When civilization took the step of having judges or local authorities decide matters of dispute, and people stopped using axes and guns and fists to settle their differences, the lawsuit became the way to formalize this battle. Some may frown on analogies to wars, but in fact that is what disputes would become without litigation. Since litigation is the main focus for a great percentage of paralegals in the country, it is important for all paralegals to understand the anatomy of a lawsuit, from initial interviewing, investigating, and fact finding, to the preparation of demand letters, complaints, and initial discovery, to the flurry of responsive pleadings, answers, and cross-complaints, to discovery motions, depositions, exhibit preparation, and trial preparation. A paralegal can be involved from the first interview to appeal.
Ideally, the paralegal is brought in as early as possible in the case. The reality is that when you are hired, cases will be in all stages of maturity: just beginning, just ending, somewhere in the middle. It is always important therefore to emphasize qualities like "fast learner" or "quick study" or "eager to learn new material" during the job interview.
Interviewing and Investigating
The initial phase of a lawsuit is spent gathering information, finding facts, determining issues, and orienting the dispute. You sit down and determine all the potential sources of information and evidence. Places, institutions, names, addresses, businesses, and locations will become paramount as you begin to create a fact pattern of information. Paralegals in the beginning of a lawsuit will contact hospitals, law officers, public entities containing records (from heating bills to criminal records), secretaries of state, county sheriffs, attorney generals' offices, businesses, individuals, and any person or entity which could hold information or evidence. Recordkeeping, tracking details, and following through are all important talents to emphasize during the interview.
Skip tracing (the act of finding people who don't want to be found) and directory searching are good skills to have. Fill your Rolodex with phone numbers. In the beginning, get help from fellow workers. Remember, you do not have to reinvent the wheel-people in your firm will have done investigation before, so use them as a resource.
Early on, think about how you will number and classify your case documents. Look at some old case files and study how they have been organized and broken down. Use old systems if they work well. Do not be too much of a pioneer when it comes to file organization systems, but at the same time, if you are in charge and responsible, make your system as effective as possible.
Begin Summaries, Memos, Chronologies, and Docketing Systems There is nothing more visually effective than an early layout or graphic display of a case to give you a grasp of the issues and facts. Do not get too fancy or spend extra money unless requested to, but formalizing and ordering information in outlines, chronologies, simple graphs, and diagrams is a professional and thorough way of grappling with a new case.
Become familiar with your state's rules of civil procedure and discovery. If your firm has a computerized docketing system, insert your case into that system and keep your own docketing file for the case. Go through the complaint and the answer and determine the initial deadlines.
As discovery orders are established, enter those dates on your docket; as motions are filed, enter response dates and dates for replies when necessary. Docket for your side and the other side. You should know when they are late! And you most certainly should prevent your side from making late filings by way of friendly memos. An organized paralegal will draft a memo once a month just to verify and confirm dates. When is a supreme issue in the law. Recording when, and knowing when changes, and recording and knowing the new when, all fall to the paralegal. Certainly attorneys are endlessly concerned about when, but this is an area in which you as a paralegal can shine. In litigation, "when" is as important as "what." From statutes of limitation to filing appeals, "when" is always entwined in the story line, and you as a paralegal are in the middle of the whole scheme.
As the file grows and the case proceeds, write, send, and file status reports on a regular basis. You will keep yourself up on the case as dates, times, and issues arise. Status reports will keep you continually aware that "the wheels of Justice grind slowly, but they grind exceedingly fine." The pace of the law is like an ax grinding grain on a stone. When things are quiet, it can be downright dull. But when a deadline arrives, you must be the one ringing the bell.
Research and Writing
Your oral presentations (interviews and phone contacts and networking) are statements about you, your professionalism, and your education. In much the same way, your memos, correspondence, reports, and drafting all reflect upon you. People form strong negative and positive images of others before they meet them, by way of their work product. Take care to write clearly and well. Organize your thoughts. Do not carelessly frame your written communications. You will be judged by them.
Hopefully, you will be involved in the formulation of the discovery plan. With new rules of discovery on the scene, be aware of local adaptations and permutations in your state and understand the rules regarding discovery. You will be asked to assist in the preparation of requests for admissions, production of documents, interrogatories, and discovery motions. You will certainly be involved in organizing, assembling, reviewing, and labeling documents pertaining to these matters.
Create witness files, and file every single communication you have with those witnesses in those files. Paralegals are often asked to meet with clients and assemble all client documents. It is at this time when you will get a look at privileged documents and documents that will fall under relevancy questions.
