The Paralegal
American Association for Paralegal Education Volume 32, No. 2 FALL/WINTER 2017
The Who, What, Where, When, Why, and How of Designing and Assessing Assignments
See article on page 12 Open Letter to the AAfPE Membership
As you know, the AAfPE bylaws were amended last year to add the words “or legal studies” to the definition of Affiliate Membership, paving the way for AAfPE to seek out new affiliate members that do not offer paralegal programs but instead offer extensive legal studies programs within their institutions.
Previously, the bylaws of the association prevented any institution or organization that did not offer a paralegal education program from joining the association, which precluded a large number of vocational schools, colleges, universities, and other higher-education institutions throughout the country that offer extensive programs in legal studies from AAfPE membership.
By approving the change, AAfPE members acknowledged the association’s need to not only increase membership numbers but also bring in a diverse body of membership that would contribute to the collective knowledge base and strength of the association—both key factors in AAfPE’s long-term viability.
Today, AAfPE launches a new logo, reflecting the membership’s decision to include both paralegal and legal studies programs. This new logo represents the next step in AAfPE’s mission to promote quality paralegal education, develop educational standards, and encourage professional growth, in order to prepare graduates to perform a significant role in the delivery of legal services. It is an essential piece of AAfPE’s plan to grow membership in both numbers and diversity. It demonstrates the commitment of both the association and its members to promote high standards for all legal education, regardless of the forum.
Please join me in celebrating this significant investment in AAfPE’s future by sharing AAfPE’s new logo.
Sincerely,
Julia Dunlap, President American Association for Paralegal Education
2 FALL/WINTER 2017 THE PARALEGAL EDUCATOR 222 S Westmonte Drive, Suite 101 Altamonte Springs FL 32714
The Paralegal
American Association for Paralegal Education
table of contents The Paralegal Educator is published two times a year by the American Association for Paralegal Education, 222 S. Westmonte Drive, Suite 101 Altamonte Springs, FL 32714 Message from the President 5 (407) 774-7880 Fax: (407) 774-6440 E-mail: [email protected] Message from the President-Elect 8 PUBLICATION DATES: Spring/Summer and Fall/Winter SUBSCRIPTION RATES: $50 per year; each AAfPE A Model for Teaching Legal Research through member receives one subscription as part of the membership benefits; additional member subscriptions Instructional Scaffolding 9 available at the rate of $30 per year. ADVERTISING RATES: (856) 423-2829 The Who, What, Where, When, Why, and How EDITORIAL STAFF: of Designing and Assessing Assignments 12 Carolyn Bekhor, JD - Editor-in-Chief Steven A. Dayton, JD - Assistant Editor The Road Less Traveled: Advising Graduates Margaret Uchner, Esq. - Chair, Publications on How to Best Become a Freelance Paralegal 16 PUBLISHER: American Association for Paralegal Education
Articles and letters to the editor should be submitted An Update on Programs for Limited Practice by Non-Lawyers 19 via the online form available at http://www.aafpe. org/?page=callforauthors. #ParalegalEd: Capitalizing on the Popularity of Social Media 25 DEADLINES: January 31 and June 15. Conflicts When Representing Estates 30 Articles may be on any paralegal education topic but, on occasion, a Paralegal Educator issue has a central theme or motif, so submissions may be published in any issue Encourage Cell Phone Use in Your Class 32 at the discretion of the Editor(s) and the Publications Committee. (A submission may be rejected as well at the discretion of the Editor(s) and/or Committee.) On a Mission to Help Survivors of Domestic Violence 33
Articles may be of any length although, generally, submissions should not exceed 1,000 words. The article Teaching Oral Presentation Skills to Legal Studies Students 35 should be submitted with an appropriate title, the author’s biography (3-5 sentences) at the end of the The Omniscient Mentor 37 article, and with a recent photo (.jpg at 300 dpi only). Articles should be submitted in Microsoft Word®. It is preferred that articles be double-spaced, 12-point LEX Update 41 Times New Roman, and follow the conventions of good English. Please spell and grammar-check articles before submission. Additional editorial guidelines can be found LEX Essays 42 at the AAfPE website (www.aafpe.org).
