or without their counsel.

•

parties and counsel attending informal settlement conferences.

•

parties and counsel attending formal court ordered settlement conferences.

If the parties are able to resolve their case through settlement negotiations, they enter into a Marital Settlement Agreement or Settlement Agreement which is then submitted to the court for approval.

Once the court approves the settlement agreement, it enters a Judgment or Decree of Dissolution incorporating the agreement and terminating the parties’ marital status.

Most family law courts require parties to engage in a mandatory settlement conference prior to trial as a last ditch effort to settle some or all of the issues in an effort to avoid trial or limit the issues heard at trial. If the parties are not able to reach an amicable agreement, a trial will be conducted and after all issues are resolved, the court will enter a Judgment or Decree of Dissolution. Trials in marital dissolution proceedings are heard before a judge, not before a jury.

Paralegals provide invaluable assistance to lawyers when preparing for trial, including but not limited to, preparing exhibit and witness lists, exhibits, trial and witness notebooks for the lawyer; summarizing depositions; preparing and serving subpoenas on fact and expert witnesses; and providing necessary documents and information to experts. Paralegals attending trial will take extensive notes and keep track of exhibits, as well as coordinate the attendance of witnesses.

Issues to be Addressed/Resolved in Dissolution Proceeding Custody and Visitation Child custody and visitation can be one of the most contested and emotional aspects of a divorce. The best interest of the child is the most important thing when deciding custody and visitation. Also important is a child’s need to have frequent and continuing contact with both parents, except where the contact would not be in the best interest of the child.

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Most states operate under the assumption that joint custody is usually in the best interests of the child, barring extreme circumstances such as abuse, neglect or substance abuse.

Joint Legal Custody Joint legal custody means both parents share responsibility of providing for the health, education and welfare of the minor child(ren).

Joint Physical Custody Joint physical custody means both parents will spend equal or substantially equal time with the minor child(ren).

Joint/Shared Custody Joint or shared custody is the most common form of custody, consisting of joint legal custody and joint physical custody. The parents have the joint responsibility of making decisions related to the health, education and welfare of the minor child(ren). The parents will also spend equal time or substantially equal time with the child(ren). This is also known as co-parenting. Coparenting is generally the healthiest arrangement for the child(ren) except in cases involving abuse, neglect and substance abuse. In order for co-parenting to be successful, the parents will need to maintain frequent and positive communications with each other and commit to working together to make their child(ren)’s welfare and well-being a priority.

Sole Custody An award of sole custody is rare. Sole physical custody may be awarded because there is a history of child abuse and it will not be in the child(ren)’s best interest to live with the abusing parent, thereby limiting contact. Sole legal custody may be granted because a parent is absent or has abandoned the family and is not available to help provide for the care of the minor child(ren).

Parenting Plan A Parenting Plan is a written agreement between parents that outlines the amount of time a child will spend with each parent (timeshare) and how the parents will make decisions affecting a child’s welfare and education. It is also known as a custody and visitation agreement or timeshare plan. Parents can choose a schedule that works best for them and their children. Types of joint physical child custody schedules may include: •

2-2-3 Child Custody Schedule – The child(ren) spends 2 nights with one parent at the beginning of the week; the next two nights with the other parent in the middle of the week; then the next three weekend nights with the first parent. The next week, the timeshare schedule is alternated.

•

2-2-5-5 Child Custody Schedule - The child(ren) spend 2 nights with one parent at the beginning of the week; the next two nights with the other parent in the middle of the week; then the next three weekend nights and the first two nights of the following week with the first parent for a total of 5 nights. The parents then alternate this timeshare schedule.

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Parallel Parenting Parallel parenting allows parents to share custody of their child(ren) while having little direct contact between one another. Parallel parenting allows for high-conflict co-parents to maintain their co-parenting responsibilities while disconnecting from each other personally.

Visitation Visitation is access to a child by a parent who does not have physical custody of the child(ren) or has physical custody of the child(ren) less than half the time (the “non-custodial parent”). This allows the non-custodial parent to continue to have a relationship with the child(ren). If the noncustodial parent lives nearby, a specific schedule may be set, such as one night during the week and every other weekend. If the non-custodial parent lives out-of-state, visitation may be set for longer periods of time in the summer, school breaks and holidays.

Supervised Visitation Sometimes to ensure a child’s safety and well-being, the court will order a child only have contact with a parent when a neutral person is present during the visitation. This visitation arrangement is often referred to as “Supervised Visitation.” The court may order supervised visitation when there is a history of domestic violence, neglect, substance abuse or mental illness.

Other reasons for supervised visitation include parental threat of abduction and the need to slowly introduce a parent and child or reintroduce a parent and child after a long absence. A supervised visitation order will also specify the time and duration of such visits and may specify the location of such visits.

“Bird Nesting” “Bird Nesting” or “Nesting” is a shared custody arrangement where the child(ren) remain in the family home while the parents take turns living in the house with the child(ren).

When parents separate, the need to make decisions on where their child(ren) will live and spend time with each parent becomes paramount. These decisions are then memorialized into a parenting plan which is ultimately incorporated into a court order. Parenting plans also include provisions for sharing holidays and vacations, education, extracurricular activities, religion and medical and health decisions. Frequently, parenting plans need modifying as the child(ren) get older and parents’ lives change.

Sometimes parents can agree on a parenting plan, and other times they need the help of professionals or the court to come up with a plan that is in the best interest of their child(ren). Parenting Coordinators or Co-Parent Counselors can be employed to provide professional services to parents to assist them in developing or modifying a parenting plan. Some courts provide free or low cost mediation resources to assist parents in coming up with parenting plans.

There are also software programs, such as OurFamilyWizard®, that are designed to provide an effective way for separated and divorced parents to communicate and resolve any ongoing coparenting issues.

If the parties cannot reach an amicable resolution as to custody and visitation, these matters may be separately litigated before a judge. They may also be referred out to mediation, whether obtained privately or through a court-appointed mediator. The court may also appoint mental health

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professionals to get involved in high conflict custody disputes as well as a guardian ad litem for the child(ren).

In order for courts to determine the best interests of a child when custody is contested, the court may require parents to undergo a custody evaluation prior to trial. A child custody evaluation is a series of separate interviews. The evaluator will meet with each parent alone to observe that parent and to give that parent an opportunity to present his or her concerns about the child and the other parent.

The evaluator will also meet with the child and each parent separately to observe the relationship between parent and child. The evaluator may also interview other people in the child’s life, including step-parents and domestic partners, school officials or police, to see how others see the issues and family dynamics. The parents may undergo written or psychological testing.

The custody evaluator will prepare a written report of their assessment on how the child’s needs can best be addressed, the report may contain specific recommendations to the judge. Access to the written report varies from state to state – access may be restricted to attorneys and the judge or it may be available to both parents. It most jurisdictions, it is a confidential document not released to the public.

Family law paralegals assist with providing relevant court documents and information to the mediator, custody evaluator or guardian ad litem in contested custody cases as well as assist the lawyer in the preparation of a custody trial, if necessary.

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) The Uniform Child Custody Jurisdiction Act (UCCJA) was originally established in 1968, but was replaced in 1997 by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA was enacted by all U.S. states except Massachusetts. It is also not enacted in the District of Columbia and U.S. territories of Guam and the Virgin Islands.

The UCCJEA is designed to prevent competition between jurisdictions (both intrastate and interstate) and conflicts between courts in matters related to child custody and visitation. UCCJEA establishes enforcement provisions for child custody orders across state and international lines to help ensure the safety of the parties and their child(ren). The Act is designed to prevent one parent from kidnapping or removing a minor child from the current jurisdiction, moving to another state and filing a custody action in the sister state in an attempt to shop for the most favorable jurisdiction.

However, the Act does allow emergency orders to be obtained in other states in certain circumstances.

Sometimes, a victim of domestic abuse in a divorce proceeding may flee to another state for safety reasons and seek an emergency order of that state. Under the UCCJEA, even if another court has preferred jurisdiction, a court may exercise temporary emergency jurisdiction when “the child has been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.” UCCJEA §204. This will trigger mandatory communications between each state’s court in an effort to resolve the emergency and protect the parties and child.

Given today’s mobile society, the chances that one or both parents will move is great. Registering the court order related to custody and visitation in the state where a parent resides will go a long way toward resolving future conflicts related to custody and/or visitation. Registration puts the other states on notice that they do not have jurisdiction to hear any proceedings related to modification of an existing and/or current custody or visitation orders, except in certain emergency situations.

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Child Support Both parents are obligated to provide the necessities of life for their child(ren). This means that both parents are required to provide and pay for shelter, food, clothing, medical care and other necessities of life for their child(ren).

Child Support is the amount of money one parent pays to the other parent for support of their child(ren). Most states have established guidelines that are used in determining child support based on one of the following models: Income Shares Model Both parent’s income is combined to determine parental income available for support. This model is based on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents lived together. Forty states plus Guam and the Virgin Islands use the Income Shares Model to determine child support.

Percentage of Income Model Child support is based on a flat or varying percentage of the income of the obligor (i.e. the noncustodial parent). Under this Model, the income of the custodial parent is not considered. Seven states use the Percentage of Income Model to determine child support (Alaska, Arkansas, Mississippi, Nevada, North Dakota, Texas and Wisconsin).

Melson Formula This formula is a more complicated Income Shares Model that is designed to ensure each parent’s basic needs are met in addition to their child(ren). This formula is used in three states (Delaware, Hawaii and Montana).

The District of Columbia uses a hybrid model that starts as a varying Percentage of Income Model and then is reduced by a formula based on the custodial parent’s income.

As additional child support, one or both of the parents will be required to maintain health insurance for the child(ren) and pay for certain child-related expenses such as uninsured medical expenses. By Federal regulation, all child support guidelines take into consideration the healthcare expenses of the children. The courts may deviate from the child support guidelines to take into account child care, education or a child’s special needs.

Generally, child support will terminate upon the following conditions: (a) the minor child reaches age 18; (b) the minor child becomes legally emancipated; (c) the minor child marries; or (d) the minor child dies. In cases where the minor child is over 18 years of age but has not yet graduated from high school, then support will terminate upon graduation from high school or age 19, whichever first occurs.

In order to secure a child support obligation in the event of the payor parent’s death, the court may order the payor parent to maintain a life insurance policy naming the other parent as beneficiary of the policy. The face value (or death benefit) of the policy will be in an amount that equals or exceeds the amount of the payor parent’s child support obligation. The payor parent will be ordered to pay the premiums due on such policy for the duration of his or her obligation to pay child support.

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Child support is not considered income for federal tax purposes. In other words, the recipient of child support does not have to claim child support payments as income on his or her income tax return.

Further, the payor of child support cannot include the amount paid for child support as a deduction on his or her income tax return.

Child support can be modified upon proving a Change of Circumstances. Reasons for changed circumstances may be: •

the income of one or both parents has significantly changed.

•

one parent has lost his or her job.

•

there has been a significant change in how much time a child spends with each parent.

•

the child’s needs has changed (i.e., costs for health care, child care or education have increased or decreased).

•

one parent has been incarcerated.

•

one parent has another child from another relationship.

A change in circumstances often occurs naturally throughout a minor child’s growth and some states provide for a periodic reevaluation of existing support orders.

The Family Support Act of 1994 provides for automatic Wage Assignment on the Obligor parent (paying parent) to insure that child support will be paid to the Obligee parent (receiving parent). With a wage assignment, if a parent ordered to pay support is regularly employed, the employer will take support payments directly out of his or her paycheck. It is the employer’s responsibility to withhold the wages if there is a wage assignment.

If the local child support agency is involved, the local child support agency will automatically issue a wage assignment. If the local child support agency is not involved, both parents can agree that payments can be made some other way and ask that service of wage assignment be “stayed” (i.e., put on hold). In this situation, the parents work out how child support will be paid and handle it between themselves.

Garnishment is a remedy available to the Obligee parent (receiving parent) if the Obligor parent defaults on payment of his or her child support obligation. Most jurisdictions require a form to be completed that contains both parents’ current contact information, identification information (birth date, social security number) and terms of child support. This form is either filed with the court having jurisdiction over the dissolution or custody/support proceeding or registered with the local child support agency or State Disbursement Unit.

Federal law places limits on the percentage of an employee’s wages that can be garnished. However, other types of income such as pension, retirement funds, unemployment benefit and public benefits may be garnished to pay child support arrears.

Failure to pay child support can result in the loss of business licenses, tax refunds, driver’s licenses or other financial penalties. Federal law prohibits anyone who owes $2,500 or more in child support to receive or renew a U.S. passport. Liens against real property can be recorded so that when the property is sold, past due support may be paid out of the proceeds from the sale.

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Parties may divorce in one state and then move to another after entry of the judgment or order of dissolution. The move may involve the minor child(ren) of the parties moving from one state to another. Moving out of state does not relieve, terminate or otherwise stop any child support obligations. To insure that support is still made and jurisdiction retained over the issue of child support, the Uniform Interstate Family Support Act (UIFSA) was adopted by all 50 states and U.S. territories. UIFSA is a mechanism that helps the Obligee parent (receiving parent) enforce support orders when the Obligor parent (paying parent) becomes delinquent in his or her support obligations.

The party receiving support should register the support order in the sister state where the Obligor parent (paying parent) is residing. In the event support becomes delinquent, the Obligee parent (receiving parent) will have a mechanism in which to enforce the support order. Registering support orders in the sister state will establish jurisdiction if any future enforcement or modification proceedings are necessary.

At the time a judgment or order terminating the marriage is entered, some states require a child support registry or some similar form to be completed and lodged with the court. This form is sent to a national database. The form contains information such as the jurisdiction of support, the terms of support (how much, when paid and who receives the support), the names of the minor child(ren), and the names, addresses, social security numbers and employment information for both parents. Entry of this form in the national database helps agencies track absent parents.

Alimony/Spousal Support/Separate Maintenance Not only do parents have a duty to support their children, most states provide that spouses have a duty to support each other during marriage. Upon separation or divorce, that duty may continue depending on the circumstances of each marriage.

Spousal Support is an award of money payable by one spouse (payor) to the other spouse (payee) for support during separation or following divorce. Spousal Support is also known to as “Alimony” or “Spousal Maintenance.” Duration of spousal support can be for a very specific time period and automatically terminate upon a specific date, or it may be unlimited, terminating only upon the marriage of payee spouse or the death of the payor spouse or the payee spouse, whichever first occurs.

Temporary or Interim Spousal Support Spousal support paid during the pendente lite period is called interim or temporary spousal support. Temporary spousal support is meant to preserve the status quo of the parties during the pendency of the proceeding. As a result, the factors or guidelines considered by the court when determining temporary spousal support are limited.

Permanent Spousal Support Permanent spousal support is not necessarily permanent. Permanent spousal support is the continuation of spousal support payments after the dissolution proceeding has concluded with the entry of the Judgment or Decree of Dissolution. In this situation, spousal support may terminate on a date certain or it may terminate only upon the marriage of the spouse receiving spousal support or the death of either party.

The age and health of the parties, the ability to earn or continue to earn an income and length of marriage come into play in deciding whether support is to be terminated. For example, if the

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marriage was over 30 years in length and one spouse never worked during the course of the marriage and has significant health issues, the court may choose not to terminate support as it may be difficult for the non-paying spouse to become self-supporting or earn an income sufficient to maintain the marital standard of living established during the marriage.

Factors or Guidelines for Determining Spousal Support The issue of spousal support is very complex in dissolution proceedings and each state establishes their own factors or guidelines for determining an award of spousal support, including the amount and duration. Some states consider marital fault or wrongdoing (i.e., infidelity, abuse, reckless spending, etc.) when determining spousal support; other states do not. The duration of spousal support may be unlimited or it may be capped so as not to exceed the length of the marriage or exceed one-half the length of the marriage.

Each state sets forth various factors to be considered by the court when ordering spousal support.

Certain states have guidelines and computer programs to help establish the amount and duration of support.

Some of the factors that are considered when determining spousal support include the following: •

Income and earning capacity of spouse seeking spousal support.

•

Income and ability of the supporting spouse to pay spousal support.

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Financial resources of each party, including assets and debts apportioned to each party.

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Standard of living established during the marriage and a party’s ability to maintain that standard of living.

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Needs of each party based on the standard of living established during the marriage.

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Length of the marriage.

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Age, health, mental and emotional conditions of each party.

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Age of child(ren) and impact on such child(ren) if primary custodian seeks employment outside the home.

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Length of absence from employment and the effect of such absence of earning capacity, career opportunities, seniority and retirement benefits.

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Contribution by one spouse to the other spouse’s education, training or career.

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Domestic violence.

Vocational Evaluation / Rehabilitative Support In proceedings when spousal support is an issue, the court may order a spouse to undergo testing or examination by a vocational training consultant. This vocational examination generally includes an assessment of the spouse’s earning capacity and ability to obtain employment based

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on the party’s age, health, education, marketable skills, employment history and the availability of current suitable job opportunities.

Some jurisdictions provide for the payment of spousal support for a specific time period to allow a spouse time to acquire sufficient education, training or skills to become self-supporting. This is sometimes called “rehabilitative” alimony or spousal support. A vocational evaluation can be helpful in identifying suitable job opportunities or potential careers that best suit a party given his or her aptitudes, interests and educational background. Such evaluation may also set forth a plan and timetable for a party to acquire the necessary skills, education or training to pursue specific job opportunities or a career.

Life Insurance to Secure Spousal Support In order to secure a spouse’s spousal support obligation in the event of his or her death, the court may order the payor spouse to maintain a life insurance policy naming the other spouse as beneficiary of the policy. The face value (or death benefit) of the policy will be in an amount that equals or exceeds the amount of the payor spouse’s spousal support obligation. The payor spouse will be ordered to pay the premiums due on such policy for the duration of his or her obligation to pay spousal support.

Tax Impact on Spousal Support The Tax Cuts and Jobs Act of 2017 impacts the taxability and deductibility of spousal support.

Under this law, spousal support payments made pursuant to a divorce or separation agreement executed on or before December 31, 2018 are considered taxable income to the recipient and are tax deductible by the payor for federal tax purposes. Spousal support payments made pursuant to a divorce or separation agreement executed on or after January 1, 2019 are not considered taxable income to the recipient and are not tax deductible by the payor for federal tax purposes.

On or after January 1, 2019, if parties enter into agreements modifying spousal support provisions set forth in existing agreements entered into prior to December 31, 2018, such modified agreements must contain specific language that complies with the Act in order for spousal support payments to continue to be considered taxable income to the recipient and tax deductible by the payor for federal tax purposes.

Most of the provisions of the Tax Cuts and Jobs Act of 2017 are set to expire as of December 31, 2025. As of January 2020, the tax impact on spousal support on or after January 1, 2026 is unknown.

Modifiable vs. Non-Modifiable Spousal Support Spousal support may be modifiable or non-modifiable depending on state rules. In some states, parties may enter into an agreement providing for the amount and duration of spousal support to be modifiable or non-modifiable.

Spousal support may be modified upon proving a changed circumstance, such as: •

a substantial increase in income of the person paying support or of the person receiving support.

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•

a substantial decrease in income of the person paying support or the person receiving support due to an involuntary job loss, medical condition or disability.

•

a decrease in need of the person receiving support due to remarriage or cohabitation with another person.

Non-modifiable spousal support means that under no circumstances can a party seek an increase or decrease in support in the future.

Waiver of Spousal Support Waiver of spousal support is a permanent waiver of support. If a spouse waives spousal support, he or she may not seek an order of spousal support in the future and the court will not have jurisdiction to consider such a request or award spousal support in the future, regardless of any hardship this may cause.

