Law

Effective interviewing is one of the paralegal's most important skills. From the initial screening interview with a possible client to the potentially volatile one with a hostile witness, to achieve the best results, paralegals must have tact and sensitivity and be observant and flexible. Substantial preparation and the ability to improvise are also vital aspects of producing a successful outcome.

Civil litigation interviews serve many purposes, including evaluating the merits of a case at its onset and readying an expert witness for deposition. The paralegal's role is vital in that he or she often serves as a reflection of the capabilities of the entire legal team. Paralegals are, in effect, ambassadors for the firm. Other key elements of the paralegal's arsenal include understanding the meaning of privileged information, the capability to find and secure witnesses for deposition and trial, and knowledge of the rigors of investigating claims. This requires an appreciation for concepts as varied as ethical obligation and circumstantial evidence. In short, paralegals have an important role in the interview/investigative process. You should become acquainted with the many levels that expectation entails.

This resource provides instruction for users to:

• Choose appropriate checklists and other tools to document an interview with a client or witness
• Define the purpose of an interview with a client or witness
• Develop an interview strategy to include introduction, questions, signs of stress you will look for, and how you will make the client or witness more comfortable and cooperative
• Describe the appropriate environment, dress, and approach to use in the interview with a client or witness
• Apply the steps in preparing for an interview of a client or witness
• Analyze a sample interview to determine its strengths and weaknesses
  
• Identify material witnesses and potential witnesses in a case study
• Diagram a timeline of the incident Identify tangible evidence related to a civil case
• Identify the location of the incident
• Locate official reports relevant to a civil case
• Describe the Freedom of Information Act

Preparation for deposition day frequently falls squarely in a paralegal's lap. It may be a single event, perhaps with both parties and their attorneys, or it may be a complex series involving multiple witnesses that spreads over several days. Scheduling can be difficult because the paralegal needs to consolidate the required depositions as efficiently as possible to save time and money, while accommodating the time constraints of the parties, court reporters, videographers, and witnesses. Add the need for both attorneys to be on hand (except for depositions on written questions), and finding a suitable block of time that works for all participants becomes a scheduling nightmare.

As a requirement of due process, proper notice must be given to the court, the court reporter, and the opposing side. Also, witnesses must be served subpoenas and subpoenas duces tecum. In addition, the client and/or witnesses must be prepared for the first oral statement under oath. When the deposition is at last under way, the attorney takes center stage, which permits the paralegal to play a subtler role, observing the reactions of the opposing counsel and the party or the witness as questions are asked.

This resource provides instruction for users to:

• Summarize the use of different types of depositions
• Prepare a digest of testimony based on a deposition
  

Though winning a judgment is terrific, it is often not enough. A litigation firm must be particularly sensitive to the fact that despite a win, the case is not over until the money is in hand. Firms are more compelled to work hard for a case they feel has a good chance of a favorable outcome. This is especially true in a contingency case, in which the fee earned is contingent upon a positive result.

Paralegals are often a key component of the fee-collection process. If payment is not immediately forthcoming, paralegals must be ready to oversee adversarial measures, which will necessitate a keen understanding of the Uniform Enforcement of Foreign Judgments Act, the Fair Debt Collection Practices Act, and the various judgment implementation methods available. In addition, paralegals should also know the potential impact of a bankruptcy filing. After all the hurdles have been crossed and the judgment has been marked as satisfied in all the relevant courts, paralegals can reflect on a job well done—one that fulfilled the legal team's commitment to the client and assured the firm's compensation at the same time.

This resource provides instruction for users to:

• Outline the process of collecting and enforcing judgments
• Explain the statutory limitations on collection efforts
  
• Assemble case information into an organized case notebook
• Gather case information
• Prepare a judgment satisfaction document

Evidence is the information presented in court that enables the jury and the judge to decide a particular case. Evidence represents the facts or ammunition the legal team needs to prove or contest the matter at issue. It may be testimonial (live or otherwise), tangible, documentary, or demonstrative. Regardless of its form, the judge and the jury use evidence to decide the truth of an assertion, the existence of fact, and ultimately, whether the plaintiff has met the preponderance of evidence (burden of proof) necessary to establish the defendant's liability.

