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News Briefs: March/April 2008

Below are some of the latest happenings in the paralegal community. These short snippets represent excerpts of stories that can be found in the March/April 2008 issue of Legal Assistant Today.

 

Got News? - Do you know of a significant new law under consideration or recently passed in your area? Are you aware of changes to rules or codes that significantly impact the work done in your specialty area?

If so, we want to hear from you. If you submit an original news lead that turns into a news story that we print in Legal Assistant Today, we will pay you $25. If you have a original news lead that you think we would like to hear about, e-mail us.

 


U.S. Supreme Court to Hear Paralegal Fees Case

Decision will affect how fees are determined in cases against federal agencies.

By Tommy Sangchompuphen

 

Paralegal fees are once again up for discussion in the United States Supreme Court, with the Court’s Nov. 12 decision to hear the Richlin v. Chertoff case. The issue before the Supreme Court’s  nine justices in the Richlin case is straightforward: Under the Equal Access to Justice Act, can a prevailing party be awarded fees for paralegal services at the market rate for such services or should such reimbursement be limited to the actual cost incurred by the attorney?

The decision by the Supreme Court will affect how EAJA fees are determined in cases against all federal agencies. In general, the EAJA provides that “fees and other expenses” are awarded to eligible parties who have prevailed in administrative adversary adjudications and in litigation against the federal government, unless the agency adjudicator or court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

In Richlin, employees of Richlin Security Service Company were underpaid because of mistakes in contracts between Richlin and what was then the Immigration and Naturalization Service. Following lengthy proceedings before the Department of Transportation Board of Contract Appeals and the Court of Appeals for the Federal Circuit, the Board awarded Richlin the amount of the additional wages, payroll taxes and workers’ compensation premiums that the company was required to pay.

In January, the National Association of Legal Assistants was permitted by the Supreme Court to file an amicus brief in the Richlin case regarding the role and qualifications of paralegals in modern law practice. This is the third time NALA has appeared in front of the Supreme Court as an amicus party, having filed amicus briefs  in two previous cases: Blanchard v. Bergeron, 489 U.S. 87 (1989) and Missouri v. Jenkins, 515 U.S. 70 (1995). Both cases  dealt with the issue of awarding paralegal fees in civil rights cases under 42 U.S.C. §1988. In Blanchard, the court reserved “for another day, the question of whether legal assistants’ fees should be included in the attorney fee award.” In Missouri, the court held that paralegal time can be billed at market rates, which encourages  the use of paralegals in the practice of law and therefore the cost-effective delivery of legal services. The court concluded that when “the prevailing practice is to bill paralegal work at market rates, treating civil rights lawyers’ fee requests in the same way is not only permitted by §1988, but also makes economic sense.”  

Oral arguments in Richlin are set for March 19, with a decision expected by the end of June.

 

For updated information, please see the following article: “U.S. Supreme Court Decides Richlin Case,” July/August 2008.

 


Delaware Case Examines Overtime Compensation

Classification of paralegals once again is in the spotlight.

By Ursula Furi-Perry, Esq.

 

Should paralegals be classified as non­exempt employees and receive overtime compensation? This question has plagued the paralegal profession for years, and once again it’s in the spotlight as part of the legal issue presented in Wersinger v. Bank of America, a pending case in the United States District Court for the District of Delaware.

William Wersinger, who worked as a non­exempt paralegal for Bank of America from November 1989 to November 2006, filed a suit against his former employer on May 15, 2007, in Delaware for overtime compensation he says he is owed but never received. In the official complaint, Wersinger claimed he was not paid overtime compensation for regularly working more than 40 hours a week. He also claimed that there were times when he worked unpaid through meal periods and at mandatory off-site company events, and he was not compensated for performing at least six hours per month of nonexempt work in the bank’s customer service area. According to the complaint, Wersinger requested compensation in the form of owed overtime, penalty or liquidated damages, and also asked the court to allow the case to proceed as a class action, which would affect current and former employees of the bank.

The case taps into a long-standing debate: whether paralegals and legal assistants are considered non­exempt employees and should receive overtime compensation, or whether they are considered exempt employees and therefore are not entitled to overtime pay. Under the federal Fair Labor Standards Act, all employees are entitled to overtime compensation unless they are exempt as professional or administrative employees, explained Frederick T. Golder, attorney and labor law professor at the Massachusetts School of Law at Andover in Andover, Mass.

Bank of America commented on the pending litigation in a statement via e-mail on Feb. 4 from Shirley Norton, a media relations specialist for Bank of America, based in San Francisco. In the e-mail, Norton stated, “The class [action] claims brought against the Bank have been dismissed, and plaintiff is proceeding with this case solely on his own behalf. The Bank is continuing to contest the validity of the plaintiff’s wage claim asserted under federal law. The parties are currently engaged in discovery.”