Whether it is appropriate for parties to waive spousal support is dependent on numerous factors and individual state laws and policies. It may be appropriate to waive spousal support in the case of a young, highly educated couple with the same earning capacity who have no children and who only have been married a few years. It might be unconscionable to waive spousal support in the case involving a spouse who is 60 years old, never worked outside the home and who is without the education or skills to obtain gainful employment.

To waive spousal support, the parties must enter into a written agreement waiving their right to spousal support from each other, regardless of any circumstances that now exist or may arise in the future, that would need to be approved by the court.

Property Rights and Allocation of Property Assets are items of property that are owned or possessed. Examples of assets are real property, household furniture and furnishings, vehicles, jewelry, bank accounts, retirement accounts, life insurance, stocks, businesses and private investments (i.e., corporations, partnerships and limited liability companies). Debts or liabilities are financial obligations that are owed such as mortgages on real property, car loans, credit card debts and school loans.

Property rights of a spouse to assets owned prior to marriage are different than the property rights of couples to assets acquired during marriage. When parties get divorced, each party’s respective property rights must be determined. Assets and debts previously shared by both spouses will need to be allocated between the parties.

Deciding who gets what assets and who pays what liability depends on whether your state is a Community Property state or an Equitable Distribution or Marital Property state. Your own state’s codes will help determine each spouse’s property rights and the correct process to be used when it comes to assisting clients with the division and distribution of assets and obligations of the marriage.

Ten states are considered Community Property states (Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin). All other states are considered Marital Property or Equitable Distribution states.

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Property Rights in Community Property States In community property states, Community Property is all income earned or property acquired by a married person during marriage. Each spouse holds an undivided 50% interest in all community property, as well as equal rights of management and control of all community property. Upon divorce, all community property assets are equally divided between spouses.

Property that is not community property is considered Separate Property. Separate Property is property (a) owned prior to marriage; (b) acquired during marriage through gift, inheritance or bequest; (c) acquired or earned after date of separation; or (d) assets excluded by a valid Premarital Agreement.

Rents, profits, interest, and other money earned from separate property are considered separate property even if received during marriage. Further, property acquired using separate property is also separate property. For example, if a party purchases a car using inheritance funds received from a relative, the car is considered that party’s separate property even if the car was acquired during marriage. Separate property is also any asset or debt that is acquired after date of separation, including earnings.

There is a general presumption that all property acquired during marriage is community property unless proven otherwise. The burden of proving property is a party’s separate property is on the party contesting the community property presumption. This is done by presenting evidence such as tracing the asset to a separate property source or providing evidence that the property was acquired as a gift or by inheritance, etc.

For example, if a party purchased a car during marriage using separate property inheritance funds, documents that would be necessary to trace that party’s separate property claim would include (a) documents showing the identification and receipt of inheritance funds into that party’s bank account; (b) documents showing the purchase of the car; and (c) documents showing funds coming out of the bank account holding the inheritance funds and being used to purchase the car.

Some property may be a mixture of community property and separate property. For example, a party may own a 401k retirement account at the time of marriage and upon marriage, continued to make contributions to the 401k retirement account. In order to trace and prove a party’s separate property claim in such 401k account, they will need to obtain (a) a statement or other documentation that reflects the balance in the account at time of marriage; and (b) statements or other documentation reflecting all activity in the account since date of marriage.

Forensic Accountants are frequently hired by parties to perform tracing of separate property claims. Other experts such as appraisers and business valuators are hired frequently to value real property, businesses and other community property assets. Family law paralegals work closely with forensic accountants and other expert to obtain and provide documents and information needed by the experts to accomplish their tasks.

The date of separation is an essential factor in determining community and separate property interests. If the parties cannot agree on the date of separation, the issue may be bifurcated and a trial conducted separately by the court. Because facts, especially extremely personal and intimate facts, are at the heart of a date of separation trial, many parties will forego such a trial and stipulate to a compromise date or reach an overall settlement agreement without agreeing to a specific date.

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Property Rights in Equitable Distribution or Marital Property States Marital Property The accumulation of property and income acquired during the marriage. Marital property includes pensions and retirement investments acquired or earned during marriage and any appreciation or equity in property during marriage. The distribution of Marital Property by a court in a divorce action in Equitable Distribution states is designed to produce a fair but not necessarily equal division of the property.

Non-Marital Property Property of a spouse that is not marital property and is not subject to division between the parties. Examples of non-marital property are (a) property acquired by a spouse prior to marriage; (b) property acquired by a spouse during marriage as a gift or by inheritance; (c) personal injury proceeds; (d) or assets excluded by a valid Premarital Agreement.

There is also a general presumption that all property acquired during marriage is marital property unless proven otherwise. The burden of proving property is a party’s non-marital property is on the party contesting the marital property presumption. This is done by presenting evidence such as tracing the asset to a non-marital property source or providing evidence that the property was acquired as a gift or by inheritance, etc. In marital property states, the documents needed to trace a party’s non-marital claims are similar to the documents needed to trace separate property claims in community property states.

Commingling is a common issue that can make tracing difficult to do. An example of commingling is when non-marital inheritance funds are deposited into a joint account where marital property is routinely deposited and funds from that account are used to pay monthly living expenses.

Because income acquired during marriage is considered marital property, interest income on nonmarital property may be considered marital property. This can lead to commingling issues especially when a party did not transfer dividend and interest income earned on non-marital property out of her or her inheritance account into a totally separate account.

To deal with these sorts of issues, Forensic Accountants are also hired frequently by parties to perform tracing of non-marital property claims. Other experts such as appraisers and business valuators are also frequently hired to value real property, businesses, collections such as art, wine or jewelry, and other marital property assets. Family law paralegals work closely with forensic accountants and other experts to obtain and provide documents and information needed by the experts to accomplish their tasks.

Rules and Procedures Affecting Division of Certain Assets and Debts Transfers of property between spouses or former spouses incident to a divorce are not taxable events. (26 U.S. Code §1041) However, certain rules or procedures must be followed in dividing assets between parties to avoid inadvertently triggering a taxable event.

For example, the parties’ agreement provides for IRA account x1234 to be divided equally between them. However, IRA account x1234 is only in the name of one spouse. Under federal law, withdrawals or distributions from an IRA account may be subject to regular income tax or a

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10% early withdrawal penalty. To avoid triggering such tax or penalty, the other spouse needs to open an IRA account in his or her name so that one-half of assets of IRA account x1234 can be directly rolled into that new IRA account.

Because certain retirement accounts such as 401(k) or pensions are governed by the Employee Retirement Income Security Act of 1974 (ERISA), they can only be divided pursuant to a Qualified Domestic Relations Order (QDRO). The QDRO allows a spouse or former spouse to receive benefits from these types of retirement accounts as if he or she were an actual participant in the account. The preparation of a QDRO is complicated because it must conform to ERISA and be approved by the Plan Administrator of the 401k or pension retirement plan before it is submitted to the court for approval.

Transferring title to real property from one party to the other is done through the recording of grant deeds or quitclaim deeds. Paralegals may be asked to prepare the necessary deeds transferring title from one party to the other upon the conclusion of a proceeding. Great care must be taken when drafting deeds to ensure that the names and legal description on all deeds are accurate to avoid creating a cloud on the title to the property. A cloud on title to real property may hamper the owner’s ability to sell the property and cause the owner to incur additional fees to fix any inaccuracy impacting the title. Real Property is addressed in more detail in the Real Property chapter.

The value of furniture, furnishings, household goods and other tangible personal property may or may not represent the majority of a married couple’s net worth. Dividing such property can be intensely emotional, driving up legal fees and can impact negotiation of the final disposition of the assets. There are various methods that can be employed to help parties divide their personal property without judicial intervention. Besides mediation, other methods include “In Kind Division,” “Trade-Off Division,” “One Values, the Other Chooses,” etc.

Just as the marital assets are divided, all debts and obligations of the parties will also be divided.

Debts incurred prior to marriage and after date of separation will be assigned to the person who incurred the debt. All other debts incurred during marriage will be divided according to state law.

Fiduciary Duty Spouses have a fiduciary duty to each other and neither shall take any unfair advantage of the other.

As a result, states take a dim view of a party’s failure to provide a complete and accurate disclosure of their finances. Failure to do so could result in severe consequences, especially if the failure to disclose is intentional.

In Marriage of Rossi (2001), 90 Cal App. 4th 24)71, Wife contributed to an office lottery pool in November 1996 which won the jackpot of $6,680,000 in late December 1996. Wife’s share of the winnings was $1,336,000 to be paid in 20 equal annual installments. In January 1997, Wife filed for divorce and never told Husband about the lottery prize. She consulted with lottery officials about how to keep Husband from learning of the lottery prize and used her mother’s address to receive checks.

She failed to disclose the lottery prize in her financial disclosures and in the marital settlement agreement. This asset was not included in the Judgment which was entered in April 1997. Husband filed for bankruptcy in 1998. In May 1999, a letter was sent to Husband’s address asking if Wife would be interested in a lump sum buy-out of her lottery winnings. Husband brought motion and the 71

Marriage of Rossi (2001) 90 Cal.App.4th 34, a noted California case, is a prime example of those severe consequences in which the court awarded Husband 100% of lottery winnings intentionally and fraudulently concealed by Wife.

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trial court awarded 100% of the lottery winnings to Husband. Wife appealed but the trial court’s ruling was upheld by the Appellate Court.

At the commencement of a dissolution proceeding, some lawyers will routinely send their clients a letter outlining their fiduciary duty to their spouse under the law and the need for thorough and complete financial disclosures to be exchanged.

Domestic Violence The term “domestic violence” includes felony or misdemeanor crimes of violence committed by the following: •

a current or former spouse or intimate partner of the victim;

•

a person with whom the victim shares a child in common;

•

a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner;

•

a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies; or

•

any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.

States vary in their domestic violence provisions. Approximately 38 states place domestic violence definitions and penalties within the criminal code and nearly every state provides a definition within the domestic relations or social services code.

A Domestic Violence Restraining Order or Protective Order is an order that helps protect people from abuse or threats of abuse from someone with whom they have a close relationship. In California, once a court issues a DV Restraining Order, it is registered into a statewide computer system called “CLETS” to which all law enforcement officers have access. Such DV Restraining Order is enforceable anywhere in the United States.

Restraining Orders can be temporary or permanent. A Temporary Restraining Order lasts for a specific period of time, usually less than a month at which time a hearing is held to determine if the restraining order should be extended for a longer period of time. The court may issue what is known as a permanent restraining order, but these restraining orders usually only last up to five years.

Many cities and counties have domestic violence self-help centers, domestic abuse advocates, shelters or legal aid agencies that assist people seeking restraining orders at little to no cost.

Consolidated Omnibus Budget Reconciliation Act (COBRA) COBRA is a federal law that gives workers and their families the right to choose to continue group health benefits provided by their group health insurance plan for limited periods of time (18-36 months) under certain circumstances such as voluntary or involuntary loss of job, death, divorce or other life events (called “qualifying events”).

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A termination of marital status is considered a qualifying event and as such, a spouse who is covered under the other spouse’s group health insurance policy is entitled to elect COBRA continuation coverage for a period of 36 months provided certain steps are taken with a prescribed period of time following the termination of marriage.

When a judgment or decree is entered terminating the parties’ marital status, clients should be provided with all necessary information regarding their (or their former spouse’s) COBRA rights and responsibilities, including applicable deadlines, to avoid loss of health insurance coverage.

Fees The issue of who is responsible for paying attorney’s fees and costs in a divorce proceeding is complicated and governed by the laws of each state. Financial need, ability to pay and a party’s behavior are factors that will be considered by the court when determining if one party should be responsible for paying the other party’s attorney’s fees and costs.

The courts will frequently order need-based fees to level the playing field when the parties have a disparity in their access to and ability to pay for legal representation. This way both parties will have sufficient resources to adequately litigate or resolve their dissolution proceeding.

Same Sex Marriage On June 26, 2015, the U.S. Supreme Court declared marriage a fundamental right inherent in the liberty of the person. The Court further concluded, under the Fourteenth Amendment Due Process and Equal Protection Clauses, that same-sex couples may not be deprived of that fundamental right and that liberty.

Accordingly, every state must license a marriage between two people of the same sex and recognize lawful same-sex marriages performed in other states. Obergefell v. Hodges (2015) 135 S.Ct. 2584, 2604, 2607; see also United States v. Windsor (2013) 570 US 744, 769-775, 133 S.Ct. 2575, 2693-2696 (striking down as unconstitutional that portion of the Defense of Marriage Act (DOMA) that prohibited federal recognition of same-sex married couples).

The procedure for obtaining a divorce for same sex couples is the same as it is for opposite sex couples and is governed by state law. As with opposite sex couples who are divorcing, there are issues that need to be resolved such as child custody and visitation, child support, spousal support, division of property, attorney’s fees and other issues related specifically to that marriage.

Some issues facing divorcing same sex couples may be more complicated than for divorcing opposite sex couples. Factors affecting spousal support and property division, such as what is the length of marriage and when did the marital estate begin, are not as clear cut. Same sex couples may have lived together for many years prior to marriage and signed up as a Domestic Partnership because same sex marriage wasn’t available to them yet.

Custody and visitation and child support issues may also be more complicated when one parent does not have equal rights or any rights with respect to custody and visitation. For example, both parents may have equally raised their minor children but the non-biological parent may not have formally adopted their children. If the divorce is contentious, this may hinder the court’s ability to ensure the child has continuous and frequent contact with both parents and order child support.

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Adoption Adoptions are set by state statute. Adoptions are generally heard in the Domestic Relations court. There are several types of adoption: Agency Adoption This occurs when a person adopts a child from a state social agency organization or other licensed agency. The agency supervises the care of the biological mothers who are willing to give up their children and assists in the placement of children after birth. Agencies screen adoptive parents before the adoption proceeds.

Private Adoption This occurs when people seeking to adopt a child contact an attorney specializing in adoption to assist with the adoption. The attorney may work with physicians who are aware of women willing to give up children for adoption or parents may place ads seeking such women. In most states, adoptive parents are allowed to pay a biological mother’s medical expense and certain other costs during pregnancy. However, it is against the law in every state to pay a biological mother to give up a child.

Open Adoption/Closed Adoption In an open adoption, the biological parent(s) selects the adoptive parent(s). Some jurisdictions permit the parents in an open adoption to maintain visitation and contact rights. In a closed adoption, a state social agency organization or other licensed agency selects the adoptive parents and the biological parent(s) relinquish all parental rights to the child.

Step-Parent Adoption Step-parent adoptions involve the adoption of a spouse’s child from another relationship. The process is usually much quicker than a non-family member adoption. However, unless the other birth parent’s parental rights have already been terminated, the other birth parent’s consent to terminate their parental rights must be obtained in a step-parent adoption.

All adoptions must be approved by the court. There may be a probation period in which social workers will visit the home to determine if the child’s best interests are being met by the adoptive parents. The probation period varies from each state and can be anywhere from six (6) months to a year. At the end of the probation period, a Decree or Order of Adoption is entered and a new birth certificate is issued.

Prenuptial and Postnuptial Agreements A Premarital Agreement or Prenuptial Agreement is a written contract entered into between parties before they are married. The premarital agreement describes what each party’s support and property rights will be if they divorce or when one of them dies.

Sometimes persons intending to marry use a Premarital Agreement or Prenuptial Agreement as a way of clarifying their expectations and rights for the future. Common reasons for parties to enter into a premarital agreement are: •

defining each party’s wishes for property owned prior to marriage.

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•

avoiding the uncertainties about how the court may divide the parties’ property and/or decide the issue of spousal support if the marriage fails.

•

avoiding the risk of a major loss of assets, income or a family owned business in the event of a divorce.

•

making sure that a majority of assets or personal belongings are passed on to children or grandchildren of prior marriages for parties who are marrying for a second or third time.

The premarital agreement must be in writing and must be entered into prior to the date of the wedding in most jurisdictions. Full disclosures of all assets must be made by both parties for the agreement to be valid.

A Post Marital or Postnuptial Agreement is a written contract entered into between parties after they are married. Similar to a premarital agreement, a Post Marital Agreement or Postnuptial Agreement describes what each party’s support and property rights will be if they divorce or when one of them dies.

Often parties are unable to enter a premarital agreement prior to marriage so they wait until after the wedding to enter into a post marital agreement. Other common reasons for parties to enter into a post marital agreement are: •

protecting newly inherited separate property.

•

protecting one spouse from the liability of another spouse’s debt.

•

providing financial resources in the event of a divorce for a spouse who stopped working to care for the parties’ minor children.

As with premarital agreements, full disclosures of all assets must be made by both parties for the agreement to be valid. Post marital agreement must be in writing, be fair and entered into voluntarily and intentionally. A post marital agreement will be considered invalid if one spouse is coerced or threatened into signing the agreement or the agreement is unfair and clearly only benefits one party.

Paternity or Parentage Action A Paternity Action or Parentage Action is an action brought to determine parentage of a child born when the parents are not married. There is a presumption of paternity for a child born to couples during a marriage.

The Uniform Parentage Act (UPA) is uniform statutory scheme for determining a child’s legal parentage by a judicial or administrative proceeding or signing of a valid acknowledgement of parentage. The UPA was first promulgated in 1973 by the National Conferences of Commissioners of Uniform State Laws. All states adopted the UPA in 1973. The UPA has since been updated several times to reflect changes in law, practice and technology and to incorporate provisions for genetic testing, surrogacy and children born to same-sex couples. Most states have not adopted the updated versions of UPA. An action to establish a parent-child relationship, custody and visitation or child support may be heard in the Domestic Relations court or in another civil court, depending on the venue. In some states, the government or local child support agency will initiate paternity proceedings if the mother is receiving financial assistance from the state. Fathers may also bring a paternity action to establish custody and visitation rights.

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Alternative Dispute Resolution (ADR) Use of an Alternative Dispute Resolution (ADR) method is perfect for family law matters. ADR can save the clients fees and costs and help to facilitate meaningful discussion between the parties if they reached an impasse on settlement. It may be faster to have a single issue or the entire matter heard through ADR than waiting to get on the court’s calendar to have the matter heard.

One method of ADR is Mediation which is one of the most common ways for the parties to reach an amicable resolution of their differences. Mediation is a form of negotiation in which a neutral third party assists the parties in reaching a settlement of their issues. The mediator will not make a decision about the issues, but helps the parties find a resolution to their dispute. The parties can ask the mediator for help on issues related to property division, support, child custody and visitation and other issues related to the dissolution process, keeping in mind that the mediator must remain neutral and does not represent the interest of either party. The parties may also consult their own independent attorney throughout the mediation process.

Generally, mediation can be a cost-effective way for the parties to settle their differences. If mediation is successful, the agreement reached in mediation will be formalized in the Marital Settlement Agreement and entered with the court. The parties’ independent attorneys will complete all the necessary paperwork to have the Marital Settlement Agreement and other documents necessary to terminate the marriage completed and processed. If mediation is not successful, one of the parties can initiate litigation and proceed to trial.

Mediation can be court-ordered or it can be private. Court-ordered mediation is usually ordered when the parties cannot reach an agreement relating to custody and visitation of the minor child(ren). The parties may meet with someone connected to the court or with a court-appointed mediator to discuss and resolve the custody and visitation issues. If a settlement is reached, an agreement is prepared and entered with the court. If a settlement is not reached, the mediator will prepare a report and present it to the judge.

Depending on the jurisdiction, some courts will follow the recommendations made by the mediator; other courts will not but merely review the mediator’s report for additional information to supplement the pleadings presented by the parties. Fees for use of court-appointed mediation may either be free, low cost or sliding scale, depending on the financial means of the parents.