Paralegals should be aware of the rules that control the evidence a jury can hear and the exceptions to those rules. For example, the rule against hearsay forbids the use of out-of-court statements to prove the truth of a matter. These rules are designed to protect the integrity of the system and to ensure fairness and consistency in the courtroom. Paralegals must possess a keen understanding of the various types of evidence and, crucially, what constitutes admissibility or non-admissibility. The Federal Rules of Evidence and the applicable rules of your jurisdiction are invaluable in evaluating evidence and its applicability and admissibility. The rules of evidence can be somewhat complicated and are always subject to a court's interpretation; however, they are fundamentally logical and are absolutely necessary to master.

This resource provides instruction for users to:

• Differentiate between admissible and inadmissible evidence
• Summarize the Federal Rules of Evidence
  
• Determine the appropriate use for each type of evidence
• Recognize each type of evidence
• Select appropriate evidence to support a civil case
  

Two of the most frequently used methods of discovery are interrogatories and requests for production of documents. These methods are similar in that both are written requests to the opposing party and must be answered within a fixed period of time. They are addressed to parties, not to witnesses, in the lawsuit. Sometimes, however, documents or inspection permissions may be requested of nonparties through a subpoena duces tecum. An example of a nonparty request is getting hospital records directly from the hospital rather than from the party. Interrogatories and requests for production are vital to develop other lines of investigation and additional discovery requests. Remember that the questions asked in your interrogatory must be pertinent, specific, and well drafted to avoid leaving wiggle room for a defendant or witness who doesn't wish to reveal much.

The use of interrogatories and requests for production of documents can be a laborious exercise as you craft a set of questions that will eventually help you discover unknown information about the opponent and his or her strategy, evidence, and overall case strength. However, interrogatories and requests for production can also be viewed as an investigation that, if properly carried out, will eliminate sleepless nights worrying about any surprises at trial.

This resource provides instruction for users to:

• Describe documents used for discovery in civil cases
• Prepare an interrogatory
  
• Prepare a request for production

The pleadings (filing of the claim and its response), which tell the litigants and their attorneys what is at issue in the case, are the first step in any civil lawsuit. The next step is investigating the nature of the case and the evidence supporting the claims of the different parties. This investigation, known as discovery, encourages settlement, narrows the issues at trial, and allows for a resolution of the issues. Most paralegals spend the majority of their time on the discovery process, which is uniquely suited to their skills in organization, coordination, scheduling, and drafting of documents. Therefore, you will need to know the different kinds of discovery and the obligations the proceeding entails.

A comprehensive understanding of the concept of privilege, along with its attendant doctrines and exceptions, is also necessary. Discovery is designed to be a cooperative process among the parties. The paralegal's job will be to facilitate that process while simultaneously being on the lookout for any breakdowns along the way. Anticipation and prevention are important defenses against possible problems. A thorough knowledge of the precepts of discovery, including the applicable court rules, will serve as an indispensable guide for paralegals.

This resource provides instruction for users to:

• Prepare the information in a civil case that is subject to mandatory disclosure for the opposing legal team
• Describe the sequence and timing of discovery
• Describe the five forms of discovery
• Explain the work product doctrine and its exceptions and limitations
• Describe the difference between attorney-client privilege and common interest privilege
• Explain attorney-client privilege
• Define privilege Identify information in a civil case that is subject to mandatory disclosure Identify information subject to mandatory disclosure
  

or centuries, paper was integral to the legal profession and was once even specially sized to distinguish it as "legal." But those days are long past. Today, it is nearly impossible to avoid including electronically stored information in a discovery effort. Whether the documents sought were created electronically or were originally on paper and then converted into an electronic format for document management or trial presentation, digital media is now ubiquitous.

This places new and interesting demands on paralegals, who often play a vital role in discovery. You must be familiar with such technological terms and processes, such as auto coding, metadata, and filtering, and understand the issues inherent to e-Discovery, particularly with regard to privilege and client confidentiality. Efficient protocols are essential. Perhaps most important, the "tech" side of the law firm can no longer be isolated from the "legal" side. Without coordination, expensive equipment and software will be underused or misused, resulting in ethical or procedural errors that could cost the client dearly. Paralegals are the logical liaison and must foster the skills to manage this process effectively.