Whether Wersinger has any definitive effect on the paralegal profession will depend on whether the court will treat it as an individual case or opt to define paralegals’ status as a whole under the FLSA. Either way, Lebau has already noticed effects from the case. “Since the complaint has been filed, paralegals from all over have been contacting us,” he said. “And we are considering other cases.” One thing is for sure: The entire paralegal profession is keeping a close eye on the Wersinger case.

 


Attorney-Client Privilege Protection Act Moves Forward

If passed by Senate, bill would safeguard corporate communications.

By Lois Fiorelli

 

On Nov. 13, the House passed the Attorney-Client Privilege Protection Act, a bill that would prohibit prosecutors from coercing corporations into waiving the attorney-client privilege between a company’s board members or its employees and in-house counsel. The ACPPA is now pending in the Senate Judiciary Committee and, if passed by the Senate, would change the way government agencies, in particular, obtain information.

Sen. Arlen Specter, R-Pa., who has a background in constitutional law, introduced the bill, S.186, in the Senate on Jan. 4, 2007, and Rep. Bobby Scott, D-Va., who is known as an advocate of the Constitution and Bill of Rights, introduced an identical bill, H.R. 3013, in the House on July 12, 2007. In a July press release, Scott stated, “When government agencies use tactics that violate Constitutional rights, it is time for Congress to act.” According to the press release, the Department of Justice and other federal law enforcement agencies have written policies instructing enforcement officials to bring charges against uncooperative companies. Those policies label companies uncooperative if they refuse to turn over confidential communications between employees and company lawyers, in violation of traditional principles of attorney-client privilege. “Whether the defendant is a corporation or an individual, basic Constitutional rights are the foundation for fairness in the criminal justice system,” Scott said. “Forcing a defendant to bargain them away undermines that fairness.”

The ACPPA has many supporters, including the Association of Corporate Counsel, which serves the professional needs of attorneys around the world who practice in the legal departments of corporations and other private sector organizations. Susan Hackett, ACC senior vice president and general counsel in Washington, D.C., expressed her opinion in a statement issued shortly after the House approved H.R. 3013. “This is an issue of correcting errant prosecutorial behavior,” she said. “There is nothing in this bill that prevents the DOJ from prosecuting whomever it wants and using all the tools in its arsenal to conduct an investigation, get to the truth and prosecute the guilty. Instead, this bill demands that the DOJ play fair in doing so.”

At press time, the Senate Judiciary Committee was not expected to vote on the ACPPA before spring. If the committee approves the ACPPA, then it would move on to the Senate for a vote.

 


Women in eDiscovery

National organization supports education and networking in legal technology.

By Tommy Sangchompuphen

 

For Women in eDiscovery — an educational and networking organization for women who are interested in the use of technology in the law — building friendships and networking opportunities at chapter events is perhaps one of the main reasons why the organization has grown so quickly. Less than a year ago, the all-female organization started out as just an idea tossed around at a Washington, D.C., coffee house. Now, Women in eDiscovery has 13 local chapters and about 1,000 members across the United States, plus one international affiliate. “The feedback we’ve had so far has been tremendous, even from our male colleagues,” said Shawnna Childress, co-founder of Women in eDiscovery and director of business development, national accounts, with Encore Legal Solutions in Atlanta. She said what initially began as informal meetings at Starbucks finally transitioned into Women in eDiscovery when the first chapter meeting was held May 2, 2007, in Washington, D.C. Childress added that about eight additional chapters, including St. Louis, Miami, Los Angeles, Seattle, Cleveland and Toronto, are slated to hold their first meetings in 2008.

Childress, along with co-founders Lana Schell, J.D., a managing consultant for Intelligent Discovery Solutions based in Washington, D.C., and Margaret Havinga, assistant director of litigation support for the Washington, D.C., office of Williams & Connolly, decided to create Women in eDiscovery after finding that there were not a large number of women in their own profession with whom they could share experiences, advice and networking opportunities.

Specifically, the mission of Women in eDiscovery is to bring together business women interested in technology related to the legal industry and to provide them with opportunities to help themselves and other women in the industry grow personally and professionally through leadership, education, networking support, and national recognition. Its goals are to bridge the knowledge gap for women between old technology and future trends, as well as to establish a strong communication network among women whose day-to-day lives are affected by legal technology. However, discussion and education won’t be limited only to e-discovery, despite the group’s moniker. Instead, Women in eDiscovery will address all facets of legal technology.

In October, Women in eDiscovery organized a panel discussion titled, “Litigation Readiness: Reining in Your eDiscovery Costs (How to Save Millions)” at the Masters Conference in Washington, D.C., an annual 2-day educational conference focusing on e-discovery. A roster of female e-discovery experts came together for a discussion focused on cost containment tactics, use of contract review attorneys, and preferred vendor programs.