Another form of ADR used in Family Law is Collaborative Law. This is a process that enables parties to work with their lawyers and other professionals to negotiate a resolution of all issues relating to their divorce without threat of litigation. In collaborative law, the parties and counsel share and exchange of information and documents in an informal and cooperative manner. Both parties must be able to trust each other in order for collaborative law to work. The parties hire attorneys who understand that the goal is to facilitate and reach a settlement in a peaceful and cooperative manner.

In collaborative law, if settlement is not reached or this method is not successful, the parties must retain new attorneys to litigate the matter. Collaborative law is an inexpensive way of negotiating and settling issues of property division, support and custody.

Any use of an alternative to litigation is a benefit to the client. Usually, fees and costs are reduced because the focus is on resolving issues rather than on fault. Further, the parties remain in control of the decision making process rather ceding it to the court.

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Sample Questions Q:

How is your spouse’s mother related to you?

A. consanguinity B. affinity C. collateral D. law

A:

(B.) is correct. Your spouse’s mother is only related to you by affinity, defined as “relationship by marriage.”

Q:

The court has misplaced the parties’ Judgment of Dissolution and failed to enter it. In the meantime, Joe has remarried thinking that Mary had the judgment entered. What is Joe’s current marriage considered?

A. voidable B. void C. dissolved D. equitable

A:

(A.) is correct. Joe’s current marriage is voidable, based on a prior existing marriage. Answer A is correct because there is a legal defect at the time the current marriage was entered into. The court can easily enter the judgment of dissolution retroactively using a process known as nunc pro tunc, because through the court’s error or mistake, it failed to enter the judgment of dissolution.

Q:

Which couples does spousal privilege extend to?

A. couples living together B. couples cohabiting C. couples legally married D. couples common law married

A:

Q:

(C.) is correct. The law is clear that spousal privilege extends only to couples who are legally married. That, of course, does not include simply living together, or cohabiting; common law also does not apply.

Before marriage, a stock certificate for 100 shares of stock of a private company is distributed to Mary from her grandfather’s estate after he died. After 5 years of marriage, Mary and her husband Joe decide to divorce and divide their property between themselves. What would Mary’s stock certificate for 100 shares of stock be considered?

A. non-marital property B. community property C. equitable property D. transmuted property

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A:

(A.) is correct. The stock certificate for 100 shares of stock is inherited property that was acquired before marriage and is therefore, considered non-marital property, not subject to division, provided Mary presents sufficient evidence proving the stock certificate was acquired before marriage or sufficient evidence tracing the stock to her grandfather’s estate.

Q:

In equitable distribution states, how must the parties’ marital property be divided in a divorce proceeding?

A. uniformly B. equally C. collaboratively D. fairly

A:

(D.) is correct. Marital property of divorcing couples residing in an equitable distribution state is to be divided fairly and in an equitable way but not necessarily equally. Various factors are considered in determining a fair and equitable division of marital assets including financial condition and earning power of each spouse, fraudulent behavior by a spouse, etc.

Q:

Under UCCJEA, when can a court in one state issue an order in an ongoing divorce proceeding in another state that has jurisdiction over the parties?

A. the issue of child custody is hotly contested B. an emergency order is needed to obtain past due child support C. an emergency order is needed to protect a minor child from abuse D. an emergency order is needed for a parent and minor child to move to another state to care for an ill relative

A:

(C.) is correct. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) establishes enforcement provisions for child custody orders across state and international lines to ensure the safety of the parties and their children. Under UCCJEA, a court in another state may issue a temporary emergency order if it is necessary to provide immediate protection of a child, the child’s siblings or the parent of the child if they were subjected to abuse or threatened with abuse.

In this event, the courts in both states are mandated to communicate with each other to resolve the emergency and protect the parties and child.

Q:

Which of the following makes a post marital agreement invalid?

A. agreement is signed prior to divorce B. agreement is not signed voluntarily and intentionally C. agreement is fair D. agreement contains a full disclosure of assets and debts

A:

(B.) is correct. In order for a post marital agreement to be valid, it must be in writing, be fair and entered into voluntarily and intentionally. If one spouse was coerced or threatened into signing a post marital agreement, it will be considered invalid.

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Domain 02: Substantive Areas of Law REAL ESTATE

Although real estate law is state specific and the laws and procedures vary from state to state, it is useful to be familiar with some basic concepts that are generally applicable throughout the United States. Real Property law requires knowledge of a wide array of subjects including, but not limited to, estate, physical elements and rights, easements, conveyance, contracts, mortgages, surveys title insurance, regulation, land use and environment.

Real Estate Concepts70 Property is a broad term, encompassing everything subject to ownership. The definition of property is: anything owned by a person or entity; everything subject to ownership; the right to possess, use, and enjoy a determinate thing (either a tract of land or a chattel); the right of ownership; any external thing over which the rights of possession, use and enjoyment are exercised.

Some common terms that make up property law71: •

Tangible property is property that has a physical substance – something you can see, hear, taste, smell, or touch such as a desk, a boat, or a car.

•

Intangible property is property that represents a set of rights that have no physical existence but that do represent control or ownership of something of value. Checks, stock certificates and patents are examples of intangible property.

•

Real property is a type of tangible property comprised of land and all things affixed to it, such as homes, office buildings or shopping centers, as well as objects that are more or less permanently attached and would cause injury to the land if severed, such as a tree or well.

•

Personal property is also tangible property that includes everything that is not considered real property, the basic characteristic of which is movability. Personal property is also referred to as goods or chattel, and may include living objects such as animals or inanimate objects like a suitcase. Personal property has unique rules and regulations, which govern the ownership of the property, ability to sell the property, and ability to pledge property for a debt.

A fixture is an object that at one time was personal property but that, through permanent attachment to real property, become part of the real property. Examples include as a sink installed in the kitchen and customized, built-in wall units installed in a den. Further, trade fixtures is the term used to describe shelving, counters, and other decorative items installed on a property by a tenant in order to conduct their business. One example would be sinks and mirrors for a hair salon.

There are a number of judicial tests to determine if an article is a fixture, but the more permanent the attachment or annexation, the more likely a court will determine that the item is a fixture.

70 71

Black’s Law Dictionary Essentials of Practical Real Estate, 6th Edition, Hinkel, Daniel F.

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Common Physical Characteristics of Real Property AirsPACE® – public domain airsPACE® occurring at certain elevations above the surface of the earth; an owner of real property retains ownership of private airsPACE® above the surface of the land.

Mineral Rights – law general allows the ownership of real property to be divided horizontally; or the surface may be divided and separate from the ownership of the minerals beneath the surface.

Water Rights – the source of water governs, for the most part, a property owner’s rights to own and use the water. Categories of water rights include groundwater – an underground stream or spring; surface water – rainwater that accumulates on the soil; and water from a river, stream or lake.

Types of Estates The type of estate answers the question, “What type of interest in the land is being claimed?” Modern Day estates include: •

Fee Simple/Fee Simple Absolute – Estate of real property with infinite duration and no restrictions on use.

•

Fee Simple Determinable – Estate of real property with potential infinite duration. The ownership of a fee simple determinable is subject to a condition, the breach of which can result in termination of the estate. A fee simple determinable automatically expires on the nonoccurrence or occurrence of a condition.

•

Fee simple on Condition Subsequent – Estate of real property with potential infinite duration.

The ownership of a fee simple on condition subsequent is subject to a condition, the breach of which can result in termination of the estate. A fee simple on condition continues in existence until an action is brought to recover the property.

•

Life Estate – Estate of real property the duration of which is measured by the life or lives of one or more persons.

•

Estate for Years – Estate of real property the duration of which is for a definite period.

•

Estate at Will – Estate of real property the duration of which is for an indefinite period. An estate at will can be terminated at the will of the parties. This concept is similar to a lease.

Waste is an action or nonaction that causes a loss of value to real property, leading to the termination of a life estate.

Closing The term closing refers to the process of exchanging documents and transferring monies to complete a real estate transaction. It is often the paralegal’s job to maintain control over the transaction by drafting and organizing correspondence and closing documents, ordering surveys, keeping tabs on incoming inspection reports, information requests, expense receipts and other documentation from third parties, all the while keeping track of deadlines in the contract for sale and purchase, the loan commitment and other relevant documents and their due dates.

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Opening and Managing a Real Estate File •

The key to organization of a real estate file is attention to detail. The use of a closing checklist puts information that is important and referred to repeatedly at ready access.

The worksheet itemizes the tasks to be done, specifies the party responsible for each task, sets due dates and indicates the party to be charged.

•

Each closing document should have its own folder to make retrieval easier, especially when the file expands.

•

Set up a tickler system to keep track of all deadlines. The contract for sale and purchase should be the starting point since it usually contains the due dates and party responsible for preparing various documents.

•

Verify the correct spelling of the names of all parties.

•

Obtain a full legal description of the property from the seller’s deed, current title policy or survey.

Pre-Closing •

A client seeking institutional financing will make a loan application and provide the prospective lender with all pertinent financial records. If accepted, a loan commitment will be issued that will be valid for a specified period of time. The closing should take place within that timeframe. The commitment sets forth the terms that must be complied with to the lender’s satisfaction prior to the closing of the loan. If the closing does not take place during that time frame, the purchaser will need to reapply for the loan.

•

The seller must provide the purchaser with an updated abstract of title or title commitment. Any defects in title indicated by these documents must be cured by the seller.

•

If the seller has an outstanding loan encumbering the property, a mortgage estoppel letter must be obtained from the seller’s lender providing the payoff amount.

•

The seller must provide the most recent real estate tax bill; each party’s share of the taxes will be apportioned at the closing.

•

The contract for sale and purchase will outline the inspections that need to be performed prior to closing and which party will pay for the inspection. If an inspection report reveals a problem, the contract should be reviewed to determine the seller’s responsibility to cure the problem.

•

Lenders will have specific requirements for hazard and flood insurance to be effective on the date of closing. A certificate of insurance specifying the amount of the insurance, the type of coverage and the dates of coverage should be obtained.

•

Schedule a final walk-through of the premises for the purchaser prior to closing so that the seller can attempt to correct any problems before the closing.

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•

Most contracts for sale and purchase require that the purchaser pay the balance of funds required to close by cashier’s check or wire transfer. The closing statement should be prepared in advance of the closing so that the purchaser is aware of his/her total costs and can make arrangements to obtain the cashier’s check or arrange the wire transfer.

•

Confirm the date of closing with all parties, the real estate broker(s), and the lending institution.

Document Preparation •

In most states, it is customary for the seller’s attorney to prepare the majority of the closing documents, particularly those necessary for transferring marketable title.

•

The contract for sale and purchase will indicate the type of deed to be delivered by the seller at closing. If no type of deed is specified, state law in most states indicates that a general warranty deed be used. State statutes should be checked to determine the requirements for a valid deed in a particular state.

•

The seller’s affidavit is a sworn statement signed by the seller stating that there are no existing liens on the property that would encumber the purchaser’s title.

•

If the seller(s) is/are married, a continuous marriage affidavit should be prepared. This is a sworn statement verifying the marital status of the sellers.

•

The seller may also prepare a non-foreign certification, which is a statement certifying that the seller is not a “foreign person” (a/k/a nonresident alien) as that term is defined in Section 1445 of the Internal Revenue Code, and that monies need not be withheld from the sale for tax purposes.

•

If the seller has an outstanding loan to be paid off, a satisfaction and release of mortgage, to be signed by the seller’s lender, should be prepared.

•

The type of closing statement to be prepared will depend on the type of closing. Most residential transactions require that a HUD-1 Uniform Settlement Statement be used.

Closing Costs •

Common closing costs to be paid by a purchaser include: o

Loan fees (e.g., discount points, loan origination fees);

o

Attorneys’ fees;

o

Hazard and flood insurance (new);

o

Title commitment;

o

Title insurance: owner’s policy, mortgagee’s policy;

o

Termite inspection;

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•

•

o

Roof inspection;

o

Survey;

o

Recording of financing instruments;

o

Recording of deed;

o

Documentary stamps on financing instruments; and

o

Intangible tax on new financing.

Common closing costs to be paid by a seller include: o

Attorneys’ fees;

o

Recording of satisfaction of mortgage;

o

Documentary stamps on deed; and

o

Broker’s commission.

Prorated costs include: o

Hazard and flood insurance (assigned to purchaser);

o

Real property taxes;

o

Utilities;

o

Condo maintenance (if applicable);

o

Rent (if income-producing property); and

o

Interest on loan (if loan assumed by purchaser).

The HUD Uniform Settlement Statement •

Real Estate Settlement Procedures Act of 1974 (RESPA) was enacted to ensure that residential borrowers receive full disclosure of all charges they are to pay at closing. RESPA requires that a uniform settlement statement be utilized in all nonexempt closing transactions.

•

HUD-1 Uniform Settlement Statement gives a detailed account of all charges connected with a real estate transaction: the borrower’s debits and credits; the seller’s debits and credits; the closing costs charged to each party; items payable in connection with the loan; deposits for insurance and taxes; and government-related filing fees.

The purchaser, seller, and lender each receive a copy of the statement at closing. The purchaser and seller must each sign and date a copy of the settlement statement.

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The Actual Closing •

The paralegal should confirm the closing date, time and place with all parties in advance.

•

A notary should be available to notarize documents at closing.

•

If financing is involved in the transaction, this portion of the closing usually occurs first.

•

The closing agent will review each document with the parties prior to execution and make sure that each document is signed, witnessed and acknowledged (where applicable) in full before moving on to the next document.

•

Once all documents are executed, the closing agent will retrieve them so that the appropriate documents can be recorded.

•

The parties may have prepared separate checks for disbursement to cover the closing costs, or one cashier’s check from the purchaser may be made out to the closing agent to be deposited into the escrow account for disbursal by the closing agent. If anything but a cashier’s check, electronic transfer, or cash is provided by the purchaser, disbursement should not be made until the check has cleared.

•

The keys and other pertinent items (e.g., garage door opener, warranties for utilities) must be given to the purchaser.

Deeds A deed is a formal written instrument that conveys title to real property from one party to another. The deed serves as documentary evidence of the transfer, describes the quality of title transferred and any restrictions regarding the transfer of the property. Title is the ownership of real property or personal property, which stands against the right of anyone else to claim the property.

Legal Requirements of a Deed The basic requirements for a valid deed are that: •

It is a written instrument.

•

It is signed by a competent grantor. The grantor is the person or entity that transfers ownership of the real property. For an individual, competence means being of legal age and of sound mind. For an entity, competence means being in legal existence and having proper authorization to convey the property.

•

It includes the name of the grantee. The grantee is the person to whom the real property is to be conveyed and therefore, does not sign the deed.

•

The date of execution appears either in the opening paragraph or near the signature.

•

It includes a recital of consideration. In most cases, a recital of nominal consideration, e.g., $10, is sufficient.

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•

It includes words of conveyance by which the grantor expresses his/her intention to make a present conveyance of title to the property to the grantee.

•

It includes an accurate description of the real property to be transferred.

•

It is witnessed and acknowledged, if required by state statute.

•

It is physically delivered by the grantor to the grantee.

Deed Clauses •

The premises clause, which is the opening paragraph of a deed, sets forth the date of execution, the parties to the deed and in states that so require, the addresses of the grantor and grantee.

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The granting clause contains the words of conveyance expressing the grantor’s intention to transfer the property. This clause also includes the recital of consideration and description of the property to be conveyed.

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The encumbrance clause sets forth any encumbrances on the real property conveyed, such as mortgages, leases, liens, easements or restrictions.

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The reddendum clause (or the reserving clause) reserves some right in the real property for the grantor or imposes a restriction on the use of the property by the grantee.

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The habendum clause describes the type of estate being conveyed to the grantee(s). In most instances, the estate conveyed is a fee simple estate.

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The tenendum clause indicates the improvements that are being conveyed together with the land, such as the buildings built on the land.

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The warranty clause (or seisen – a feudal term still used today in some conveyances to mean having both possession and title of real property) is where the grantor warrants that he/she is the rightful owner of the property and has the right and power to convey the property to the grantee. To be “seized” of real property means to own or have legal and equitable title to real property. This clause is typical in general warranty deeds and special warranty deeds.

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The testimonium clause is the final clause in which the deed is executed, witnessed and acknowledged.

Common Types of Deeds •

A general warranty deed is a type of deed by which the grantor states that he/she has valid title and will defend that title against any defect arising from the actions of the grantor or those of the grantor’s predecessors. A general warranty deed provides the greatest degree of protection for the grantee.

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A special warranty deed is a deed by which the grantor, in conveying title to real property, only warrants that he/she has done nothing to encumber the property, but does not provide further assurances with regard to the grantor’s predecessors.

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A bargain and sale deed is a deed that transfers the real property itself rather than transferring any particular interest in the property.

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A quitclaim deed is a deed in which the grantor transfers whatever interest he/she may have without making any warranties regarding the quality of the title.

Special Purpose Deeds •

If the deed used to transfer title from seller to buyer is later found to contain an error in the spelling of a name, in the marital status of a party, in the legal description or in the omission of a restriction, a corrective deed must be prepared, signed and recorded.

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If the grantor of real property is not a private individual or corporation, but rather is a city, county or state, the conveyance must be approved by the appropriate legislative body which must, in turn, confer authority upon an official to act on behalf of the city, county, or state. A deed conveying government-owned property must recite the date and number of the bill approving the conveyance, must be signed by the official authorized to act on behalf of the state and by the governor and must be attested to by the secretary of state (if state-owned property).

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If a grantor is not able to sign a deed because the grantor is under age, does not have the legal mental capacity because the grantor has been adjudicated incompetent or if the grantor is deceased, a fiduciary is given the authority to sign the deed on the grantor’s behalf. A fiduciary deed is a special warranty deed signed by the fiduciary that guarantees that he/she did nothing to encumber the property but makes no guarantees to defend the title against liens, claims or defects arising from the actions of others.

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A personal representative is a person or entity who administers the estate of a deceased person. A decedent may have left explicit instructions in a will about how he/she would like to dispose of his/her personal property, in which case the probate court would authorize the personal representative to make the conveyance through a personal representative’s deed.

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A minor may own real property, but would not be competent to convey real property as a grantor. When a guardian sells real property on behalf of a minor, full disclosure must be made in the guardian’s deed regarding the actual consideration paid for the property. In most states, the minor, through his/her guardian, must petition the court for permission to sell the property, in which case the court would oversee the transaction.

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When real property is foreclosed upon, statutorily prescribed procedures are followed to convey title to the real property. In most states, a court enters judgment on behalf of the creditor (e.g., the lender in a mortgage foreclosure) and directs a sheriff or court-appointed referee to oversee the public auction of the real property after which the real property is conveyed to the highest bidder by a sheriff’s deed (or referee’s deed), which is similar to a special warranty deed.

Recording Deeds and Other Real Estate Documents The purpose of recording a deed is to put the public on notice regarding the contents of the deed, including the identification of the current owner of the real property, the legal description of the property and the encumbrances on the property. This notice is referred to as constructive notice, meaning that the information recorded has been made available to anyone who searches the public

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records. Actual notice refers to direct knowledge a person has about the ownership and condition of title of real property.

Each state has recording statutes that prescribe the requirements for recording a document and that determine the priority of rights to real property if there are conflicting claims. The three types of recording statutes are: •

In a state with a race statute, priority of claim to title of the property is determined, literally, by a race to the recording office. The first person to record his/her deed is deemed to have superior title.

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In a state with a notice statute, the notice a subsequent purchaser has of a previous purchaser’s deed is imperative in determining the priority of title to the real property.