This resource provides instruction for users to:

• Outline the electronic discovery process
• Summarize the Federal Rules of Civil Procedure that apply to electronic discovery
• Identify ethical issues related to the electronic discovery process
  

Modern litigation involves manipulating hundreds or thousands of documents, photographs, and graphic displays. The legal team must scrupulously track, store, examine, evaluate, and index this massive amount of material. This process can be daunting unless the legal team, especially the paralegal, has sound organizational policies, practices, and methodologies to handle these items.

Preparing for trial creates additional case management challenges when handling such evidence as paper exhibits, trial graphics, briefs, demonstrative evidence, and a trial notebook. The digital age has streamlined the organization and management of civil litigation with many sophisticated new tools. Similarly, it has had a major impact on office management and legal research. The traditional binder notebook has evolved to become the electronic case management system. Specialty software has been designed to address specific aspects of civil litigation and law office management. Finally, the Internet and online legal research databases greatly support the diverse roles paralegals play during the litigation process.

This resource provides instruction for users to:

• Identify the components of a case notebook
• Describe various types of case management software
  
• Build a timeline to track deadlines throughout the case management process
• Describe various types of case management software

Initial pleadings are based on fairness and are designed to give the responding party notice that the suit has been filed, the nature of the alleged wrong, and the claims for relief. To effectively serve the client, pleadings must conform to the most recent state or Federal Rules of Civil Procedure and to local rules of court. The pleading stage of litigation is when paralegals gain significant knowledge and experience regarding the rules of civil procedure.

Paralegals must also perfect their legal research skills to help determine the correct legal claim or defense to be presented. In addition to determining the correct substantive law, paralegals must be acutely aware of the procedural guidelines. These guidelines include the statute of limitations and the timely filing of several documents, including the service of complaints and responsive pleadings. By providing you with the most important documentary rules, you should gain an appreciation for due process, which gives both the client and the adversary the right to notice and the opportunity to be heard.

This resource provides instruction for users to:

• Describe the purposes of the types of pleadings often required in civil cases
• Describe the components of a complaint
• Prepare a summons for a civil case
• Prepare a notice pleading complaint for a civil case

The trial is over, and the prevailing party is happy with the result. Unfortunately, there's still work to be done. The winner still needs to conclude litigation by taking steps to obtain fees and costs. If the prevailing party has been awarded damages, procedures must be followed to obtain the judgment. The losing party is not done either and may challenge the judgment in three ways: by attempting to change it, by trying to obtain a new trial, and/or by appealing the judgment to a higher court.

The issues in play, the necessary timing, and the limitations of appellate court review are all important considerations, as are the opportunities and constraints offered by the appellate process itself. Paralegals can assist in post-trial procedures by tracking the rules for different courts (federal, local, neighboring) and judges and making sure the proper formats and sections are included in court documents. The need for proper formatting and citation skills makes the management of court documents an ideal task for paralegals. Post-trial activities have different requirements than those leading up to a final judgment. But "different" does not imply that these procedures are any less important.

This resource provides instruction for users to:

• Outline the civil case appeal process
• Prepare a post-trial motion
  

While the commencement of a civil litigation suit is the culmination of a great deal of preparation for the plaintiff, it is just the beginning for the defendant. A defendant must decide whether to take the offensive by preparing a motion to dismiss or to answer the complaint. For example, if a plaintiff has brought a cause of action based on negligence, the defendant's legal team will need to determine if defenses—such as assumption of risk or contributory negligence—apply.

The team also has to weigh the applicability, and sometimes necessity, of counterclaims, cross-claims, and/or third-party complaints. The entire legal strategy must be put into place while the clock is ticking. Paralegals may be placed in the role of case manager for the litigation process. The case manager is responsible for tracking the deadlines for pleadings so the client's case can be appropriately planned to yield the best possible strategy.

This resource provides instruction for users to:

• Describe the components of an answer to a complaint
• Prepare an answer to a complaint
  

Most civil litigation actions never get to trial. Trials are expensive, time-consuming, emotionally draining, and notoriously hard to predict. So many parties choose to cut their losses (or gains) early and settle. Case settlement is achieved through informal negotiations or alternative dispute resolution (ADR). Although attorney-led and judge-led negotiated settlements are the most common form of pretrial resolution, neutral third-party ADR options—such as mediation and arbitration—are popular alternatives.