Publication and editing of submissions are within 2017 - 2018 AAfPE Officer Election 48 the purview of the Editors, President, and Executive Director. The opinions expressed in The Paralegal 2017 - 2018 Candidate Statements 48 Educator are those of the authors and are not necessarily those of AAfPE. AAfPE Bytes 54 Articles may be reprinted with the permission of AAfPE. To secure permission to reprint articles, please contact the Executive Director.
© 2017 American Association for Paralegal Education THE PARALEGAL EDUCATOR FALL/WINTER 2017 3 Honorary Membership in AAfPE AAfPE 2018 Calendar Each year, up to two persons who have provided outstanding service to AAfPE, but are no longer involved February 2018 in paralegal education, may be conferred with honorary Board of Directors Meeting lifetime membership. June 2018 A nominee must have two (2) letters of recommendation Board of Directors Meeting from two (2) different AAfPE member institutions. If you are interested in nominating someone for this October 29-30, 2018 achievement, please mail and/or email your letters of Board of Directors Meeting recommendation on institution letterhead to AAfPE Headquarters at [email protected] or 222 S. Westmonte Newport, Rhode Island Dr, #101, Altamonte Springs, FL 32714. Nominations received by May 31 will be considered for award at the October 31 - November 3, 2018 next National Conference. 37th National Conference Newport, Rhode Island
Help at Your Fingertips: Writing for The Paralegal Educator Would you like to impress your boss,
The Educational Resource Library your colleagues, your students? The Paralegal
Do you have a teaching experience, American Association for Paralegal Education knowledge relevant to the paralegal Volume 31, No. 1 SPRING/SUMMER 2016 The mission of the ERL is to provide members with profession, or a solution to a problem course-level resources, such as syllabi and subject- that you would like to share? matter projects; and program-level resources, such as assessment plans, rubrics, professional If you are thinking “yes” to any part development ideas, and surveys. Since the ERL’s of these questions, then it is time to Intimate Partner Violence inception, the Education Committee has been put your ideas on paper and write on College Campuses gathering and cataloguing all types of information, an article for AAfPE’s national See article on page 18 even archives of relevant listserv discussions, in an peer-reviewed magazine – effort to streamline AAfPE institutional members’ The Paralegal Educator. access to material designed to make our lives easier The Paralegal The Educator is published twice American Association for Paralegal Education Volume 30, No. 2 FALL/WINTER 2015/2016 (always a bonus) and our programs even better. each year. Articles can be submitted To explore the ERL, go to www.aafpe.org, click at any time; the deadlines for the on “Members Only,” and enter your Username two issues will be announced well in advance of the submission date. (your email address) and Password (from AAfPE). A broad theme may be assigned If there is content you would like to see added, to an issue to focus on trends and See article on page 18 please let us know. Or, if you have something concerns within paralegal education Service Learning and Community to add, please send it to [email protected]. and the paralegal profession. Engagement Across the Curriculum Contributors retain all copyright and author Watch for the “Call for Articles” privileges to their own material. The ERL should on the AAfPE listserve which will only get bigger and better as time passes and provide this information. more AAfPE members help it grow. If you have any questions or would like more information, please contact Editor-in-Chief Carolyn Bekhor at [email protected] or (909) 448-4410
4 FALL/WINTER 2017 THE PARALEGAL EDUCATOR BY JULIA DUNLAP, ESQ, President - University of California, San Diego - Extension
President’s Message Some Parting Thoughts on AAfPE and President’s Term
On the wall of my office, I have a very large, framed copy of the Constitution that I bought about 10 years ago at a thrift store. There it was, gathering dust sitting in a bin at Amvets, obviously passed over by bargain hunters, but if you had witnessed my reaction that day, you would have thought I discovered a priceless heirloom … and, indeed, I had. I stare at it every day I’m at work. When I returned from New York City on a trip where I had the great pleasure of seeing the musical Hamilton (thank you, Steve Dayton), the first thing I did when I got back to my office was look for Alexander’s signature next to the New York delegation and appreciate his fine penmanship. Yet even with the success of a musical celebrating our nation’s origination, and all the discussion of Constitutional conflict in the news, I cannot tell you how many people walk into my office and barely notice it hanging right inside my door, much less comment on it … and it is hard to miss. But I bet my AAfPE friends and colleagues would notice it and appreciate its intrinsic value. I know this to be true because I know we all honor the law and our profession. As educators, our ability to teach the principles of this document that our country was founded upon and to which many of us have sworn an oath, now, perhaps more so than ever, is a reward in and of itself.