For 2008, Childress indicated that Women in eDiscovery will again be involved with national seminars like the Masters Conference, and continue to hold monthly meetings and educational luncheons at each of the local chapters. Paralegals interested in finding a local chapter or learning more about Women in eDiscovery can go to its Web site at www.womeninediscovery.com.

 

 

Analyzing Mother Earth

Two law firms join online Environmental Law and Climate Change Center to
address emerging legal issues.

By Ashley Johnson

 

As the increasing role of climate change and the environment in law becomes more apparent, so, too, will be the need for timely, relevant information. Ready and willing to address this issue are The Marten Law Group and Jenner & Block, two law firms at the forefront of environmental and climate change issues and hand-picked by LexisNexis to provide content for its online Environmental Law & Climate Change Center, launched Dec. 4.

The center joins LexisNexis’ Insurance Law Center and Torts Law Center, both launched in 2007, to provide professionals in the legal and business fields with accessible information on emerging issues. “Lexis has a rich heritage of providing analysis to help lawyers and business people address issues according to enacted laws,” said Molly Miller, vice president of product strategy at LexisNexis in San Francisco. “We also really have a responsibility to provide legal and business professionals with analysis of the legal implications of emerging issues and developments.”

Visitors to the online center, such as lawyers, paralegals and legal staff, as well as executives, CEOs, and CFOs from corporations and businesses of all sizes, can expect to find information and analysis about policy and legislative legal developments that relate to environmental law and climate change at the local, state and national levels. “[The center] tries to provide [visitors] with current information about developments in the regulatory area, legislative area and court decisions, and brings the most important decisions in front of [visitors],” said Brad Marten, founder of and partner at The Marten Law Group in Seattle.

Summaries of articles, industry news, expert analysis and other resources are available at the center’s Web site at http://law.lexisnexis.com/practiceareas/ environment-climate. While the center provides partial text of the articles for free, only LexisNexis customers have access to complete content.

At press time, LexisNexis had plans to launch similar practice centers in 2008, including centers for corporate law, international arbitration and bankruptcy.

 


Paralegal Salaries Continue to Increase

Robert Half Legal projects moderate compensation growth in its 2008 salary guide.

By Ursula Furi-Perry, Esq.

 

In the coming year, paralegals can again expect to see increases in their salaries, according to the 2008 Salary Guide released in October by Robert Half Legal, a nationwide legal recruiter based in Menlo Park, Calif. The guide projects that salaries for paralegals employed by large law firms are expected to climb by as much as 4.3 percent, from an average of $55,750 to $78,250 in 2007 to an average of $57,750 to $82,000 in 2008.

Salary growth also is projected for paralegals working in certain specialties, including litigation, corporate law, intellectual property, and real estate, according to Charles Volkert, executive director for Robert Half Legal. “We are continuing to be optimistic that salaries will continue to grow in the legal field, especially in high-demand practice areas such as litigation, intellectual property and corporate compliance,” Volkert said.

According to the guide, increases in salary also are expected to vary based on the size of the law firm. For example, senior paralegals at large firms are expected to see their salaries grow 4.3 percent, to between $55,750 and $82,000. Paralegals with the same experience working at midsize or small firms can expect to see only a 2.9 percent increase, to between $46,000 and $60,500. However, senior in-house paralegal salaries are expected to grow 4 percent. In 2007, salaries ranged from $51,000 to $74,000, but in 2008, the range is expected to be $52,500 to $77,500.

When looking at salary surveys, it’s important to ensure accurate reliance on the data. Both paralegals and employers should look at a variety of salary surveys because each one uses different methodology and data sources, noted Carolyn Hilgers, director of paralegal services at King & Spalding in Atlanta and immediate past president of the International Paralegal Management Association. “Paralegals and students need to make certain that each survey they review is using the same data before relying on one survey,” Hilgers said. “For example, an average salary is not that helpful unless the years of experience, location, size of firm and specialty are included in the data. It is helpful to know as much as possible about the organization that responded to the survey so the user of the survey can assess the accuracy, again looking at the size of the firm or organization, years of experience, region or city and specialty.”

Results in the 2008 salary guide are based on temporary and permanent placements made by Robert Half throughout North America. In addition to para­legals, the report also surveyed attorneys; employees who hold legal management, corporate, and legal administrative positions; legal secretaries; and legal specialists. The guide can be obtained for free at www.roberthalflegal.com.

 


A New Paralegal Division Emerges

North Carolina Association of Defense Attorneys creates a new paralegal practice group.