To further keep the costs down, paralegals have become central to the settlement process. Large arbitration and mediation organizations, for instance, frequently use paralegals as case managers. Law firms often rely on paralegals to help determine direct and indirect costs of a case and to be information conduits and guardians of confidential materials. In sum, case preparation is often settlement preparation. In fact, although some minor variation exists in the types of information and presentation required when heading for a settlement rather than a trial, thorough trial preparation is the surest way to achieve a satisfactory settlement on behalf of your client.

This resource provides instruction for users to:

• Outline the types of alternative dispute resolution often used in civil cases
• Identify the damages relevant to a civil case
• Describe the settlement documents commonly used in civil cases
• Prepare settlement documents for a civil case
  

Civil litigation is a legal dispute that involves a civil wrong, such as personal injury or breach of contract. It differs from a criminal action, which is brought by the government on behalf of its citizens to address a transgression that violates the penal code. A civil lawsuit generally comes to court after negotiations have failed to resolve the matter.

Paralegals are integral to the civil litigation process as a member of a team of legal professionals who investigate, research, and advocate the client's cause. You should become familiar with the typical members of that team, focusing particularly on the paralegal's role. The complexities of civil litigation demand a lot from paralegals. An understanding of the basic requirements will help prepare you for that role. Recognizing the way that paralegals fit into the team will make the entire litigation process more efficient.

This resource provides instruction for users to:

• Define the primary role of each member of the legal team
• Identify typical members of the legal team
• Explain the rules governing paralegal participation and certification in your jurisdiction
• Describe the role of the paralegal in various legal environments
• Outline the tasks typically performed by paralegals in civil litigation
• Summarize the ethical rules governing civil litigation in your jurisdiction
• Apply ethical rules governing civil litigation in your jurisdiction to a case study
• List the types of skills required for a litigation paralegal
  

More than 90% of all civil litigation is resolved before trial. The more prepared the parties are for trial, the less likely the case will get there. Preparation ensures familiarity with both the law and the facts, which leads to an objective assessment of the case's strengths and weaknesses. Preparation means compromise is more likely because fundamental issues have been fully researched. Therefore, preparation can help just as much in avoiding a trial as it does in proceeding with one.

Sometimes, however, your case will fall in the 10% that go to trial. You'll need a working knowledge of the entire trial process, including motions and legal memoranda, scheduling, and docket issues, including jury challenges, the entry of judgment, and the actual trial. In addition, paralegals must be aware of how and when their skills fit into the trial process. Paralegals often have multiple responsibilities during trial, including creating the jury chart, handling evidence, and quickly producing impeachment material if the occasion arises. In addition, they will likely be expected to perform specific tasks, such as assisting the witnesses and overseeing exhibits. Paralegals should always be thinking ahead in the process to assist with the unexpected and upcoming events in the litigation process.

This resource provides instruction for users to:

• Outline the process of a civil case trial
• Prepare a summary of an evidentiary issue presented as a motion at trial
  

The period after discovery and before the trial commences is by no means idle, even though the discovery deadlines have passed and that phase has slowed. Preparing the trial notebook, keeping witnesses on their marks, researching for pretrial memoranda and trial briefs, obtaining subpoenas, and preparing for electronic trial presentations all require diligence on the part of the paralegal. One often-overlooked part of this preparation is familiarity with the presiding judge. Knowing a judge's proclivities and preferences can help the legal team assess matters as disparate as the correct approach for the trial brief to the management of witness availability.

Paralegals can be an important resource in this regard. As the trial date draws near, your research and organizational skills will continue to be relied upon. The trial notebook must be updated and ready for the supervising attorney's review. Witnesses must be properly briefed and acclimated. Perhaps most important, paralegals must be fully prepared to effectively manage the unexpected, such as a malfunctioning PowerPoint presentation or an overwhelmed client. Grace under pressure could be the case's defining moment.

This resource provides instruction for users to:

• Describe the types of facts commonly presented in civil trials
• Summarize the legal issues involved in civil trials
• Describe the components of a pretrial memorandum
• Compose a memo to an attorney
• Summarize an issue related to a civil case
• Identify the elements of a trial brief