As I am eyeing the end of my Presidency, I find I have mixed feelings. On one side, I am looking forward to having only one or two jobs instead of three and I see a light at the end of a tunnel. Conversely, I feel like I have just gotten my sea legs and have so much more yet to do. Although, as board members we are considered “volunteers,” once on the AAfPE Board of Directors, all directors immediately take ownership of their roles and spend a considerable amount of time working on fostering the goals and success of AAfPE. I don’t say this to discourage our members to run for AAfPE Board positions, but to highlight that it is a rewarding job that does require a commitment that few ever regret making. The dedication this board (and all previous boards) has shown in exploring options for the betterment of the organization is to be commended and I am proud to have worked with every one of them on past initiatives and in putting forth the proposed bylaws to be voted on in Albuquerque.
At the National Conference on October 20, we will be voting on two significant bylaw changes (the specific language of the bylaw proposals are in this publication, on the AAfPE website, and on the listserv). One of those bylaws would change the term of the President of AAfPE beginning with the election in 2018.If approved, the President’s term would now be a two-year term as President-Elect and a two-year term as President; there would no longer be an Immediate Past President. The board is putting forth this change for a vote based on a few factors, which include:
1. Board members have heard from a significant number of AAfPE members who feel strongly that a one-year term as President is not long enough for the President to oversee an organization and that changing the presidency every year does not allow for consistency and the ability to stewardship the organization.
2. Many common organizations have a similar structure for the presidency, allowing the leader of the organization to sit in that role for at least two years.
3. Anecdotal evidence from past presidents who felt, as I do, that they were just getting comfortable and secure President the from Message in their role and responsibilities as President when their term was coming to an end.
THE PARALEGAL EDUCATOR FALL/WINTER 2017 5 As I said in the beginning, I’m tired but unbowed from my year as President. Because of our relationship working together and our friendship, I know that Kye Haymore, your President-Elect, and I will continue to collaborate and that I will have input in the stewardship of the organization for at least another year as Immediate Past President. I am encouraged by that and know that AAfPE will be in very capable hands with Kye as President. Kye has as much love for and dedication to AAfPE as I do and I will aid her in any way I can during the next year. Bob Mongue, our current Immediate Past President, and I had a similar vision and as a result worked well together. But, what if that was not the case and there was no commonality of thought? Would the upheaval or change of vision be best for the organization every year? I do not think so and that is why I encourage you to vote for the bylaw change and vote in all elections for board members including President. Every vote matters.
The other significant bylaw change that the organization will be voting on is “4.3 Regional Directors.” The effect of this bylaw change, if approved, would be the restructure of our regions from five to four. The four new regions would be designated as West, Central, South, and North. Under the current bylaw 4.3, the board is granted the responsibility of defining the geographical boundaries of the regions and the board will have the same responsibility under the new proposed bylaw. Effectively, the only change is the renaming of the regions and going from five to four regions. I hope you will support this bylaw change.
We have an exciting conference coming up in the Land of Enchantment and I look forward to visiting with you all. It has been a distinct honor of my career to serve as your President and I look forward to many more years contributing to the success of our great organization. Thank you all for your support, encouragement, and guidance. Now, go out and search for your own copy of the Constitution to hang on your office wall … if it’s not there already.
Julia M. Dunlap President American Association for Paralegal Education
Proposed Bylaws Changes
In accordance with Article VIII, Section 8.1, of the bylaws of the American Association for Paralegal Education (AAfPE), notice is hereby filed on this 21st day of August, 2017, and the membership duly notified that changes to the association’s bylaws have been proposed.