By Ben Ritter

 

With the creation of a paralegal division by the North Carolina Association of Defense Attorneys in October 2007, legal assistants in the Tar Heel State now have access to new tools previously made available only to attorneys. “[The paralegal division is intended to] equip paralegals with the exact same info as the attorneys have,” said Michelle May, NCCP, the division’s first chair and a paralegal with York Williams Barringer Lewis & Briggs in Charlotte, N.C. “The division is different [from other paralegal divisions],” May added. “It’s basically a practice group under the NCADA, not a separate entity.”

NCADA, formed in 1977, has eight practice groups in different specialties, such as commercial, employment, medical malpractice and workers’ compensation. The practice groups help the association accomplish its goals and encourage members to become active in the association’s events. When paralegals become members of the division, they also can join the different practice groups, opening the door for access to materials and communications specific to areas of law that interest them. Other benefits of joining the paralegal division, which already is 35 members strong, include access to the division’s Web site, networking and education. “The NCADA has been in existence for some time and truly is a phenomenal organization,” said Lisa Hite, who was the first member to join the paralegal division in October, and who, like May, is a paralegal with Morris York Williams Barringer Lewis & Briggs in Charlotte, N.C. “As a member of the paralegal [division] of the NCADA, there are numerous opportunities to interact with other members — both para­legals and attorneys — who enhance our careers by sharing the utmost innovative methods, law and technology with us.” In addition to receiving its publication, The Defender, NCADA offers its members opportunities to attend its annual meeting and fall seminar, both of which can be viewed online by members.

The NCADA’s paralegal division hopes to have up to 150 members by the end of the year and already has started a “buy four, get one free” plan that allows a law firm to purchase four paralegal division memberships with the fifth paralegal membership free.

 


Legal Resources

 

Real Estate Learning

“Real Estate Law for Paralegals” by Curriculum Technology, published by Higher Education McGraw-Hill, offers information on real property and person­al property and also includes exercises, cases and hands-on learning assignments on topics such as “Regulations and Encumbrances,” and “Recording Statutes and Examinations.” One chapter solely covers real estate closings. A new feature called “A Day in the Life” includes interview excerpts from paralegals who work in the field, including why they chose a real estate specialty and what they do on a daily basis. The “Eye on Ethics” feature raises ethical questions and situations attorneys and paralegals face and then asks the reader to reference rules governing these issues and make a decision. The book is available for $82.33 at www.mhprofessional.com.

 

New Media

Paralegal Services USA, a freelance paralegal business formed in 1986 by Dorothy Secol, CLA, and Peggy Stalford now offers free, downloadable podcasts on its Web site. Currently available for download is “Ethics and the Workplace,” by Secol. For more information, visit www.paralegalservicesusa.com/podcasts/podcasts.html.

 

Tuff Case

Tuff Pockets by Smead are file pockets that can hold 1,500 single-file pages, or three reams of paper. With five different expansion widths, from 1 3/4 inches to 7 inches, Tuff Pockets are designed for growing projects. Additionally, the pockets are built with heavyweight, double thick front and back panels, side gussets lined with Tyvek, and a hidden rollover reinforcement strip across the front and back panel. For more information, visit www.smead.com/tuff.

 

PDF Plug-In

The free Swiftwriter Plug-In by Omtool integrates Adobe Acrobat and Adobe Reader, Versions 6, 7 and 8, with document management systems. A toolbar icon with a “save-to” command lets users save PDF files directly to programs such as Open Text Hummingbird, Interwoven, Microsoft SharePoint and WorldDox. Additionally, users can connect to the document management software server; enter appropriate indexing, description and profiling information; and store the PDF file in the current location in the document management program. The plug-in is available for download at http://www.omtool.com/Swiftwriter-Plug-In-NR.

 

Cite and Sound

“Cite-Checker: A Hands-On Guide to Learning Citation Form,” Second Edition, by Deborah E. Bouchoux, Aspen Publishers, explains in detail concepts in cite-checking, and offers self-checking exercises. In addition to exercises, the book explains the rules established by “The Bluebook.” Preparing tables of authorities for briefs and court documents also is covered and the chapters follow a step-by-step format. The book has a chapter covering administrative and executive materials, electronic databases, the Internet, record materials and court documents, and public domain citations, as well as a chapter covering punctuation, quotations, omissions, alterations and parentheticals. The book is available at www.aspenpublishers.com for $25.95.

 

Cross-Examination Techniques

“Relentless Criminal Cross-Examination,” by Kevin J. Mahoney, published by James Publishing, offers successful cross-examination techniques that cover opening statements, suppression hearings, confessions, informants, eyewitnesses and experts. Ad­ditionally, the pattern questions are annotated with explanations of the strategy being used. This 450-page guide contains strategies, arguments, examples, tips and more for questioning officers, detectives, toxicologists, eyewitnesses, informants and accomplices. The cost is $99 and it is available by calling (800) 440-4780 or going to www.jamespublishing.com.

 

 

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