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In a state with a race-notice statute, the premise is to protect a bona fide purchaser for value without notice if he/she is the first to record the deed. If a subsequent purchaser has no notice of a prior purchaser’s claim and is the first to record his/her deed, the subsequent purchaser has priority.

Easements and Covenants Restrictive covenants are private restrictions imposed on the use of private property which may take the form of subdivision regulations, restrictions imposed by a developer, a condominium, homeowners’ association or deed restrictions, which are restrictive covenants contained in the deed transferring the property from seller to buyer. In each of these situations, the restrictions upon which title to the property is taken are recorded in the public records.

An easement is the enforceable right to use the real property of another for a particular purpose. Because an easement is considered an encumbrance on the real property on which it is located, it can be considered a nonexclusive limitation of the property owner’s full use and enjoyment of his/her property.

Types of easements include: •

Easement in gross is an easement given to benefit a particular individual or entity rather than one given to confer a benefit to real property. The most common are commercial in nature, such as those granted to utility or cable companies.

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Appurtenant easement is an easement given to confer a benefit to adjacent real property.

Typically, this easement is created to permit ingress and egress to landlocked property.

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A party wall easement is an easement on the part of a shared partition wall between two properties.

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A prescriptive easement, sometimes referred to as an easement by prescription, is created when a person adversely uses the property of another for a statutorily specified time period.

Acquiring a prescriptive easement is similar to adverse possession -- the use must be continuous, uninterrupted, hostile, open and notorious.

Sometimes easements are granted to permit an encroachment on the property. An encroachment is an illegal intrusion of a building or appurtenance onto the property of another.

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Financing, Mortgages, Promissory Notes, Foreclosure Financing •

A conventional loan is a loan made by a private lender in which the lender usually does not have any insurance or guarantee from a third party, such as a government agency backing the loan should the borrower fail to meet his/her loan obligations.

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The expression of the mortgage amount as a percentage of the appraised value is known as the loan-to-value ratio. The loan-to-value ratio of conventional loans is generally lower than that of FHA (Federal Housing Administration) and VA (Veterans Administration) loans. In order to make conventional loans more competitive, however, the Mortgage Guaranty Insurance Corporation, in 1951, introduced the concept of private mortgage insurance (PMI). The purpose of PMI is to insure the portion of the loan that exceeds the typical, conventional loan-to-value ratio.

Conventional lenders usually charge a loan origination fee to process the loan application, normally 1% of the loan amount. They may also charge points (sometimes referred to as discount points). Each point is equal to 1% of the loan amount.

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An FHA loan is a loan secured by the Federal Housing Administration (FHA). The FHA does not make the loan itself; rather, it insures loans made by approved lenders. The FHA insures loans for owner-occupied, one-to-four bedroom family dwellings.

The FHA sets maximum loan amounts which vary from area to area. The FHA also regulates the minimum down payment to be made by the borrower. FHA loans may be written for a term of up to 30 years. Interest rates are set by the lender, not the FHA. The FHA requires that borrowers pay mortgage insurance premiums, which are collected into the FHA’s Mutual Mortgage Insurance Fund. The FHA uses this fund to insure lenders against bad loans.

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A VA loan is a loan made to veterans by approved lenders for a residential, owner-occupied property and is guaranteed by the Veterans Administration. Unlike conventional or FHA loans, there is no requirement that an eligible veteran makes a down payment.

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An adjustable rate loan (ARM) is a loan in which the interest rate typically starts lower than that of a fixed rate loan and then periodically changes in relation to an index rate, such as the rate on Treasury securities.

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A wraparound loan is a loan that allows a borrower to pay off an existing loan to obtain additional financing from a second lender. The second lender provides the borrower with a new loan, charging a higher interest rate than the first lender. The second lender then assumes payment of the existing first mortgage loan.

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A graduated payment mortgage is a loan in which the borrower’s monthly payments during the first years of the loan term are reduced. The deferred portions of the payments are added onto the monthly payments made in later years.

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A shared appreciation mortgage is a loan in which the lender lends money at a lower interest rate in return for a share in the appreciated value of the real property when the property is sold.

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A growing equity mortgage is a loan in which the borrower quickly increases his/her equity in the real property by increasing the amount of the monthly payments by a certain percentage each year according to a schedule. This increase is applied to the principal in order to pay off the loan by an earlier maturity date than would be applicable in a standard loan.

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A reverse annuity mortgage is a situation in which a real property owner who has 100% equity in his/her home borrows against that equity and receives monthly payments from the lender over a period of years. Upon the owner’s death, the property is sold, and the loan is repaid from the proceeds.

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A buy-down is not a type of loan. Rather, it is a financing arrangement whereby the seller will “buy down” the interest rate of the borrower’s loan for a certain period of time.

Mortgages and Deeds of Trust Some states utilize mortgages as their primary security device, while others utilize deeds of trust.

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A mortgage is a two-party instrument. The parties to a mortgage are the mortgagor (the borrower) and the mortgagee (the lender).

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A deed of trust is a three-party instrument. The three parties to the instrument are: 1) the trustor (the borrower); 2) the beneficiary (the lender); and 3) the trustee (an escrow or a title/trust company).

Real estate paralegals are often asked to prepare initial drafts of mortgages and deeds of trust. The basic information that should be compiled to draft these instruments can include: •

Date

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Parties o

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If deed of trust: ▪

Trustor

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Trustee

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Beneficiary

If mortgage: ▪

Mortgagor

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Mortgagee

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•

Social security number of trustor/mortgagor

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Legal description of the real property

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Description of all personal property serving as additional collateral

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Description of the loan debt terms (this information can be taken from the Note)

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Agreement by trustor/mortgagor to pay debt on the above terms

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Tax clause

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Maintenance clause

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Inspection clause

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Assignments of rents clause, if applicable

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Receivership clause, if applicable

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Duties of trustor/mortgagor

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Due-on-sale clause, if applicable

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Rights of parties in event of default

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Signature of trustor/mortgagor

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Signatures of witnesses

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Notarization

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Name and address of preparer of the instrument

Promissory Notes A promissory note is a document evidencing a promise to pay a specified amount over a specified period of time. The parties to the note are the borrower, referred to as the maker; and the lender, referred to as the payee. A promissory note is signed only by the maker and usually is not witnessed, notarized or recorded.

Real estate paralegals are often asked to draft promissory notes. The information that should be compiled to draft the promissory note includes: •

Date of the loan;

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City and state in which note is made;

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Parties;

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Name of maker;

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Name of payee;

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Name of guarantor(s), if any;

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Amount of loan;

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Interest rate, fixed or adjustable;

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Adjustment period;

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Periodic cap;

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Overall cap;

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Index to which interest rate is tied;

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Total amount of payments;

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Maturity date;

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Amount of each payment and what is included in each payment;

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Principal;

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Interest;

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Taxes;

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Insurance;

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When payments are to be made;

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Where payments are to be made;

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Late charges, if any;

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Security for note;

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Prepayment privileges or penalties;

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Parties’ rights in event of default;

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Waiver of homestead or other debtor’s rights; and

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Signature lines for maker and guarantor.

Foreclosure Foreclosure is the legal procedure by which real property is sold to repay a debt to a creditor who has a lien on the real property. The types of foreclosure methods applicable in a given situation generally

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depend on whether the state in which the real property is located is a state that uses deeds of trust or one that uses mortgages as the primary security instrument.

Non-Judicial Foreclosure Deeds of trust are the primary security instruments in title theory states. The trustee has title rights to the real property and, therefore, under the power-of-sale clause contained in the deed of trust, is allowed to sell the real property in a non-judicial foreclosure.

Before initiating the non-judicial foreclosure process, the lender may be required, depending on state law, to send a letter to the borrower informing the borrower of the default and making demand for payment. If a demand letter is sent and the borrower fails to respond, the non-judicial foreclosure process can begin.

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A notice of default informing the borrower that he/she is in default, setting forth the amount and date of the default, the period within which to respond, and the consequences if he/she does not act within the prescribed period, is prepared. A notice of default is typically recorded in the recorder’s office in the county in which the property is located.

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Once a notice of default has been filed and a copy sent to the borrower, the redemption period begins. The redemption period is a statutorily prescribed period of time within which a borrower may prevent foreclosure by paying the amount(s) owed, plus interest and penalties, or by negotiating an agreement with the lender.

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If the borrower negotiates an agreement with the lender, or if the borrower has made all required payments prior to the filing and recording of a notice of default, the borrower will request that a notice of rescission be recorded, which notice will rescind the notice of default.

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If the borrower fails to negotiate an agreement with the lender or if the borrower’s default payment is not in dispute, the next step is the publication of a notice of trustee’s sale.

While publication requirements vary from state to state, publication is typically made in a newspaper of general circulation in the county in which the property is located, or it may be made in a newspaper that primarily carries legal notices.

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During the publication period of the notice of trustee’s sale, the borrower may attempt to prevent foreclosure by paying the entire outstanding balance, plus interest, penalties, costs and expenses, or by reaching a negotiated agreement with the lender. Alternatively, the borrower may forestall foreclosure by filing for bankruptcy.

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Should the borrower fail to avail him/herself of the alternatives listed above, the public auction and sale of the property will proceed. After the sale, the purchaser receives a trustee’s deed.

State statutes should be carefully reviewed since the rules governing the recording of a notice of trustee’s sale and the redemption period vary widely.

Judicial Foreclosure A judicial foreclosure is a court proceeding in which: 1) the court awards judgment against the borrower on the promissory note; and 2) all title rights in the secured real property held by the

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borrower are foreclosed and the property sold to pay the debt. Typically, mortgages are foreclosed through judicial foreclosure.

Prior to initiating a judicial foreclosure, the lender’s attorney usually sends a demand letter to the delinquent borrower specifying the nature and amount of the default, as well as the action required to cure the default. Should the borrower fail to meet the terms of the demand letter, a judicial foreclosure will be initiated.

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A complaint will be filed in the county in which the property is located. The borrower and all junior lienholders are named as defendants in the complaint.

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State statutes should be checked to determine if court rules require that a particular form of complaint be used in the action. A foreclosure complaint should include a count for foreclosure and a separate count for money damages.

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A notice of lis pendens should be filed at the same time the complaint is filed, putting third parties on notice that the real property is the subject of pending litigation. Service of process is carried out according to state civil procedures.

Landlord-Tenant A lease is a document that conveys a leasehold interest in real property which includes the right of possession, but not ownership, for a period of time in return for the payment of rent. Residential leases are governed not only by the common law of contracts, but also by state statutes; a number of states have also adopted the Uniform Residential Landlord and Tenant Act (URLTA). Paralegals working in the area of real estate law are often asked by their supervising attorneys to review or prepare residential leases. It is important, therefore, to understand the rights and duties of both lessor and lessee in a residential tenancy.

Rights and Duties of the Landlord Most states require that the landlord (the lessor) be held responsible for maintaining the premises in a habitable condition. A typical residential lease requires that a landlord: •

comply with the requirements of applicable building and housing codes;

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make all repairs and do whatever is necessary to put, and keep, the premises in a fit and habitable condition;

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keep all common areas in a clean and safe condition;

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maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, etc.; and

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supply running water and reasonable amounts of hot water at all times, as well as reasonable heat.

A lease may expand on the maintenance duties referenced above. A lessor, however, cannot negate his/her statutory responsibilities by including a lease provision whereby the lessee waives the right to a warranty of habitability.

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Should a lessor fail to maintain the leased premises in a habitable condition, most states allow the lessee legal recourse. Some states require that the lessee provide the lessor with written notice of the lessor’s material noncompliance and provide an opportunity to cure before terminating the lease. The lessee may be allowed to make the necessary repairs and then deduct the cost of the repairs against rent owed. Alternatively, the lessee may be allowed to remain in the premises but abate the rent.

Abatement of rent is a deduction from the rent owed for the diminishment in value of the premises caused by the lack of maintenance.

No state allows a lessor to evict a lessee without following some degree of due process of law, which typically requires that a lessor bring a suit for possession. Prior to evicting a lessee, a lessor must serve notice upon the lessee. Once proper notice has been served, the lessee files a complaint with the court requesting permission to evict the lessee and retake possession of the leased premises. The lessee is allowed to respond to the complaint; however, if the lessee fails to do so, a court may award judgment in favor of the lessor, which judgment will be executed by the sheriff or other courtappointed official.

Rights and Duties of the Tenant A tenant (the lessee) is responsible for more than the prompt payment of rent. State law imposes minimum duties on the conduct of lessees consistent with local health and safety codes. A lessee must, among other things: •

maintain the interior of the leased premises in a clean and safe condition;

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must use all appliances in a reasonable manner;

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although normal wear and tear is expected when one leases property, a lessee must not negligently or willfully destroy property or allow others invited onto the premises to do so; and

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conduct him/herself and require other persons on the premises with the tenant’s consent to conduct themselves in a manner that will not disturb the neighbor’s peaceful enjoyment of the premises.

Upon taking possession of a leased premises, a lessee is entitled to a covenant of quiet enjoyment of the premises. This covenant not only pertains to intrusions by third parties, but also pertains to unreasonable intrusions or harassment by a lessor.

Liens A lien is a claim against property that secures a debt incurred by the property owner. A lien acts as an encumbrance on property because it is an interest in property that diminishes the property’s value. A lien allows a lienholder to request a court order to force the sale of property to satisfy, or partially satisfy, the outstanding debt. Paralegals working in the area of real estate law may be asked to assist in the enforcement of a judgment or construction lien for a firm client, to draft a satisfaction of mortgage or writ of attachment or to file a notice of lis pendens.

Types of Liens •

A general lien is one that is not secured by any particular parcel of real property and, therefore, may affect all nonexempt property of a debtor. An example of a general lien is a 305

lien for federal estate taxes. If these taxes are not paid, the United States government may go after any nonexempt property of the decedent’s estate, as full or partial satisfaction of the debt.

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A specific lien is one that is secured by a particular parcel of real property. An example of a specific lien is a special assessment lien. The lienholder cannot go after other property of the debtor because the lien attaches to the real property itself and not to the debtor.

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Federal, state and local governments can attach liens to private property if a taxpayer fails to pay taxes in a timely manner. Federal tax liens attach to all property of the debtor, including property that may be exempt from judgment liens.

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If a default on a mortgage loan occurs, the promissory note permits the lender to proceed against the maker personally and all property, real or personal, owned by the mortgagee. The mortgage instrument is a specific lien (mortgage lien), attaching only to the particular real property that is purchased with the loan proceeds.

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A construction lien, often referred to as a mechanic’s lien, is a statutory lien. This lien allows certain persons and entities who provide labor or materials for the improvement of real property -- and who are not paid -- the statutory right to place a claim of lien on, and ultimately foreclose on, specific real property and any improvements thereon.

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A judgment is a final decree of a court resolving a dispute and determining the rights and obligations of the respective parties. A court can be asked to award a monetary judgment, which is an award of monies to a plaintiff if he/she wins the lawsuit, or a declaratory judgment, which is sought when the parties want a judicial decree on their status and rights with regard to a particular matter. o

A judgment award in and of itself is not the lien. For a judgment to become a lien and attach to real property, a certified copy of the judgment must be recorded in a judgment docket, register -- or, in some counties, the official records book -- in the county in which the real property is located. Once a judgment lien is recorded, it remains a lien against real property until the debt is paid or the statute of limitations expires.

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A dormant judgment can become legally effective again through revival or renewal.

The procedure of revival is derived from the common law writ of scire facia (from the Latin meaning, literally, “let them/him/us know”). States have different procedures for revival, including limitations on the duration of the renewed period and on how often a judgment can be revived. However, a revived judgment may lose its priority against competing claims.

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If the defendant pays the court award, plus any accrued interest, a satisfaction of judgment must be recorded to evidence the satisfaction of the debt and the removal of the encumbrance from the property.

Enforcement of a Judgment Lien To enforce a judgment lien, the plaintiff must have the court issue a writ of execution, which directs the sheriff to levy upon the property and sell it at a sheriff’s sale. The proceeds of the sale are used to pay the plaintiff the monies owed to him/her and to pay for the expenses incurred in the execution process. Any surplus from the sale is returned to the defendant.

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Lien Priority Typically, the priority of most liens (except real property tax liens) is established by date of recording under the principle of first in time, first in right. Priority becomes important in the case of foreclosure on the real property.

Attachment A writ of attachment prevents a party to a lawsuit from conveying title to property, real or personal, while the suit is pending. Prior to commencing a lawsuit, a plaintiff’s attorney will seek to determine if the defendant has any nonexempt assets. If none, the plaintiff may choose to reconsider bringing suit; for, even if the court awards judgment in the plaintiff’s favor, the plaintiff may never be able to collect on the judgment. If, however, the defendant owns sufficient nonexempt property, the plaintiff may seek a writ of attachment to ensure that the defendant does not transfer title to that property to someone else prior to the conclusion of the suit.

Lis Pendens Unlike a writ of attachment, a lis pendens (Latin for “litigation pending”) is a notice recorded when a lawsuit affects title to a particular parcel of real property. The notice is recorded in the public records in the county in which the property is located. A notice of lis pendens is not a lien. Its purpose is to put third parties on notice that the property is the subject matter of litigation. State statutes dictate the expiration date of the notice.

Ownership Types Title to real property may be held in the name of a single owner, or it may be held jointly by two or more persons in one of several types of joint or concurrent ownership. Each method of concurrent ownership confers different rights on the titleholders.

Individual Ownership An individual may hold title to property in his/her own name as a single owner. This method of ownership is termed ownership in severalty. The individual taking title in fee simple absolute has the right to use and ultimately dispose of the property in any manner he/she chooses, subject to law.

Additionally, the individual is personally responsible for all real property taxes, income taxes arising from any income produced by the property and any claims made against the property.

Concurrent Ownership Joint or concurrent ownership occurs when more than one individual holds title to the same property at the same time. The joint tenants are termed co-owners or co-tenants in the real property. The most common forms of concurrent ownership are: •

Tenancy in common is a form of concurrent ownership in which two or more persons have undivided interest in property, but does not confer the right of survivorship, which is the right of the co-owners to inherit a deceased co-owner’s share in the real property. Each co-owner’s share passes to his/her heirs or to beneficiaries designated in a will.

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Joint tenancy is a form of concurrent ownership in which two more persons have undivided interests in property, with right of survivorship. A characteristic of a joint tenancy is the

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presence of the four unities: 1) unity of possession; 2) unity of interest; 3) unity of time; and 4) unity of title.

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Tenancy by the entirety is a distinct form of concurrent ownership by husband and wife in which each spouse has an undivided interest and right of survivorship. This form of concurrent ownership is not recognized in all states. In some states that do recognize tenancy by the entirety, it will be presumed -- unless there is evidence to the contrary -- any time a conveyance is made to a husband and wife, even if the words do not appear on the deed, that it is a conveyance “as tenants by the entirety.” In a minority of states, the words “as tenants by the entirety” must appear on the deed.

Ownership by a Business Entity The manner in which title to real property is held by a business is determined by the laws governing the particular business structure. There are five basic business structures: Sole Proprietorships A sole proprietorship is an unincorporated business owned and operated by a single individual.

Any real property acquired by a sole proprietor is acquired in his/her own name since a sole proprietorship cannot be separated from the identity of its owner.

Partnerships •

A general partnership is the voluntary association of two or more individuals or entities, acting as co-owners of a business for profit. Although real property may be conveyed either in the partnership name or in the names of the individual partners, it is the partnership that holds title to real property, not the individual partners.