Motion It is recommended that the bylaws of the association, section 2.4.b, be amended as follows:
Current Provision Proposed Amendment
2.4.b Membership dues are due and payable on January 1 of 2.4.b Membership dues are due and payable on January 1 of each year. Dues paid after April 30 are subject to a late fee to each year. Dues paid after February 15 are subject to a late be determined by the Board of Directors, but that fee will not fee of 10 percent. Dues for the membership year January 1 - exceed 10% of the delinquent sum. Dues for the membership December 31 that are not paid on or before September 1 are year January 1 - December 31 that are not paid on or before delinquent. An institution that is delinquent in the payment September 1 are delinquent. An institution that is delinquent of its dues is not a member in good standing and is not eligible in the payment of its dues is not a member in good standing to vote at the annual or any special meeting. An institution and is not eligible to vote at the annual or any special seeking membership must submit an application and have it meeting. An institution seeking membership must submit an approved, by September 1, and pay the current year's dues application and have it approved, by September 1, and pay the prior to the official opening of the Annual Conference in order current year's dues prior to the official opening of the Annual to be counted as part of a quorum and to vote at the annual or Conference in order to be counted as part of a quorum and to any special meeting. vote at the annual or any special meeting.
6 FALL/WINTER 2017 THE PARALEGAL EDUCATOR It is recommended that the bylaws of the association, Articles IV and V, be amended as follows:
Current Provision Proposed Amendment
4.1 Officers. The officers of this Association shall be the immediate 4.1 Officers. The officers of this Association shall be the president, past president, president, president-elect, treasurer, and secretary. president-elect, treasurer, and secretary.
4.4.c Only one educator or administrator of a voting institution 4.4.c Only one educator or administrator of a voting institution shall shall serve on the Board at any one time. The immediate past serve on the Board at any one time. The president shall be ineligible president shall be ineligible for immediate election to the Board, for immediate election to the Board, but shall be so eligible after but shall be so eligible after one (1) full year off the Board. one (1) full year off the Board.
4.9 Terms of Office. The term of office for president and president- 4.9 Terms of Office. The term of office for president and president- elect, and immediate past president shall be for one (1) year. The elect shall be for two (2) years each. The term of office for term of office for treasurer and secretary shall be for three (3) treasurer and secretary shall be for three (3) years. Directors are years. Directors are elected for three (3) year terms. No elected elected for three (3) year terms. No elected officer or director may officer or director may serve for more than two consecutive terms serve for more than two consecutive terms in the same office. The in the same office. The time spent in filling a partial term created time spent in filling a partial term created by removal or vacancy by removal or vacancy shall not count towards the two term shall not count towards the two term limitation. No officer or limitation. No officer or director shall hold more than one office. director shall hold more than one office.
5.1 Voting Members of the Board of Directors. The president, 5.1 Voting Members of the Board of Directors. The president, president-elect, immediate past president, secretary, treasurer, and president-elect, secretary, treasurer, and directors set forth in 4.2. directors set forth in 4.2. and 4.3 are voting members of the Board. and 4.3 are voting members of the Board.
Rationale A full two-year term as president would allow for increased development of our president as an effective leader, even more accountability to the membership, and enhance consistency in organizational communication.
It is further recommended that the bylaws of the association, section 4.3, be amended as follows:
Current Provision Proposed Amendment
4.3 Regional Directors. There shall be one director elected 4.3 Regional Directors. There shall be one director elected from each of the five regions: North Central; South Central; from each of four regions: Central, North, South, and South East; North East; and Pacific. The Board of Directors West. The Board of Directors shall be responsible for defining shall be responsible for defining the geographic boundaries the geographic boundaries of these regions. These Directors of these regions. These Directors shall be elected by the shall be elected by the delegates from the respective regions delegates from the respective regions at the annual meeting. at the annual meeting. Further, this change will not take place until the close of the annual 2018 meeting.
Board Recommendation The AAfPE Executive Board recommends adoption of these proposed bylaws changes.
Voting This proposed bylaws amendment will be voted on in accordance with Article VIII, section 8.2, of AAfPE bylaws on Friday, October 20, 2017, during the business meeting at the 36th Annual Conference. The bylaws amendments shall not be adopted unless it is approved by two-thirds of the votes cast on the proposed amendment at the annual meeting. A member school shall not be counted as voting unless it votes for or against the amendment. The votes cast shall not include blank ballots and abstentions.