As documents are produced you will see an astonishing array of filing that will automatically be created. New rules are designed to simplify document production and discovery issues, but it still lies at the paralegal's door to know:
- What documents came to us from them and when
- What documents were not sent to us when requested by us
- What documents were sent to them and when
- What documents were not sent to them and why
- What further information would be important to know
Depositions are complicated because you are attempting to stage pretrial get-togethers in which everyone must be represented. Depositions are crucial because they can be used as evidence, and they can be fraught with tension. But when someone does not show up, the pretrial get-together must be canceled, and everyone is irritated. So there is much work for the paralegal here. First, the initial work is all on the phone. Everyone must agree on times and places and participants. Then
- Prepare subpoenas and notices of deposition
- Help draft potential deposition questions
- Attend depositions (if requested) and take notes
- Get copies of depositions and summarize them according to firm/attorney format
- Follow up on need for depositions with attorneys as deadlines approach
If interstate travel is involved, all of these previous points become even more problematic. Logistics is everything with depositions. Remember: Original Depositions must be kept and filed for potential use in trial.
In the pretrial phase, paralegals start to really earn their keep. Pressure builds to focus on key testimony. Perhaps last-minute depositions need to be summarized. Summaries of key witness testimony may be demanded and an initial trial exhibit list will be forming from deposition exhibits, affidavits, expert witnesses, and interviews. The paralegal becomes deeply involved with filing Disclosure Certificates and Trial Data Certificates (pretrial certificates), and could be attending hearings, conferences, and settlement meetings. If so, you will be taking notes and, later, preparing follow-up materials.
The preparation of special demonstrative exhibits often falls to paralegals. At this time, many duties fall to you. Attorneys count on paralegals to stay in touch with clients and take care of loose details and follow-up items. They look to them for advice about the psychology of certain approaches in testimony, or exhibits, or lines of argument. Often they are not looking for an "expert's opinion" as much as for a fresh (but informed) point of view. Remember that you will be relied on to be a professional and a steady force as trial nears.
Trial Notebooks and Trial Exhibits
These special areas of strong paralegal activity are a "work in progress" all the way up until deadline. You must be sure to prepare them with care and according to instruction-this is no time for Amateur Hour. Assemble them with all of the best office materials you can get.
Trial notebooks are intended to be an outline of the sequential presentation of the case. Attorneys will tell you what should go in, but you should be armed with your hosts, indexes, and summaries so that you will be able to help. Paralegals exhale with fatigue when the subject of trial notebooks comes up, not because they are intellectually impenetrable masterpieces, but because the time issue is most always involved, and then along with that there are sudden changes. These two elements make the paralegal's role very important. Be assured that the firm notes the effort that goes into late night episodes and shortened or obliterated lunch (and dinner) hours. (Overtime in many cases is paid in these situations.)
Settlement or Trial
Your responsibilities in trial will vary widely. Some paralegals enjoy "second chair" kinds of responsibilities. Some are not involved at all. If you do get to participate in a trial, prepare yourself emotionally. Be ready to concentrate and to experience intense feelings. Some trials can be tedious, but others can really be the fulfillment of months of anticipation.
Remember, all of these litigation processes can be arrested at any time by a sudden settlement. The build-up before trial is exhausting for all concerned. Mentally, emotionally, physically, and psychologically you become geared up. The whiplash that a settlement can cause on trial preparation momentum is tremendous. If settlement does occur, you will not be left without work; they may have you assist with the settlement agreements and releases, and work on stipulations and motions. But all through the litigation process, settlement talk can be heard:
- "There's no way this is going to settle."
- "I can't believe they won't settle."
- "What I could do with half a million."
This kind of talk should not keep you from preparing like you are going to have to go to trial when it is scheduled. At trial, if you are given a full complement of assignments, you will be involved in all or parts of the following:
- Subpoena preparation
- Voir dire assistance
- Jury instructions drafting
- Witness and expert "stage management"
- Taking notes and tracking of exhibit numbering and rulings during trial
- Meetings about strategy and witnesses
Though not all paralegals can sit "second chair" at a trial, there are those who have done so, and the drama can be truly stimulating. The whole process of being involved in a trial from pre-complaint days to post-trial and appeal can take years and hold a bundle of exciting memories and unforgettable images.
Post-trial Sometimes you can feel that a case will never go away. The appeals process can truly give you that sense. You should be prepared to summarize trial testimony from your notes, help with post-trial motions, and work with the bills and costs.
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