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A limited partnership is similar to a general partnership, requiring two or more individuals or entities to run a business based on the terms set forth in the partnership agreement. In a limited partnership, however, there must be one general partner and at least one limited partner. Conveyance to or from a limited partnership is by the limited partnership, not the individual partners.

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A joint venture is similar to a partnership, but is established to create a relationship between the parties only for a single transaction or business venture. A joint venture is not considered a separate legal entity in many states and, therefore, real property acquired by a joint venture is considered the real property of the parties, who hold title as tenants in common.

Corporations A corporation is a business structure that is a legal entity separate from the owners of the business and is created according to the dictates of statutes. A corporation does not exist until articles of incorporation are filed with the appropriate state authority. Because a corporation is a separate legal entity, title to real property of a corporation is held in the name of the corporation, not in the name of its shareholders.

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Limited Liability Companies A limited liability company encompasses the characteristics of a partnership as well as characteristics of a corporation. A limited liability comes into creation when articles of organization are filed with the appropriate state authority. A limited liability company is taxed as a partnership, at least at the federal tax level. A limited liability company acquires title to real property in the name of the company. See Domain 02: Substantive Areas of Law - Business Organizations and Corporate Law. Dower and Curtesy Dower is an old legal right that previously existed in a majority of states. It has still survived -- intact -- in a few states, but has been considerably altered in others. Dower is the provision the law makes for a widow to lay legal claim to an interest in her deceased husband’s real property.

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Until the death of a husband, a wife’s dower rights are inchoate, meaning they are contingent upon her outliving her husband and will vest only upon his death.

Curtesy is the provision the law makes for a widower to make a legal claim to an interest in his deceased wife’s property. A number of states have reduced the widower’s curtesy rights to an interest in a fractional share of the deceased wife’s property, similar to dower rights.

Community Property Under the community property law system, all property falls within one of two categories: Separate Property Separate property consists of: 1) all property acquired by a spouse prior to marriage; 2) all income from property acquired by a spouse prior to marriage, unless commingled in such a manner that it is difficult to separate it from community property; 3) property acquired solely through separate funds; and 4) all property acquired by gift, will or descent, unless the gift or will clearly indicates that the property is given to both husband and wife.

Community Property Community property is all property, both personal and real, acquired during marriage by either spouse and pertains only to marital relationships. Community property is owned equally by the spouses, regardless of each spouse’s contribution to the acquisition of the property or the manner in which title to the property is held.

Homestead Property Homestead property is defined as the primary dwelling house or residence of the head of household plus adjoining land. Although a person may own many properties, he/she may have only one domicile qualifying as homestead property. The concept of homestead property is important in three contexts: •

The probate laws pertaining to homestead property;

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The property tax exemption laws pertaining to homestead property; and

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•

The homestead right of protection against claims of creditors.

Regulations and Zoning (land use) Regulations •

Environmental Protection Laws. In 1969, Congress passed the National Environmental Policy Act (NEPA), which established the Environmental Protection Agency (EPA) for the purpose of creating environmental standards. The NEPA was followed by the passage of the Clean Air Act in 1970, which established national primary and secondary air quality standards -- the former for protection of public health and the latter for the protection of plant and animal life. In 1972, the Clean Water Act gave the United States Army Corps of Engineers control over dredge and fill activities.

The biggest advance in federal environmental legislation in the 1980s was brought about by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). This legislation imposes liability for hazardous waste cleanup of toxic sites, regardless of cost or degree of responsibility for the presence of hazardous waste on the property. CERCLA held: 1) the current owner or operator of a facility on the property; 2) the party that owned or operated a facility on the property when the hazardous wastes were dumped on the property; and 3) the party that selected the site or arranged disposal of hazardous waste were responsible for the cleanup of polluted property.

CERCLA was amended in 1986 by the Superfund Amendments and Reauthorization Act (SARA). In order to take advantage of this defense, the purchaser must be able to prove that proper inquiry was made into prior ownership of the property, as well as the usage.

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Fair Housing Laws. In addition to how a real property owner may use his/her property, federal and state governments also place certain restrictions on how he/she may dispose of real property. Although these laws may be interpreted as restrictive of an owner’s right to dispose of property freely, the legislative intent was, and continues to be, to make real property available to greater numbers by preventing discriminatory practices.

Title VIII of the Civil Rights Act of 1968, which is devoted to fair housing legislation, has come to be known as the Federal Fair Housing Act. 42 USC §§ 3601-3609. The Federal Fair Housing Act prohibits discrimination not only on the basis of race, but also on the basis of color, religion and national origin.

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Taxation. County and city governments are permitted to impose ad valorem taxes, which are taxes imposed on the value of the real property and any improvements thereon, on real property located within their jurisdiction as well as special assessments for shared improvements that enhance the value of real property, such as the installation of sewer lines or sidewalks.

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Eminent Domain. The greatest governmental intrusion on private property ownership is the governmental taking of private real property for public use. This is done under the power of eminent domain, granted to the federal government by the Fifth Amendment to the United States Constitution and applied to the states under the Fourteenth Amendment.

Eminent domain is the right of federal, state and local governments -- and certain public and quasi-public corporations and utilities, such as railroads and electric companies -- to take private property for public use. The process through which the private property is

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taken is called condemnation. Property may be taken by condemnation only after a legislative enactment for public use, payment of just compensation and due process.

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Escheat to the State. Perhaps the most encompassing power of the state, and sometimes local, government is the right of reversion of title to private property in their jurisdiction.

This right of reversion is exercised when a property owner dies intestate leaving no heirs.

In that circumstance, his/her real property will escheat to the state.

Zoning (Land Use) Federal, state, and local governments impose restrictions on the rights of owners of real property through the implementation of their police powers. Police powers are those powers given to the federal government and to the states by their constitutions to create laws necessary for the protection of public health, safety and welfare.

Zoning and land use planning are fundamental methods of government control over real estate development. Local governments are given the authority by state-enabling acts to formulate comprehensive plans that are subsequently implemented and enforced through local government zoning ordinances that control density of population as well as intensity of use, and help to stabilize and protect property values in a given area. Zoning ordinances divide land use into a number of classifications. These can include the following: •

Residential: permitting single-family or multifamily dwellings, or a combination of the two.

Residential zoning is designed to regulate population density by limiting the number of dwellings per acre.

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Commercial: permitting office buildings, shopping centers and other commercial development.

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Industrial: permitting factories and other industrial enterprises that bring employment opportunities into a particular locality.

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Agricultural: permitting crop production and animal farming.

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Public: permitting public facilities as such as post office buildings, libraries, etc.

Property owners desiring to deviate from strict compliance with all or part of a zoning ordinance may apply for a variance to the zoning board or other applicable board. In order to be granted a variance, a property owner typically must show that compliance with the ordinance will create an undue hardship that will either prevent the anticipated benefits to the property or prevent best usage of the property.

Rentals and Leases Residential Leases A lease is a contract and, as such, must meet the four basic criteria for a contract in order to be legally binding: 1) offer and acceptance; 2) consideration; 3) capacity to contract; and 4) a legal subject matter. Although the specifics of each lease will vary, most residential leases contain similar provisions, including:

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Names of the parties

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Use of the premises

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Description of the premises

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Lease term and renewal

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Rent

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Deposits

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Advance rent

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Personalty

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Insurance

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Indemnity

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Maintenance and repairs

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Alterations

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Casualty

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Subordination

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Assignment and Subletting

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Default

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Abandonment

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Other miscellaneous provisions

Commercial Leases Commercial leases are leases designed to rent sPACE® for business purposes. State statutes typically address the respective responsibilities of commercial landlords and tenants. Types of commercial leases include: •

A gross lease is a lease in which the lessee pays a fixed amount as basic rent and is not required to pay any portion of the lessor’s operating expenses.

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A graduated lease is a lease that contains a rent adjustment clause allowing for the increase and, less often, the decrease of the rent to be paid over the term of the lease.

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A percentage lease is a lease in which, in addition to the base rent, the lessee is obligated to pay a specific percentage of the lessee’s sales receipts to the lessor.

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A net lease is a lease in which the lessee pays a base rent, plus a pro rata share of some of the lessor’s operating expenses.

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A triple net lease is a lease in which the lessee pays a pro rata share of all of the lessor’s expenses.

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A ground lease is a lease for a parcel of vacant real property. The leased premises is then used for the construction of a commercial premises (e.g., shopping center, office building).

Basic elements of a commercial lease are similar to those found in a residential lease: •

Names of the parties

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Description of the premises

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Lease term and renewal

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Early termination

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Use of the premises

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Rent

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Taxes

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Security deposit

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Advance rent

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Utilities

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Signs and advertising

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Insurance

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Indemnity

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Maintenance and repairs

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Lessor’s access to premises

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Alterations

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Trade fixtures

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Casualty

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Rules and Regulations

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Subordination

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Estoppel Certificate

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Assignment and Subletting

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Default

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Other miscellaneous provisions

Surveys A survey is an investigation or examination that verifies the boundaries of a parcel of land and shows the location of all improvements on the parcel. Once the examination is completed, the surveyor sets forth the results in a map or plat of survey.

In a real estate transaction, the buyer typically asks for a survey and pays for it, although this is negotiable. Paralegals who are asked to order the survey for the buyer-client should provide the surveyor with the following: •

A legal description of the real property;

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A copy of the title commitment;

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A list of all permitted exceptions included in the contract for sale and purchase (e.g., restrictive covenants, utility easements); and

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Specific instructions regarding the minimum technical standards that must be met, together with any other specific instructions of the lending institution or title insurance company that will be requesting a copy of the survey.

In addition, paralegals may be asked to verify information to ascertain whether any problems exist that must be resolved prior to closing. In order to do a thorough job, paralegals should compare the survey to the: •

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Contract for Sale and Purchase: o

Check to ensure the survey meets the contract’s requirements.

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Check the time period within which to make objections to survey defects and the time period within which the seller has to cure defects.

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Check the exceptions set forth in the contract (e.g., homeowner’s association restrictions, utility easements).

Title Commitment o

Check the legal description in the survey with the legal description in the title commitment for discrepancies.

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Check the legal description against the drawing shown on the survey for discrepancies.

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Check to see that all easements and title exceptions listed in the title commitment are plotted on the drawing.

Title Search Prior to closing a real estate transaction, a purchaser must determine the quality of the title he/she will receive. The purchaser will want assurance that the property being conveyed is good and marketable, meaning that the title is free from encumbrances that would bring down the value of the property or threaten foreclosure against the property, such as an encroachment on the property or a construction lien filed against the property.

In order to determine the quality of title, a title search must be conducted. A title search is the search of public records to determine if title to real property is marketable. All instruments that affect the title of the parcel of real property in question must be examined. The records must be searched first to determine what recorded instruments exist that affect the property. Instruments affecting title to real property include, but are not limited to, mortgage instruments; deeds; judgment, tax and other liens; and divorce decrees.

Since title examination is a very detailed process, the average purchaser hires an attorney who will examine the title to the property and prepare an opinion of title. However, the attorney’s opinion on the title only covers those items that are contained in the public records. They cannot give an opinion regarding matters that are not revealed by an examination of the title. The purpose of title insurance is to cover those matters that are not readily identifiable.

The Function of Title Insurance Title insurance, like other forms of insurance, is a contract in which the insurer agrees to pay for loss or damage arising from an event in return for the insured’s payment of a premium. Title insurance provides coverage for risk of possible defects undiscovered because of an incomplete search, because of a misinterpretation by the title examiner; or because they cannot be ascertained by a regular examination.

Title companies that issue title insurance are regulated by state statutes and the insurance departments of their respective states. The title company’s attorneys conduct title examinations and then issue a title report called a title commitment, which sets forth the status of the title of a particular parcel of real property and states the terms under which a title policy for the property will be issued.

The Examination Process When examining the public records, the title examiner attempts to establish a chain of title for the property. A chain of title is the genealogy of the property. It is a comprehensive listing of all instruments affecting the property, from the first recorded instrument to the most recent, and indicates: 1) the kind of instrument; 2) the date recorded; 3) the place recorded; 4) the maker of the instrument; 5) the person for whose benefit the instrument was made; and 6) the interest(s) created by the instrument.

The examination of the public records is a laborious, time-consuming process. Therefore, title companies and abstract companies conveniently put together the history of properties in abstracts of title. An abstract of title is a copy or condensed version of each document pertaining to a particular parcel of property. Title examiners rely on the work of prior abstractors and update existing abstracts when the title to the property changes hands.

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Title Insurance Preparation Once a thorough title examination has been conducted, the title agent can prepare the title commitment. Real estate paralegals may be asked to review and/or draft title commitments, so a thorough knowledge of their components is necessary.

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The commitment jacket is the cover of the commitment; it stipulates the standard terms under which the title insurance company commits to issue a title policy. The front of the jacket contains a serial number that represents the commitment number. The back lists the standard exceptions to insurance coverage, which are as follows: o

Taxes for the year of the effective date of the commitment and taxes or special assessments that are not shown as existing liens by the public records.

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Rights or claims of parties in possession not shown by the public records.

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Encroachments, overlaps, boundary line disputes and any other matters that would be disclosed by an accurate survey and inspection of the premises.

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Easements, or claims of easements, not shown by the public records.

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Any lien, or right to a lien, for services, labor or material furnished, imposed by law and not shown by the public records.

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Schedule A indicates: 1) the effective date of the commitment; 2) the type(s) of policy(ies) to be issued; 3) the amount(s) of coverage; 4) the name(s) of the proposed insured(s); 5) the name(s) of the party(ies) in whom title to the property is presently vested; and 6) the legal description of the real property.

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Schedule B contains two parts. Part I specifies the requirements that must be complied with in order for the title insurer to issue the policy(ies). Part II is where the exceptions to the insurance coverage are listed. This section also contains all liens, encumbrances and other defects of record that have been discovered through inspection of the property.

Types of Title Policies There are four basic types of title policies that may be issued: •

The owner’s policy (OPM) is a marketability policy, extending insurance coverage against loss or damage because of the inability to sell the property in the future because of title defects. An owner’s policy is not issued until the purchaser becomes the owner of the real property.

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The owner’s policy leasehold (OPL) is a title policy used to insure the title that the purchaser of a leasehold is acquiring and is most often used when the mortgagor is acquiring an interest in a cooperative.

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The mortgagee’s policy (MP) is a title policy issued to insure the mortgage lien that a lender is acquiring. Like the owner’s policy, the mortgagee’s policy may not be issued until after the closing, when mortgage instruments have been executed and recorded.

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The mortgagee’s policy leasehold (MPL) is a title policy issued to insure the mortgage lien that a lender is acquiring in a leasehold estate and is most often used when the mortgagor is acquiring an interest in a cooperative.

Types of Transfer Rights to real property are transferred by: •

Sale. The sale and purchase of property is the most common way in which property changes hands. The agreement between the buyer and seller is reduced to writing by the drafting of a real estate contract for sale and purchase.

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Devise and Descent. Another common way to acquire property is by inheritance. Upon the death of a real property owner, the manner in which his/her real property will pass depends on whether he/she died testate (with a valid will) or intestate (without a will). When a valid will exists, real property passes according to the terms of the will. When a person dies intestate, his/her property passes according to the intestacy laws of the state in which the property is located.

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Gift. A person may also obtain title to real property by gift. Generally, a gift of real property is revocable prior to the execution and delivery of a deed indicating transfer of title from the donor to the donee.

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Adverse Possession. Acquiring title through adverse possession means acquiring title through taking possession of land that belongs to another without the owner’s consent and retaining possession for a statutory period time. The statutory period varies from state to state.

Adverse possession must be hostile, meaning it must be without the owner’s consent. This must also be actual, meaning there must be physical dominion and control exerted over the property. In addition, adverse possession must be open and notorious, meaning anyone would be able to determine that possession was taking place through inspection of the property. The adverse possessor must be in continuous possession for the entire statutory period. The adverse possession must be exclusive, which means that the adverse possessor cannot share use of the land in question with its title owner.

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Sample Questions Q:

Tom Smith prepares a deed transferring his house to Karen Jones. Tom records the deed in the appropriate registrar’s office. Tom places the recorded deed in his safe and does not tell Karen about it. Which of the following statements is most correct?

A. Tom owns the property because there was no consideration for the deed B. Tom owns the property because he did not deliver the deed to Karen C. Karen owns the property because it is recorded in her name D. Karen owns the property because she has the equitable title

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(C.) is the best answer. Karen owns the property because it is recorded in her name. The legal transfer of ownership of real property is not complete until the deed is physically delivered by the grantor to the grantee and the deed is accepted by the grantee. As long as the deed remains in Tom’s possession, there is a rebuttable presumption that the transfer of ownership has not taken place. However, even though Tom did not physically deliver the deed to Karen, Tom recorded the deed in the public records and it is therefore presumed to have been delivered and accepted by Karen.

Q:

In return for $12,000, Ann gives Edward a 30-day option to purchase her rental property for $150,000. Ann dies one week later, leaving a will that gives all of her real property to Patricia and all of her remaining property to Gloria. If Edward decides to exercise the option before it expires, who is entitled to the purchase price?

A. Patricia B. Gloria C. Edward D. Ann’s heirs

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(A.) If Edward decides to exercise the option before it expires, Patricia is entitled to the purchase price. When a valid will exists, as it does in this case, real property passes according to the terms of the will. Since Ann’s will specifically left her real property to Patricia, Patricia is entitled to the option proceeds.

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With respect to estate administration what is the paralegal’s duties?

A. assist the personal representative B. assist the trustee C. assist the attorney D. assist the heirs

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(C.) A paralegal’s duties with regard to estate administration are to assist the attorney.

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Q:

Donna needs more sPACE® in her garden to grow tomatoes. Her neighbor, Steve, has plenty of sPACE® but refuses to lease to Donna the small strip of land next to Donna’s garden.

Frustrated, Donna plants tomatoes there anyway and continues to do so for a number of years. Based only on these facts, Donna most likely has established which of the following?

A. express easement B. easement by prescription C. easement by necessity D. easement by implication

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(B.) In this case, Donna has an easement by prescription. Fee simple title, a possessory interest in property, may be acquired through a person’s adverse possession of another’s property for the required period stated in the statutes of limitations. An easement by prescription may be created by the use of another’s land if the use is hostile, is open and notorious, and is continuous and uninterrupted for the required period established by the statute of limitations.

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Title to real estate passes to the buyer when which of the following is completed?

A. written B. notarized C. signed D. delivered

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(D.) The deed must be delivered to and accepted by the grantee to be effective. By accepting the deed, the grantee is bound by its terms, whether expressed or implied, which eliminates the need for the grantee’s signature on the deed. The deed transfers title on the date it is delivered to the grantee.

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GLOSSARY

Abatement – process of selling estate property to pay debts.

Abatement of Rent – a deduction from the rent owed for the diminishment in value of the premises caused by the lack of maintenance.

Abstract of Title – chronological summary of all official records and recorded documents affecting the title to a parcel of land.

Accord and Satisfaction – the payment of money, or other valuable consideration (usually less than the amount owed), in exchange for extinguishment of a debt. There must be an express or implied agreement that accepting the smaller sum discharges the obligation to pay the larger sum.

Acquittal – the legal certification that an accused person is found not guilty of the charged offense.

Actual Notice – title matters about which a purchaser has direct knowledge or information.

Actus reus – Latin term: “guilty act.” The wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability.

Ad Valorem Taxes – taxes assessed against real property, usually measured by the value of the real property being taxed.

Administrator (male)/Administratrix (female) – personal representative appointed by the court when there is no valid will.

Adoption – legal process establishing a legal parent-child relationship when the adopting parent is not the child’s biological or birth parent.

Advance Directive – document that expresses the health care wishes of the signor.

Affirmative Defense – a set of facts which confirm the act, but if proved, excuses the defendant from the crime with which they have been charged.

Alibi – affirmative defense which requires proof that the defendant was elsewhere when the criminal act is alleged to have taken place.

Alimony – an award of money given from one spouse to the other for support during separation or following divorce. Duration of alimony can be for a very specific time period and will automatically terminate upon a specific date, or it may be unlimited, terminating only upon the marriage of payee spouse or the death of the payor spouse or the payee spouse, whichever occurs first. Alimony is also known to as “Spousal Support” or “Spousal Maintenance.” It is similar to “Separate Maintenance.” See Spousal Support and Separate Maintenance.

Alternative Dispute Resolution (ADR) – methods of resolving legal disputes without going to trial, in a less adversarial manner, such as through arbitration or mediation.

Alimony Pendente Lite (APL) – a temporary order of court that provides support for one spouse while the divorce is in progress. Also known as Temporary Alimony or Spousal Support.

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Ancestor – relative of a previous generation.

Ancillary Administration – estate administration established in a state where property is located outside of the domiciliary state.

Annulment – the legal ending of an invalid marriage; according to law, neither party was ever married.

Anticipatory Repudiation – occurs when one party lets it be known through his or her own words or actions that he or she does not plan to meet the conditions of the contract. In other words, he or she is breaching the contract.

Appeal – to ask a court of appellate jurisdiction to review the decision of the lower court on the basis that the lower court made an error of law.

Appellant – the party who asks the higher court to review the lower/trial court’s decision.

Appellate Court – a court with jurisdiction to review decisions of lower/trial courts or administrative agencies.

Appellee – a party against whom an appeal is taken and whose role is to respond to, or defend, that appeal.

Appropriation – water rights doctrine stating that water belongs to the person who first makes beneficial use of it.

Arraignment – the initial step in a criminal prosecution whereby the defendant is brought before the court to hear the charges and enter a plea.

Arrears or Arrearages – past due child or spousal support payments.

Arrest – the detention, seizure, taking, or keeping of a person in custody by law enforcement.

Articles of Incorporation – the governing document of the corporation, which must be filed with the Secretary of State in the state of incorporation.

Articles of Registration (Limited Liability Partnership) – public document that must be filed with the Secretary of State in order to form this type of partnership.

As-built Survey – survey that locates all physical improvements on the land in relation to the boundary lines of the land.

Assessment – sum of money owed by a condominium owner for monthly upkeep of the common areas of the condominium.

Assignment – in a lease, the tenant may transfer all of their interest under the lease and retain nothing.

Assumption of the Risk – a defense used when it is alleged that the plaintiff assumed a risk knowingly and willingly of the possibility of harm. Attestation – clause signed by witnesses to a will.

Bankruptcy Court – a U.S. District court subunit comprised of bankruptcy judges within the district and exclusively concerned with administering bankruptcy proceedings.

Bargain and Sale Deed – a deed that conveys property to a buyer for valuable consideration but that lacks any guarantee from the seller about the validity of the title.

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Base Line – imaginary east-west survey line used in the governmental survey system to establish township lines.

Bench Trial – a trial before a judge without a jury. The defendant must waive their right to a jury trial to allow the judge to decide all questions of fact as well as questions of law.

Beneficiary – recipient of personal property under a will or the older of the equitable title under a trust.

Benefit Corporation – a traditional corporation with modified obligations committing it to higher standards of purpose, accountability and transparency. The purpose is a commitment to creating public benefit and sustainable value in addition to generating profit. (only available in 35 states and the District of Columbia).

Bequest – gift of personal property under a will, such as artwork or money; interchangeable with “legacy.”

Beyond a Reasonable Doubt – the standard of proof in criminal cases; higher standard than preponderance of evidence used in civil matters.

Bifurcate (civil) – separating issues in a dissolution action. A proceeding commonly used to obtain a termination of marital status while still resolving issues related to division of property, support, custody and visitation. The court will retain jurisdiction to hear all other unresolved issues.

Bifurcate (criminal) – the dividing of the proceeding into two phases; the guilt phase and the punishment phase.

Board of Directors – individuals elected by the shareholders who are responsible for formulating policy and deciding the business activities in which the corporation should be engaged. The Board of Directors elects the officers of the corporation and also determines the capital structure, the sale of stock, payment of dividends and other business matters.

Bona Fide Purchaser for Value – person who purchases real property in good faith for valuable consideration without notice of any claim to or interest in the real property by any other party.

Bond (civil) – an interest-bearing document giving evidence of a debt issued by a government body or corporation that is sometimes secured by a lien on property and is often designed to take care of a particular financial need.

Bond (criminal) – money posted with the court by a criminal defendant or by their surety to ensure compliance with the terms of bail and especially with the requirement that the defendant appears in court as scheduled.

Booking – the process of making an official record of the name and other personal details of a criminal suspect.

Brady Materials – also referred to as Brady disclosure - consists of exculpatory or impeaching information and evidence that is material to the guilt or innocence or to the punishment/sentence of a

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defendant. Under the U.S. Supreme Court case of Brady v. Maryland (1963), based on Due Process, the prosecution must disclose such material to the defendant if requested to do so.

Burden of Proof – the duty to prove a disputed assertion or charge. The government (prosecutors) have the burden of proof in criminal cases.

Business Judgment Rule – legal principle stating that corporate officers and directors are not liable for honest mistakes of business judgment when acting in good faith.

Bylaws – set of rules adopted by the board of directors which set forth the manner in which the business and affairs of the corporation will be managed.

Call – course and distance describing a boundary line of land in a metes and bounds land description.

Caption – portion of the deed that indicates the county and state in which the deed was signed by the grantor.

Case Law – the law to be found in a collection of reported cases that form all or part of the body of law within a given jurisdiction.

Causation – the act by which an effect is produced; one of four elements to be proven in a successful tort claim. Certificate of Limited Partnership – public document that must be filed with the Secretary of State in order for form this type of partnership.

Chain of Custody - foundation needed to establish authenticity of physical evidence; typically, in criminal cases, this requires proof of who had possession of the exhibit at all times between the time officers seized it and the trial to allow the evidence to be admissible.

Chain of Title – historical sequence of all owners to a particular tract of real property, beginning with the original owner and including all successive owners who have derived their title from the original owner.

Challenge for Cause – a party’s challenge during voir dire, supported by a specific reason such as bias or prejudice, which would disqualify that potential juror. Challenges for cause are unlimited as opposed to preemptory challenges which can be for any reason, but each side has a limited number of these.

Change of Circumstances – the condition that shows a need for modification of a support order.

Charging Document – a document in a criminal case that formally accuses a person of committing a crime, e.g., an indictment or information.

Charging the Jury – refers to the part of a trial when the instructions are given to the jury by the judge regarding the law that applies to the facts of the case on trial and definitions of the relevant legal concepts.

Child Support – payment made (by one parent to the other parent) for the support of children of divorced or separated parents while the children are minors or until they reach an age set by agreement or in a court order.

Clear and Convincing Evidence – the second highest degree of proof used in administrative cases, civil cases and preliminary criminal hearings.

Closely Held Corporation – a privately held corporation whose stock is not traded on the national stock exchanges.

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Closing – consummation of a real estate purchase and sale transaction.

Closing Argument – a lawyer’s final statement to the judge or jury before deliberation begins; in criminal cases the prosecutor and defense attorneys request the judge or jury to consider the evidence and render a verdict or finding in favor of their respective positions (guilty/not guilty).

Closing Date – date set forth in a real estate contract on which the parties agree to perform all of the promises of the contract, including transfer of ownership of real property from seller to purchaser and purchaser pays purchase price to seller.

Cloud on Title – a defect or potential defect in the owner’s title to a piece of land arising from some claim or encumbrance, such as a lien, an easement or a court order.

Codicil – a legal instrument that modifies an earlier will.

Collaborative Law – a form of alternative dispute resolution. The parties and attorneys work together in a determined spirit of cooperation to settle their dispute.

Collateral Relative – non-lineal blood relation.

Common Areas – common areas or common elements of a condominium are the portion of the property that is owned by all of the owners of the property.

Common Law – the body of law derived from court decisions as opposed to statutes or even the U.S. Constitution.

Community Property – all income earned or property acquired by a married person during marriage.

Each spouse holds an undivided 50% interest in all community property and upon divorce all community property assets are divided equally between spouses. Ten states are considered community property states (Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin). All other states are considered Marital Property or Equitable Distribution states.

Comparative Negligence – an alternative defense to contributory negligence theory which allows the liability of the defendant to be adjusted or reduced by the percentage of plaintiff’s contribution to his/her own injuries.

Compensatory Damages – money awarded to compensate the victim for the tortfeasor’s negligence.

Competence to Stand Trial - Competency determines whether a defendant is able to appear at trial, assist their attorney in their defense, and understand the proceedings; this is different from the insanity defense which addresses whether a defendant will be held responsible for their criminal actions.

Complaint – a formal legal document that sets out the facts and legal reasons that the plaintiff believes support a claim against the defendant entitling the plaintiff to a legal remedy.

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)72 – CERCLA is federal regulation that created a trust fund designed to finance activities of the EPA; providing the agency the authority to recover cleanup costs for contaminated properties for the responsible parties for the contamination. Also knows as Superfund.

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judge sentences the defendant to a certain period of time for each crime. Sentences that may all be served at the same time, with the longest period controlling, are concurrent sentences. Sentences where defendants have to finish serving the sentence for one offense before they start serving the sentence for any other offense are consecutive sentences.

Concurring Opinion – an opinion written by less than a majority of the judges on the court that agrees with the result reached by the majority, but not with all of its reasoning.

Condominium – property ownership in which owner owns an individual unit in a multiunit building and is a tenant in common with other owners.

Consanguinity – relationship determined by blood ties.

Consequential Damages – a legal term referring to an injury or loss that is sustained by someone as an indirect result of another person’s action.

Contributory Negligence – a defense to negligence claiming the plaintiff’s own actions contributed to the injuries.

Construction Lien – allows certain persons and entities who provide labor or materials for the improvement of real property and who are not paid the statutory right to place a claim of lien on and ultimately foreclose on specific real property and any improvements thereon. See Mechanic’s Lien.

Constructive Notice – such notice as is implied or imputed by law, as in the case of notice documents that have been recorded in the appropriate registry of deeds.

Constructive Trust – implied trust used to right a wrong.

Conventional Loan – a loan made by a private lender in which the lender usually does not have any insurance or guarantee from a third party, such as a government agency backing the loan should the borrower fail to meet his/her loan obligations.

Cooperative – a farm, business, or other organization which is owned and run jointly by its members, who share the profits or benefits. Cooperatives are businesses governed on the principle of one member, one vote.

Corporate Opportunity Doctrine – Principle established by case law that says corporate officers, directors and agents cannot take personal advantage of an opportunity that in all fairness should have belonged to the corporation.

Corporation – a business entity, authorized by state law, separate and distinct from its owners that is formed and authorized to act as a single person. Corporations are owned by their stockholders (shareholders) who share in profits and losses generated through the entity operations.

Corpus – trust property.

Court of Appeals – the court that hears the facts of a case by written argument, and possibly oral argument, which have already been argued at trial if that case on the district court level is not favorable to one party or the other.

Cross-Examination – the examination of a witness who has already testified in order to check or discredit the witness’s testimony, knowledge or credibility.

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Curtesy – in common law, a husband’s right, upon his wife’s death, to a life estate in the land that his wife owned during their marriage, assuming that a child was born alive to the couple. The right has been largely abolished, although the term is still included in certain forms/agreements.

Custodial Interrogation - questioning of a detained person by the police in connection with a criminal investigation. A person is considered to be ‘in custody’ when they reasonably believe they are not free to leave, i.e., under arrest or otherwise stopped/detained by police. Custodial interrogations are presumed to be unlawfully coercive if the accused is not informed of their Miranda rights. See Miranda warnings.

Custodial Parent (CP) – the person who has primary care, custody and control of a child.

Custody – the legal right and responsibility awarded by a court for the care, possession and rearing of a child. Distinctions are sometimes made between legal custody, which relates to decision-making responsibility, and physical custody, which relates to residence or physical access.

Date of Separation – a break in the marital relationship of spouses. The specific definition of “date of separation” varies from state to state, but it’s generally considered the date that spouses no longer live together as a married couple. In community property states, the court uses the date of separation to determine each spouse’s community and separate property interests. In other states, the court may value marital property as of the date of separation when dividing such property between the spouses.

Decedent – a deceased person.

Declaration of Trust – instrument creating an inter vivos trust.

Deed of Trust – a deed conveying title to real property to a trustee as security until the grantor repays a loan.

Default – the failure to do something required by law.

Default Judgment – a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law.

Defendant – the party sued in a civil lawsuit or the party charged with a crime in a criminal prosecution.

Degrees of Separation – number of generations a person is removed from the decedent.

Deliberation – the process by which jurors weigh the evidence and facts of the case in order to reach a verdict.

Direct Examination – the first questioning of a witness in a trial or other proceeding, conducted by the party who called the witness to testify.

Dissolution of Marriage – the act of formally terminating or dissolving the marriage and returning the parties to the status of unmarried persons. Also referred to as a divorce.

Deposition – the taking of out-of-court oral testimony of a witness under oath before a court reporter that is typically transcribed into a written transcript for later use in court or for discovery purposes.

Devise – testamentary gift of real property.

Discovery (civil) – efforts of a party in a lawsuit through his/her/its attorneys to obtain information before trial through interrogatories, requests for production, requests for admission and depositions of parties and G-7

potential witnesses.

Discovery (criminal) – pretrial disclosure of information related to litigation from one party to another party. Most discovery in criminal cases is governed by statute, and upon request, prosecutors must disclose statements by the defendant and any co-defendants, documents and tangible objects the prosecution will use at trial, a list of the witnesses the prosecution plans to have testify at trial, copies of reports of scientific tests and medical and physical examinations that have been prepared for the prosecution; and Brady Materials.

Dissenting Opinion – an opinion by one of more judges who disagree with the decision reached by the majority.

Distributee – intestate inheritor of personal property.

Diversity Jurisdiction – the jurisdiction granted to federal courts over civil disputes involving parties having diverse citizenship (as in being from different states) where the matter in controversy exceeds a statutory amount.

Doctrine of Laches – a legal right or claim may be barred from court if an unreasonable lapse of time in asserting that right or claim has prejudiced the adverse party, resulting in permanent damage to the adverse party’s ability to defend him/herself.

Domestic Partnership – legal recognition of unmarried homosexual couples and heterosexual couples, offered by some state and local governments. Domestic partnerships offer some of the same benefits enjoyed by married persons, including the right to share health insurance coverage, and rights under the Family and Medical Leave Act (FMLA). Some states refer to it as civil union.

Domestic Violence – violence committed by one family or household member against another.

Donee – recipient of a gift.

Dower – in common law, the right of a wife, upon her husband’s death, to a life estate in one-third of the land that he owned in fee.

Due Care – proper and sufficient care as far as circumstances demand it; the absence of negligence.

Due Process – guarantees that an accused shall receive notice of the charges of which they are accused, a fair, public trial and they shall not be unfairly deprived of life, liberty or property. The due process clause of the Fifth Amendment of the U.S. Constitution is applied to the states via the Fourteenth Amendment.

Duress – a wrongful act or threat by one person that compels another person to perform some act, such as sign a contract, which he/she would not have performed voluntarily. As a result, there is no true meeting of minds of the parties and, therefore, there is no legally enforceable contract. Blackmail, threats of physical violence or threats to institute legal proceedings in an abusive manner can constitute duress.

Duty of Care – the responsibility or legal obligation of a person or organization to avoid acts or omissions which can be reasonably foreseen to be likely to cause harm to others. Corporate directors and officers are obligated to use care and diligence when acting on behalf of a corporation.

Easement – an interest in land owned by another person, consisting of the right to use or control the land, including the area above or below it, for a specific limited purpose.

Electronically Stored Information (ESI) – information created, manipulated, communicated, stored and best utilized in digital form, requiring the use of computer hardware and software.

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Emancipation – the point at which a child may be treated as an adult and in some states when the duty to support may terminate.

Eminent Domain – the legal power to expropriate private land for the sake of public necessity.

Employee Retirement Income Security Act of 1974 (ERISA) – a federal law that sets minimum standards for most voluntary established retirement and health plans in private industry to provide protection for individuals in these plans.

Encroachment – an infringement of another’s rights or intrusion on another’s property.

Equitable Distribution/Division – the distribution of marital assets by a court in a divorce action in accordance with statutory guidelines that are designed to produce a fair but not necessarily equal division of the property.

Equitable Title – title giving the beneficiary the right to enjoy trust property subject to limitations imposed by the trustor.

Escheat – the right of the state to take title to property after the death of a decedent if it appears certain that there are no heirs, descendants or named beneficiaries to take the property upon the death of the last known owner.

Estate – interest in land; also, property of the decedent.

Estate Administration – process of collecting assets, paying debts, and distribution of a person’s property after his/her death.

Evidence – something that tends to prove or disprove the existence of an alleged fact. Evidence can be testimony, documents and tangible objects. Evidence must be relevant and reliable to be admissible.

Ex Parte – Latin term: “without the party.” Refers to communication made between the court and one party, in the absence of the other party, which is generally forbidden.

Exculpatory Clauses – a contractual clause that releases one party from liability in case of wrongdoing by the other party involved.

Exclusionary Rule - The exclusionary rule prevents the government from using evidence gathered in violation of the U.S. Constitution. The decisions in Weeks v. United States and later in Mapp v. Ohio established that the exclusionary rule applies to evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment. In short, the exclusionary rule says that evidence obtained by the government illegally is inadmissible in criminal cases.

Executor (male)/Executrix (female) – personal representative named in a will.

Exhibit – a document, record or other tangible object formally introduced as evidence in court. Exhibits are only admissible if a proper foundation authenticating the item has been presented. See Chain of Custody.

Exonerate - absolve from blame; declare a defendant innocent.

Expert Witness – a witness qualified by knowledge, skill, experience, training or education to provide a scientific, technical or other specialized opinion about the evidence or an issue of fact.

Express Condition – a condition that is clearly stated in the language of the contract that defines a G-9

particular circumstance that either creates or removes an obligation for one or more of the contracting parties.

Extradition – the surrender of an alleged criminal, usually under the provisions of a treaty or statute, by one authority (such as a state) to another having jurisdiction.

Fact Finder –fact finders hear testimony and review evidence to issue a decision/render a verdict on the collective factual issues and the defendant’s guilt or innocence. The finder(s) of fact are the judge in a bench trial, and the jurors in jury trials.

Fact Witness – also known as a lay witness. Restricted to giving an opinion or making an inference that is based on first-hand knowledge and is helpful in clarifying the testimony or in determining the facts.

Federal Courts – a court having federal jurisdiction, including the U.S. Supreme Court, circuit courts of appeals, district courts, bankruptcy courts and tax courts.

Federalism – the division of powers between the branches of federal and state governments.

Felony – a serious crime potentially punishable by imprisonment for more than one year and under federal law and in some states, with death.

Fictitious Name – the trade name of a company, or the d/b/a (doing business as) name, as opposed to the legal name of the company. A statement must be filed if a business chooses to operate using a name other than its name of legal record in order to connect a business alias to the entity and in required in order to protect consumers in the event of litigation.

Fiduciary – trustee; a person held to a standard of care higher than ordinary care.

Fiduciary Duty – an obligation to act in the best interests of another party.

Force Majeure – a common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime or an event described by the legal term “act of God“ (such as flooding, an earthquake, or a volcanic eruption), preventing one or both parties from fulfilling their obligations under the contract.

Foreclosure – the forced sale of real estate to pay off a loan on which the owner of the property has defaulted.

Foreign Corporation – a corporation incorporated in one jurisdiction but doing business in other states or jurisdictions.

Forensic Accountants – CPAs who provide forensic accounting services that generally involve the application of specialized knowledge and investigation skills to collect, analyze and evaluate evidential matters that are suitable for use in a court of law.

Foreperson – the juror who chairs the jury during deliberations and speaks for the jury in court by announcing the verdict.

Foreseeability – the action by which, under particular circumstances, would produce an anticipated result such as an injury to someone.

Form 706 – federal estate tax return.

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Franchise – a party that owns a trade name or trademark (the franchisor) may contract with a party that wishes to sell, distribute or provide services and/or products using the trade name or mark (franchisee).

General Lien – a lien that is not secured by any particular parcel of real property and, therefore, may affect all nonexempt property of a debtor. An example of a general lien is a lien for federal estate taxes. If these taxes are not paid, the U.S. government may go after any nonexempt property of the decedent’s estate, as full or partial satisfaction of the debt.

General Partnership – unincorporated partnership with two or more owners called general partners in which management responsibilities, profits and liabilities are equally divided among the all partners.

General Warranty Deed – a type of deed by which the grantor states that he/she has valid title and will defend that title against any defect arising from the actions of the grantor or those of the grantor’s predecessors. A general warranty deed provides the greatest degree of protection for the grantee.

Gift – transfer of property without consideration.

Grand Jury – a body of people (usually 16 to 23) who are chosen to sit for extended periods of time and who, in ex parte proceedings, decide whether to issue indictments in criminal cases.

Grantee – the person to whom the real property is to be conveyed.

Grantor – the person or entity that transfers ownership of the real property.

Gross Negligence – a higher degree of disregard, inadvertence and indifference to a legal duty and the consequences of ignoring the legal duty.

Grounds – in the eyes of the law (under statute), the reason for granting a divorce.

Guardian Ad Litem – competent adult appointed by a court to represent an incapacitated person (including minors) during the course of legal proceedings.

Guardian of the Estate – person appointed and legally authorized to manage the property of an incapacitated person.

Guardian of the Person – person legally authorized to manage the personal, non-financial affairs of an incapacitated person.

Guilty Plea – an accused person’s formal admission in court of having committed the charged offense.

Guilty Verdict – a jury’s unanimous finding of guilt beyond a reasonable doubt on the factual issues of a case.

Health Care Proxy – legal document authorizing someone other than the principal to make health care decisions for the principal should the principal be unable to speak for him/herself.

Hearsay – generally inadmissible evidence consisting of an out-of-court statement offered by another, to prove the truth of the matter asserted in that statement. In other words, it is testimony given by a witness who relates not what they know, but what others have said outside of court, presented for the purpose proving that what was said outside of court was true.

Heir – intestate inheritor of real property.

Holographic Will – a will written in the testator’s own hand.

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Implied Conditions – those conditions that have not been expressly stated, but which the law presumes to be so inherently a part of the contract that it need not be set forth in clear and written terms. Implied conditions are to be understood by the parties.

Implied Trust – trust created by operation of law.

Inchoate crime – also known as a preliminary crime or an incomplete crime which is completed by taking a punishable step towards the commission of another crime. The common inchoate offenses are attempt, solicitation, and conspiracy.

Indictment – a formal, written accusation of a crime made by a grand jury and presented to a court for prosecution against the accused.

Information – a formal, criminal charge made by a prosecutor without a grand jury indictment, but through a preliminary hearing in front of a judge or magistrate.

Inheritance Tax – tax imposed in some states on the transfer of property from a decedent.

Injunction – a court order that directs a party to refrain from or to perform certain acts.

In rem jurisdiction – the power a court may exercise over real estate or personal property, i.e., large items of moveable property, such as a ship (to satisfy debts arising from the operation or use of the ship), located within the court’s jurisdiction, or a “status” against a person over whom the court does not have personal jurisdiction. In rem jurisdiction assumes the property or status is the primary object of the action, rather than personal liabilities not associated with the property.

Insanity Defense – an affirmative defense which seeks a finding of “not guilty by reason of insanity” based on the principle that the accused is too impaired due to a mental state at the time of the crime to be held criminally responsible for their actions. People who are found not guilty by reason of insanity but are considered dangerous are usually civilly committed to secure mental health treatment facilities for indefinite periods of time.

Insider Trading – use of material, non-public information received from a corporate source by someone who has a fiduciary obligation to shareholders and potential investors and who benefits from trading on such information.

Intangible Property – personal property that represents something of value but may have little intrinsic value by itself.

Intent – the design, will or determination to act a certain way through a person’s state of mind.

Intentional Torts – actions designed with intent that bring about a certain result from the act.

Inter Vivos Trust (a/k/a Living Trust) – trust created during the life of the trustee to take effect during the trustor’s life.

Interlocutory Appeal – an appeal that occurs before the lower/trial court’s ruling on the entire case.

Interrogatories – written questions served by an opposing party which the receiving party is required to answer under oath.

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Intestate – person who dies without a valid will.

Intestate Succession – persons who are entitled to inherit property of a person who dies without a valid will.

Invitation to Treat – an expression of willingness to negotiate. A person making an invitation to treat does not intend to be bound as soon as it is accepted by the person to whom the statement is addressed.

Irreconcilable Differences – substantial incompatibility between marriage partners that is a broad ground for divorce. Neither party is considered to be at fault.

Irretrievable Breakdown of the Marriage – a broad ground for divorce that is predicated on the development of incompatibility between marriage partners and that is used in many states as the sole ground of no-fault divorce. Neither party is considered to be at fault.

Issue – direct lineal descendent.

Joint Custody – custody of a child shared by divorced or separated parents who alternate physical custody of and share in decisions regarding the child. Also called shared custody.

Joint Legal Custody – both parents share responsibility of providing for the health, education and welfare of the minor child(ren).

Joint Physical Custody – both parents will spend equal or substantially equal time with the minor child(ren).

Joint Stock Company – Corporation with unlimited liability for the shareholders. Investors in a U.S. joint stock company receive stock (shares) which can be transferred, and can elect a board of directors, but are jointly-and-severally liable for company’s debts and obligations. A U.S. joint stock company cannot hold title to a real property.

Joint Tenancy – when two or more persons are equal owners of some property. Provides that each party owns an undivided interest in the entire parcel, with both having the right to use all of it and the right of survivorship (i.e., upon the death of one joint tenant, the other has title to it all).

Joint Venture – Relationship or association between two or more persons, entities or an agency set up for a specific business undertaking or limited time period.

Judgment Lien – a court-ordered lien placed against property when the homeowner fails to pay a debt.

Jurisdiction – the authority given by law to a court to try cases and rule on legal matters within a particular geographic area and/or over certain types of cases.

Jurisprudence – the branch of philosophy concerned with the law and the principles that lead courts to make the decisions they do.

Jury – a body of persons selected and legally sworn to decide questions of fact and render a verdict according to the evidence presented.

Jury Instructions – the instructions or guidelines given by a judge concerning the law of the case.

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Jury Trial – a trial in which the factual issues are determined by a jury, not by a judge.

Laws of Succession – statutes indicating a person’s intestate heirs.

Leading Question – a question that suggests the answer to the person being interrogated. A question that may be answered by either ‘yes’ or ‘no.’ Generally, only allowed in cross-examination.

Lease – a contract by which a rightful possessor of real property conveys the right to use and occupy that property in exchange for consideration, usually rent.

Legacy – gift of personal property, especially money, under a will; interchangeable with “bequest.”

Legal Separation – a separation of spouses that does not involve the dissolution of their marriage. Parties obtain a court judgment or decree of separation directing or authorizing them to live separate and apart. A court judgment or decree of separation does not dissolve the marriage or allow the parties to remarry, but may resolve all custody and financial issues.

Legatee – recipient of money under a will.

Lessee – one who has a possessory interest in real or personal property under a lease; a tenant.

Lesser Included Offense - A lesser included offense is a crime that is fully contained within a greater crime—the elements of the greater offense cannot be proved without first proving the elements of the lesser. For example, trespass (entry without permission) is a lesser included offense of the crime of burglary (entry without permission with intent to commit a crime therein).

Lessor – one who conveys real or personal property by lease; a landlord.

Letters of Administration – court authorization to act on behalf of decedent’s estate granted to an administrator/administratrix.

Letter of Deficiency – informal letter issued by the SEC to notify the concerned public corporation that its registration statement doesn’t comply with mandatory federal disclosures. The letter indicates what corrections need to be made in become compliant.

Letters Testamentary – court authorization granted to an executor/executrix.

Lien – a property right that remains attached to an object that has been sold, but not totally paid for, until complete payment has been made.

Life Estate – tenancy for the period of the tenant’s life.

Limited Liability Company (LLC) – a type of business organization that offers the limited liability of a corporation and the tax benefits of a partnership whereby the owners are not personally liable for the company’s debts or liabilities. The owners of an LLC are referred to as “members,” whose rights and responsibilities in managing the LLC are governed by an operating agreement. An LLC is legally formed by the filing of a document called the articles of organization with a state official, usually the Secretary of State.

Limited Liability Limited Partnership (LLLP) – a type of limited partnership that consists of one or more general partners and one or more limited partners. Liability of all partners is the same even though

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there is a general partner, which differs from a typical limited partnership where the general partners are jointly liable for all obligations of the partnership. Liability is limited to the amount of the investment. (only 25 states have LLLP statutes).

Limited Liability Partnership (LLP) – form of partnership in which all partners are limited and there are no general partners. This form of entity is often used by professionals as the partnership may continue even if one partner is sued; the partners are not jointly or severally liable.

Limited Partnership (LP) – a partnership that has one general partner responsible for managing the business, and one or more limited partners who invest in the partnership, but do not participate in its management and whose liability is limited to the amount of capital they contribute.

Liquidated Damages – a stipulated contractual amount that the parties agree is a reasonable estimation of the damages owed to one party in the event of a breach by the other.

Lis Pendens – Latin: a suit pending which concerns title to real property or some interest in that property.

Living Will – instrument indicating a person’s wishes with respect to life support should he/she be unable to speak for him/herself at the time life support may be needed.

Loan-to-Value Ratio – the percentage of the property’s value that is mortgaged; divide the mortgage amount by the home’s Fair Market Value to get the LTVR. Long-arm statute – a state statute allowing for the assertion of personal jurisdiction over a nonresident defendant who has some connection (such as ownership or use of property, transaction of business or commission of a tort) within the state.

Magistrate Judge – conducts all proceedings in a jury or non-jury civil matter provided all parties consent and trials of persons accused of misdemeanors if the defendant consents.

Majority Opinion – an opinion joined in by more than half the judges considering a given case.

Malice – ill will or the intentional doing of a wrongful act or injury to someone without excuse.

Marital Deduction – tax provision permitting property that goes to a surviving spouse to pass tax free, in unlimited amounts.

Marital Property – property acquired by either spouse during the course of a marriage that is subject to division upon divorce. In nearly all non-community property states, marital property is divided according to what the court determines is equitable.

Marital Settlement Agreement – a legal and binding contract between the parties setting forth the division of property, terms of spousal support, child support and custody and visitation. Also known as Marital Separation Agreement.

Marshalling Assets – collecting and categorizing the estate of the decedent.

Mediation – a form of alternative dispute resolution where a neutral third party helps the parties resolve their differences. The mediator generally has no decision-making authority.

Mechanics Lien– see Construction Lien.

Mens Rea – Latin Term: “guilty mind, criminal mind or criminal intent.”

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Metadata – often described as “data about data.” In the context of litigation, this term means information about electronic files, including author, time and date created, last revision, file size and a summary of the file.

Miranda Warnings – stems from Fifth Amendment right against self-incrimination and Sixth Amendment right to an attorney. The requirement to give Miranda warnings comes from Miranda v.

Arizona, (1966) where the U.S. Supreme Court held that a defendant cannot be questioned by police in a custodial interrogation until the defendant is made aware of the right to remain silent, the right to consult with an attorney and have the attorney present during questioning, and the right to have an attorney appointed if indigent.

Misdemeanor – a crime that is less serious than a felony and is usually punishable by fine, forfeiture or brief confinement in a local jail (as opposed to prison) for up to one year.

Mortgage – an interest given on a piece of land, in writing, to guarantee the payment of a debt or the execution of some action.

Mortgagee – one to whom property is mortgaged; the mortgage creditor or lender.

Mortgagor – the person who has borrowed money and pledged his/her real property as security for the money provided by the lender (mortgagee).

Motion – a formal request to a court for a specific ruling, order or direction; can be verbal or written.

Motion in Limine – a pretrial motion that asks a judge to rule that certain evidence not be referred to or offered at trial, as being inadmissible due to unfair prejudice. (Different grounds than for a Motion to Suppress) Motion to Suppress- a motion by the defense in a criminal case that asks the court to prohibit the introduction of evidence illegally obtained by the government in violation of the defendant’s constitutional rights. A Motion to Suppress asks the court to apply the Exclusionary Rule.

National Securities Exchange – entity for trading stocks of publicly held corporations. The two U.S. exchanges are the New York Stock Exchange (NYSE) and the National Association of Securities Dealers Automated Quotations (NASDAQ).

Negligence – the failure to use such care as a reasonably prudent and careful person would use under the same or similar circumstances.

Negligence Per Se – an action or omission where the evidence is clear and not controverted and was in violation of a statute.

Nominal Damages – small damages awarded to a plaintiff as a symbolic gesture.

Nolo Contendere Plea – is also called a “no contest” plea entered by a defendant who accepts punishment but doesn’t admit guilt. It has the same effect as a guilty plea. A plea of nolo contendere is different from an Alford plea which is a guilty plea by a defendant who claims to be innocent.

No-Fault Divorce – when divorce is granted without a party having to prove the other party’s marital misconduct. “Fault” is a marital misconduct that may be considered for some issues in some states.

Noncustodial Parent (NCP) – the person who does not have primary care, custody or control of a child.

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Non-marital Children – children born out of wedlock, or children from a prior marriage or relationship.

Non-Marital Property – property of a spouse that is not community property or marital property and is not subject to division between the parties. Examples of non-marital property are property acquired by a spouse prior to marriage or property acquired by a spouse during marriage as a gift or by inheritance.

Nonresidential Alien – a person who does not meet the IRS green card or substantial presence test to be declared as a “resident alien” – generally, a new arrival on a J-1 or F-1 visa. Non-residential aliens are taxed differently than residential aliens.

Notice Statute – a recording act providing that the person with the most recent valid claim, and who purchased without notice of an earlier, unrecorded claim, has priority.

Novation – the act of either replacing an obligation to perform with a new obligation, or replacing a party to an agreement with a new party.

Nuncupative Will – oral will permitted in limited situations.

Obligee – the person to whom a duty of support is owed.

Obligor – the person who has the obligation to provide financial support.

Offeree – a person or entity to whom an offer to enter into a contract is made by another (the offerer).

Offerer – a person or entity who makes a specific proposal to another (the offeree) to enter into a contract.

Officers – corporate employees who are appointed by the board of directors to manage the day-to-day operations of a corporation.

Opening Statement – the prosecutors and defense attorneys initial address at the outset of a trial relaying their client’s version/theory of the case to give the judge or jury an idea of what the case will be about.

The opening statements occur before the first witness testifies.

Opinion – a court’s written explanation of how it applied the law to the facts before it to resolve a legal dispute.

Oral Argument – a spoken presentation before a court (especially an appellate court) supporting or opposing the legal relief at issue.

Personal jurisdiction – the power of a court to hear and determine a lawsuit involving a defendant by virtue of the defendant’s having some contact with the place where the court is located. This includes, but is not limited to, the defendant’s residence within the state, out-of-state residents who have been in the state for a short period of time and corporations that were either incorporated in the state or do business within the state.

Parenting Plan – written agreement between parents that outlines the amount of time a child will spend with each parent and how each parent will make decisions affecting a child’s welfare and education. Also known as a custody and visitation agreement or time-share plan.

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Parol Evidence Rule – prohibits the introduction of evidence of prior or contemporaneous negotiations and agreements that contradict, modify, or vary the contractual terms of a written contract when the written contract is intended to be a complete and final expression of the parties’ agreement.

Paternity action – an action brought to determine parentage of a child born when the parents are not married.

Pendente Lite – Latin for during the suit: while litigation continues.

Per Capita – equally to each person in his/her own right.

Per Curiam Opinion – by the court as a whole. A court opinion, usually short in nature, which does not name the judge who wrote the opinion.

Per Stirpes – taking property by right of representation.

Peremptory Challenge – one of a party’s limited number of challenges during voir dire that does not need to be supported by a reason, except that preemptory challenges cannot be used to systematically discriminate based on race, ethnicity or sex under Batson v. Kentucky (1986).

Perfect Tender Rule – the legal right for a buyer of goods to insist upon “perfect tender” by the seller. In a contract for the sale of goods, if the goods fail to conform exactly to the description in the contract (whether as to quality, quantity or manner of delivery), the buyer may reject the goods.

Performance – the act of completing a transaction according to the terms given in the contract.

Permanent Alimony – alimony awarded after divorce which consists of payments at regular intervals that may change in amount or terminate on a specific date or terminate only upon the marriage of payee spouse or the death of the payor spouse or the payee spouse, whichever occurs first.

Personal Jurisdiction – jurisdiction granted a court over the parties before it that allows the court to issue a binding judgment.

Personalty (or personal property) – any movable or intangible thing that is subject to ownership and not classified as real property.

Petition – in the context of litigation, a petition is a formal, written request to a court for equitable relief.

Petitioner (in divorce proceeding) – the person who initiates divorce or marital dissolution proceedings.

Piercing the Corporate Veil – Refers to a situation in which courts put aside limited liability and hold a corporation’s shareholders or directors personally liable for the corporation’s actions or debts if that shareholder or director misuses it for improper purposes.

Plaintiff – in civil cases, the party who initiates a lawsuit by filing a complaint with the court against one or more defendants, seeking a legal remedy. Criminal charges can only be brought by the government, private persons cannot file criminal charges. In criminal cases, there is not a “plaintiff” but there is a “prosecutor.”

Plea – an accused person’s formal response of guilty, not guilty or no contest.

Plea Agreement/Plea Bargain – a negotiated agreement between a prosecutor and a criminal defendant

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whereby the defendant pleads guilty to a lesser offense or amended charges, in exchange for a more lenient sentence and/or a dismissal of other charges.

Pleading – a written document (e.g., complaint or answer) with formal declarations by the parties in a lawsuit setting forth claims, averments, allegations, denials or defenses.

Police Powers – a state’s Tenth Amendment right, subject to due process and other limitations, to establish and enforce laws protecting the public’s health, safety and general welfare, or to delegate this right to local governments. Police powers include licensing, inspection and zoning, among others.

Pour-Over Will – includes provisions for property that may not have been identified in an inter vivos trust.

Power of Appointment – ability of testator to select a person who will be given authority to dispose of certain property under a will.

Power of Attorney – legal document authorizing someone to act on the behalf of the signatory.

Precedent – a prior decision that can be used as a standard in a subsequent case that is similar.

Prenuptial/Antenuptial Agreement – a written contract entered into prior to marriage that specifies how property will be divided upon divorce or death of a spouse. Also known as Premarital Agreement.

Preponderance of the Evidence – burden of proof in most civil cases and the lowest degree of proof required to find for the party that, on the whole, has the stronger evidence, however slight the edge may be.

Presentence Investigation (PSI) – prepared by probation officers upon conviction of the defendant and provides information to the court on the defendant’s personal and social history, prior criminal conduct, medical and addiction history, and other information to be considered in determining the sentence to impose.

Prima Facie Evidence – that evidence which proves a case at first sight.

Principal – trust property of cash; also, a person who has controlling authority.

Private Mortgage Insurance (PMI) – insurance from which the benefits are intended to insure the portion of the loan that exceeds the typical, conventional loan-to-value ratio.

Probable Cause – a reasonable ground to suspect that a person has committed, or is committing, a crime or that a place contained specific items connected with a crime. Probable cause is more than a bare suspicion but less than evidence that would justify a conviction must be shown before an arrest warrant or search warrant may be issued.

Probate – to prove a will is valid.

Process Server – a person who delivers legal papers in lawsuits, either as a profession or as a government official (e.g., deputy sheriff, marshal, or constable).

Promissory Estoppel – a term used in contract law that applies where, although there may not otherwise be an enforceable contract because one party has relied on the promise of the other, it would be unfair not to enforce the agreement.

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Promissory Note – an unconditional, written and signed promise to pay a certain amount of money on demand or at a certain, defined date in the future.

Professional Corporation (PC) – corporation organized by doctors, dentists, lawyers, accountants and other licensed professionals specified in state statutes.

Proximate Cause – a natural, continuous sequence of events set into motion by the tortfeasor; and, when unbroken, produces injury – without such action, the result or injuries would not have occurred.

Proxy – a person or power authorized to act for another.

Public Defender - a lawyer appointed by the court and paid by the county, state, or federal government to represent indigent defendants charged with jailable crimes.

Publicly Held Corporation – corporation whose stock is traded on at least one national securities exchange.

Punitive Damages – damages awarded to a plaintiff in order to punish the defendant and to keep a particularly bad act from happening again.

Putative Spouse – a person who believes in good faith, that his/her marriage was valid. Considered the innocent party in an annulment proceeding.

Qualified Domestic Relations Order (QDRO) – a judgment, decree or order for a retirement plan to pay child support, spousal support or marital property rights to a spouse, former spouse, a child or other dependent of a participant.

Quasi in rem jurisdiction – refers to a legal action based on property rights of a person absent from the jurisdiction. Any judgment will affect only the property seized. In a quasi in rem case, the court may lack personal jurisdiction over the defendant, but it has jurisdiction over the defendant’s property. The property could be seized to obtain a claim against the defendant.

Quiet Enjoyment (Covenant of) – a written and binding agreement, usually inserted in leases and conveyances on the part of the grantor, promising that the tenant or grantee shall enjoy the possession of the premises in peace and without disturbance.

Quitclaim Deed – a deed in which the grantor transfers whatever interest he/she may have without making any warranties regarding the quality of the title.

Race-Notice Statute – a recording law providing that the person who records first, without notice of prior unrecorded claims, has priority.

Race Statute – a recording act providing that the person who records first, regardless of notice, has priority.

Reasonable Care – a degree of care which a person of ordinary prudence would exercise in the same or similar circumstances.

Reasonable Doubt – the highest degree of proof required to determine whether a criminal defendant is guilty.

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Remainderman – person to whom legal and equitable titles merge.

Remand – to return to the lower court, usually with instructions from the appellate court.

Request for Production of Documents – written requests served by an opposing party which seek the production of documents, correspondence, videos and/or any other tangible evidence relating to the action.

Res Ipsa Loquitor – Latin: the thing speaks for itself; a theory of negligence used when there is a rebuttable presumption or inference that defendant was negligent.

Rescission – terminates the contract, and the parties are placed in the position of never having entered into the contract.

Resident Alien - is a foreign person who is a permanent resident of the country in which he or she resides but does not have citizenship. To fall under this classification in the U.S., a person needs to either have a current green card, have had one in the previous calendar year or meet the substantial presence test requirements.

Respondent (in divorce proceeding) – an answering party in a proceeding in family court.

Respondeat Superior – “let the master answer;” the master [employer] is liable in certain cases for the wrongful acts of his/her servant [employee].

Restitution – a remedy designed to restore the injured party to the position occupied prior to the formation of the contract.

Restraining Order or Order for Protection – an order of the court that is intended to protect one individual from violence, abuse, harassment, or stalking by another especially by prohibiting or restricting access or proximity to the protected party. A Restraining Order may also be issued to prevent one party from selling assets, withdrawing money from accounts, etc.

Restrictive Covenant – a private agreement, usually in a deed or lease, which restricts the use or occupancy of real property, especially by specifying lot sizes, building lines, architectural styles and the uses to which the property may be put.

Reverse – to overturn a judgment on appeal.

Revocable Trust – trust in which the trustor retains the power to revoke.

Riparian Rights – water rights doctrine wherein all property owners adjoining streams, rivers and lakes must share the use of the water equally.

Rule Against Perpetuities – rule prohibiting a grant of an estate unless the interest must vest, if at all, no later than years after the death of some person alive when the interest was created.

S corporation – For U.S. federal income tax, is a closely held corporation (or, in some cases, a limited liability company (LLC) or a partnership) that makes a valid election to be taxed under Subchapter S of Chapter 1 of the Internal Revenue Code. (S-corp) is one that is owned by its shareholders. All profit or loss passes to the shareholders. These shareholders must report this income, profit or loss, on their

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individual federal taxes. An S-corp does not pay federal income taxes, electing to be taxed under Subchapter S. To qualify for S corporation status, the corporation must meet the following requirements: •

Be a domestic corporation

•

Have only allowable shareholders o

May be individuals, certain trusts, and estates and

o

May not be partnerships, corporations or non-resident alien shareholders

•

Have no more than 100 shareholders

•

Have only one class of stock Not be an ineligible corporation (i.e. certain financial institutions, insurance companies, and domestic international sales corporations).

•

Sarbanes-Oxley Act – a federal law that established sweeping auditing and financial regulations for public companies. This statute protects investors from fraudulent financial reporting by corporations.

Satisfaction of Judgment – the complete discharge of obligations under a judgment; the document filed and entered on the record indicating that a judgment against a person or property has been paid.

Search Warrant – a judge’s written order authorizing law enforcement to conduct a search of a specified place and to seize evidence.

Search Incident to Arrest – also known as the Chimel rule, allows police to perform a warrantless search of an arrested person, and the area within the arrestee’s immediate control, in the interest of officer safety and the prevention of escape, It is limited to the area within arm’s reach of the defendant at the moment of their arrest.

Securities and Exchange Commission (SEC) – an independent federal administrative agency responsible for protecting investors, maintaining fair and orderly functioning of the securities markets, and facilitating capital formation Security – A financing or investment instrument issued by a company or government agency that denotes an ownership interest and provides evidence of a debt, a right to share in the earnings of the issuer, or a right in the distribution of a property. Securities include bonds, debentures, notes, options, shares, and warrants but not insurance policies, and may be traded in financial markets such as stock exchanges.

Self-Dealing – breach of fiduciary obligation in which trustee makes a benefit for him/herself instead of the trust.

Self Defense – also called “justifiable use of force,” an affirmative defense that asserts that the defendant used reasonable force to protect themselves or another based on a reasonable belief that they would suffer bodily harm from the attack of an aggressor.

Self-Proving Will – will with an affidavit of attesting witnesses attached.

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Seller’s Affidavit – a sworn statement signed by the seller stating that there are no existing liens on the property that would encumber the purchaser’s title.

Settlor – trustor who creates a trust with personal property.

Separate Maintenance – an award of money given from one spouse to the other for support during separation. It is similar to alimony or spousal support but it is not called alimony because the parties are legally married.

Separate Property – in community property states, the property owned by one spouse which he/she acquired: a) before marriage; b) by inheritance; c) as a gift; d) as an asset traceable to other separate property, such as money received from sale of a house owned before marriage; and e) property the spouses agree is separate from the marital estate.

Service or Service of Process – the formal delivery of legal notice, such as a pleading.

Severability – a provision in a contract which states that if parts of the contract are held to be illegal or otherwise unenforceable, the remainder of the contract should still apply.

Share – a definite portion of the capital of a company.

Sole Legal Custody – one parent has the sole responsibility for the health, education and welfare of the minor child(ren).

Sole Physical Custody – one parent has the sole responsibility for the day-to-day care and supervision of the minor child(ren).

Sole Proprietorship – an unincorporated business owned and run by one person with no distinction between the business and the person who owns it. The owner is entitled to all profits and responsible for all debts, losses and liabilities. There is no formal action required to form a Sole Proprietorship.

Special Warranty Deed – a deed in which the grantor covenants to defend the title against only those claims and demands of the grantor and those claiming by and under the grantor.

Specific Lien – a lien that is secured by a particular parcel of real property (e.g., special assessment lien).

The lienholder cannot go after other property of the debtor because the lien attaches to the real property itself and not to the debtor.

Specific Performance – grants a party to perform a specific act in order to complete performance of the contract.

Speedy Trial - the Sixth Amendment to the U.S. Constitution says that all criminal defendants “shall enjoy the right to a speedy and public trial.” The defendant must formally demand trial to enforce this right.

Springing Power of Attorney – power of attorney that takes effect in the future.

Spousal Support – financial payments made to help support a spouse or former spouse during separation or following divorce. Duration can be for a very specific time period and will automatically terminate

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upon a specific date, or it may be unlimited, terminating only upon the remarriage of the payee spouse or the death of the either spouse. Also called Alimony.

Spurious – lacking authenticity or validity in essence or origin; not genuine; false.

Standard of Proof – the degree or level of proof demanded in a specific case.

Stare Decisis – a previous decision made by the court which applies as precedent for similar cases until that decision is overruled.

State Courts – a court of the state judicial system, as opposed to a federal court.

State Disbursement Unit (SDU) – the single entity in a state that receives and distributes child support payments.

Statute – a law enacted by the legislative branch of a government.

Statute of Frauds – a statutory requirement that certain kinds of contracts must be in writing to be enforceable.

Statute of Limitations – deadline for filing a legal action set forth in federal codes and state statutes, which can vary from state to state and by type of action before he/she is forever barred from bringing an action in court.

Statute of Repose – the time limit in which a victim can bring a lawsuit for injuries against a manufacturer or seller in a products liability case calculated from the time of sale of the product.

Statutory Law – the body of law derived from statutes rather than from constitutions or judicial decisions.

Stipulate – a voluntary agreement between opposing parties.

Stock – capital raised by a corporation through the sale of shares that entitle shareholders to certain rights of ownership; the proprietorship element in a corporation usually divided into shares and represented by transferable certificates.

Stock Option – a benefit in the form of an option given by a company to an employee to buy stock in the company at a discount or at a stated fixed price these employees cannot trade their options, but can sell them back to the corporation. (NOTE: this does not apply to the Chicago Board of Trade, which is the world’s first and largest “options” exchange.)

Stock (Purchase) Warrant – a certificate allowing the holder to purchase a specific amount of stock at a fixed price (exercise price) for a specified time (exercise date).

Strict Liability – a concept applied in product liability cases in which a seller is liable for any and all defective or hazardous products which unduly threaten a consumer’s safety.

Subject matter jurisdiction – federal courts, under federal statutes, have subject matter jurisdiction over matters involving a treaty, bankruptcy, copyright, some discrimination matters, maritime, patent issues, federal constitutional issues, actions where the U.S. government is a party and cases involving diversity of

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citizenship.

Subpoena - a court order (or writ) commanding the person designated and served to appear in court under a penalty for failure.

Subpoena duces tecum - a type of subpoena that requires the witness to produce a document or documents pertinent to a proceeding. From the Latin duces tecum, meaning “you shall bring with you.”

Subrogation – the right of an insurer to institute suit in the name of the insured against the responsible party to collect for monies paid by the insurer to the insured.Substantial Presence Test – to be considered a U.S. resident for tax purposes (as a resident alien), to meet this test, you must be physically present in the U.S. on at least: •

31 days during the current year, and

•

183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting: o

All the days you were present in the current year, and

o

1/3 of the days you were present in the first year before the current year, and

o

1/6 of the days you were present in the second year before the current year.

Summons – a document in a civil suit that notifies the defendant that he/she must appear and defend (as by filing an answer) within a specified time or a default judgment will be rendered for the plaintiff.

Survey – the measuring of a tract of land to confirm and verify its boundaries and contents; a map indicating the results of such measurements.

Syndicate – a group of individuals or organizations combined to promote some common interest. For example, a commercial project that none of the syndicate members could finance alone.

Tacking – addition of possession periods by different adverse possessors.

Tangible Property – personal property that is movable or touchable.

Temporary Restraining Order or Order for Protection - an order of the court of brief duration that is issued ex parte prior to a hearing to provide an individual immediate protection from violence or threatened violence.

Tenancy by the Entirety – joint ownership of title by husband and wife, in which both have the right to the entire property and, upon the death of one, the other has title (right of survivorship).

Tenancy in Common – similar to joint tenancy. All tenants in common share equal property rights except that, upon the death of the tenant in common, that share does not go to the surviving tenant, but is transferred to the estate of the deceased tenant.

Terry Stop – based on U.S. Supreme Court case of Terry v. Ohio (1968), also called Stop and Frisk, permits a warrantless, temporary seizure and limited search of a person when a police officer has a reasonable suspicion that an individual is armed, engaged, or about to be engaged, in criminal conduct.

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The officer may briefly stop and detain an individual for a pat-down search of outer clothing. This is still a seizure under the Fourth Amendment but is an exception to the Fourth Amendment warrant requirement.

Testamentary Trust – trust created by will.

Testator – a person who dies, leaving a will.

Testimonium – last clause in a will.

Title – ownership of real property or personal property which stands against the right of anyone else to claim the property.

Title Insurance – policy issued by an insurance company guaranteeing that the title to a parcel of real property is clear and properly in the name of the title owner and that the owner has the right to deed the property (convey or sell) to another.

Title Search – the examination of county records for the property’s title history by a title company, an abstractor, attorney or escrow officer to determine the “chain of title” and the current status of title, including owner, legal description, easements, property taxes due, encumbrances (mortgages or deeds of trust), long-term leases, judgments or other liens.

Tort – a civil wrong against a person or property as defined by state or federal law.

Tortfeasor – one who commits a civil wrong; a wrongdoer.

Totten Trust – a revocable trust created by one’s deposit of money in one’s own name as a trustee for another; commonly used to name a successor to the account without having to create a will.

Trade Secret – Broadly speaking, any confidential business information which provides an enterprise a competitive edge. Trade Secrets consist of information and can include a formula, pattern, compilation, program, device, method, technique or process. To meet the most common definition of a trade secret, it must be used in business, and give an opportunity to obtain an economic advantage over competitors who do not know or use it.

Transmutation – a doctrine in property law which allows the conversion of a separate property interest into marital or community property by agreement between spouses and visa versa.

Trial – a formal judicial examination of evidence and determination of legal claims in an adversary proceeding.

Trustee – person who holds legal title to trust property.

Trustor – creator of a trust.

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) – a uniform act that specifies which court has the jurisdiction to decide a child custody case in which more than one state, tribe or territory is involved. It does not decide how the court should decide the case.

Uniform Commercial Code – a federal, legal code adopted by most states that codifies various laws

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dealing with commercial transactions, primarily those involving the sale of goods, both tangible and intangible, and secured transactions.

Uniform Interstate Family Support Act (UCCJEA) – A mechanism used in enforcing support orders made in the controlling state where the party resides or when the party moves away from the controlling state to a new state. UISFA is enforceable in all 50 states and U.S. territories.

Undue Influence – unlawful control exercised by one party over another puts the free will of one of the parties entering the contract into question Undue influence generally occurs in two types of situations. In the first, a person takes advantage of the psychological weakness of another to influence that person to agree to a contract to which, under normal circumstances, they would not consent. The second situation entails undue influence based on a fiduciary relationship that exists between the parties. This occurs where one party occupies a position of trust and confidence in relation to the other, as in familial or professional-client relationships.

Unjust Enrichment – an equitable principle that a person should not profit at another’s expense and, therefore, should make restitution for the reasonable value of any property, services or other benefits that have been unfairly received and retained.

U.S. Courts of Appeal – a federal appellate court having jurisdiction to hear cases in one of the 13 judicial circuits of the United States.

U.S. District Court – a federal trial court having jurisdiction to hear civil and criminal cases within its judicial district, also known as the court of original jurisdiction.

U.S. Supreme Court – the highest court in the U.S. legal system, also known as the court of last resort.

The justices of the U.S. Supreme Court are appointed by the President and approved by the Senate.

Variance – an exception to a zoning ordinance, authorized by the appropriate governmental body, such as a planning commission, zoning board, county commissioner or city council.

Venue – the locality of the court with proper jurisdiction to hear a case. In federal courts, venue is usually based upon where the cause of action arose or in the district where the defendant resides.

Verdict – a jury’s finding or decision on the factual issues of a case. Note: judges provide judgments, juries provide verdicts.

Victim – a person directly harmed as a result of the commission of an offense. In criminal cases, a victim can be a witness, but they are not a plaintiff or party to the prosecution and cannot file criminal charges with the court.

Visitation – access to a child granted to a parent who does not have physical custody of the child or has physical custody of the child less than half the time.

Void – never had any effect or force. Bigamous and incestuous marriages are considered void.

Void Contract – imposes no legal rights or obligations upon the parties and is not enforceable by a court.

A void contract is, in effect, no contract at all.

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Voidable – appears on its face to be valid but is later declared void. The legal defect must have occurred at the time of marriage. Fraud, force, physical incapacity and petitioner’s age at time of marriage are all examples of voidable marriages.

Voidable Contract – no legal force or effect on the grounds of fraud, mistake, misrepresentation, lack of capacity, duress, undue Influence or abuse of a fiduciary relationship. A contract that is based on one of these grounds is not automatically void, but is voidable at the option of the party entitled to void it.

Voir Dire – Anglo-French term: “to speak the truth.” A preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury.

Wage Withholding – a procedure by which automatic deductions are made from a person’s earnings or other income to pay a debt such as child support. Also called Income Withholding, Income Attachment, Income Assignment or Garnishment.

Warranty Deed – a deed containing one or more covenants of title, especially a deed that expressly guarantees the grantor’s good, clear title and that contains covenants concerning the quality of title, including warranties of seisen (an old, feudal term for having both possession and title of real property), quiet enjoyment, right to convey, freedom from encumbrances and defense of title against all claims.

Whistleblower – a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organization that is either private or public. An employee who brings the wrongdoings of his/her employer or other employee(s) to the attention of a government or law enforcement agency is protected from retaliation by federal statutes.

White Collar Crime – a crime committed in a commercial context by a member of the professionalmanagerial class or an officer of a corporation or similar business entity.

Will – document used to dispose of a person’s personal property after death.

Will Contest – legal challenge to the validity of a document presented as a will.

Winding Up – process of completing all unfinished business and transactions, paying off outstanding debts, distributing assets and dividing remaining profits after a corporation or partnership has been terminated or dissolved.

Writ of Attachment – a court order directing a sheriff (or other law enforcement officer) to seize property of a defendant which would satisfy a judgment against that defendant.

Writ of Execution – a court order to a sheriff to enforce a judgment by levying on real or personal property of a judgment debtor to obtain funds to satisfy the judgment amount (pay the winning plaintiff).Writ of Habeus Corpus - (“produce the body”) is a court order, sometimes simply called, habeus corpus, demanding that a public official (such as a warden) deliver an imprisoned individual to the court and show a valid reason for that person’s detention.

Zoning – the laws dividing cities into different areas according to use, from single-family residences to industrial plants. Zoning ordinances control the size, location and use of buildings within their different areas.

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