THE PARALEGAL EDUCATOR FALL/WINTER 2017 7 By Kye Haymore, President-Elect - Georgia Piedmont Technical College
President-Elect’s Message As I reflect on this past year since our last AAfPE election and as I prepare to be AAfPE’s new president, I must say that I am stepping into some very big shoes. Julia Dunlap has been an extremely dedicated and vibrant President, who has had a clear vision for what she would like to see happen in this organization, and she has been focused on that vision since the beginning of her Presidential three-year cycle. She has not been afraid to embrace the complicated issue of expanding membership by reaching out beyond the traditional boundaries of our organization while still maintaining a sound fiscal foundation. Julia has set an example for leadership that will definitely be hard to follow. I hope you will seek Julia out, whether it be by email or in person at the AAfPE 36th Annual National Conference in Albuquerque, New Mexico, to thank her for her commitment to AAfPE and our profession. Leaders like Julia are exactly the reason that the Board of Directors has proposed the previously released bylaw changes. Once elected, I quickly learned one year as the leader of such a complex organization as AAfPE is an incredibly short period of time, especially if you are truly dedicated to the betterment of the organization. It is hard work, and at many times it can be extremely challenging to deal with the issues we face, but if you are committed to seeing AAfPE grow, one year is not enough time to share your gifts and to implement your vision. Even if you have served on the AAfPE Board prior to being elected to the presidency, you are just starting to feel that you are on solid ground with regard to the inner workings and day-to-day operation of AAfPE when it is then time for you to step down. While serving as the Immediate Past President certainly lends a continuity of leadership, you must abandon your own vision in order to support the new President in his/her vision, even though you may have never seen yours come to fruition. The Board has proposed the bylaw changes in order to extend that time for a President to ac- complish what he/she sets out to do. The Board hopes that you will support this bylaw change along with the two other changes we are proposing. As I said in my last Paralegal Educator column, I am so grateful to the AAfPE Founders and all of those who have volunteered their time and energy to make AAfPE the preeminent organization that it is, but as I am respectful of our history, I am also excited about what we can become as we move to the future. We cannot become complacent and stagnant. We would never want our individual programs to stand still so we should strive for the same thing for this organization that we all hold so dear. As we prepare to welcome you to Albuquerque, please know that the National Conference Committee, the AAfPE Board of Directors and our management company, Kautter Wenhold Management Group, have worked tirelessly to make this conference a memorable experience for you. We hope the conference will renew your energy and commit- ment to our organization. I look forward to a great week in Albuquerque, and I hope that each of you will join me the Wednesday afternoon of the Conference for AAfPE 101: Arriving, Thriving and Rising to the Next Level. This was once the Newcomer’s Session, but it is now open to everyone, not just first-time attendees. Being in Albuquerque, home of the International Balloon Fiesta, the world’s largest gathering of hot air balloons, I am reminded of the phrase that is the mantra for many Georgians during football season, “Rise Up!” “Rise Up” is the of- ficial battle cry of the Atlanta Falcons, but it could just as easily apply to AAfPE and its members. If you have a heart for AAfPE and its legacy, please join me in Albuquerque, and let’s all “Rise Up.”
Message from the President-Elect the from Message Kye Haymore President-Elect American Association for Paralegal Education
8 FALL/WINTER 2017 THE PARALEGAL EDUCATOR By Eric Bellone - Suffolk University and Graham Kelder - Suffolk University
A Model for Teaching Legal Research through Instructional Scaffolding
INTRODUCTION
Students come to school with a diverse range Teaching students how to use legal research resources can be a challenge. Secondary sources like Am. Jur, C.J.S., of academic, research, computer, writing and state-specific legal encyclopedias, horn books, and others come in a dizzying array. Further, the myriad of primary language skills.1 Using scaffolding as a teaching sources from state and federal statutes, to case law and method, professors provide supports that can regulations can test the patience of many students. Often teaching legal research is like trying to describe a bicycle gradually be removed as students develop the to someone who has never seen one. The rub with legal research is that you cannot present the complete bicycle. ability to perform a task independently.2 “A Instead you are forced to show and explain pieces of a bike scaffolding approach enables students to develop throughout the semester, assembling the pieces at the end of the term to show that when they come together, you necessary skills in these areas while learning the have a bike. Using the pedagogical concept of Instructional Scaffolding helps with this process and makes the learning content of the course in which they are studying.”3 process more comprehensive and smoother.
THE PARALEGAL EDUCATOR FALL/WINTER 2017 9 There are three essential features to Instructional Scaffolding REFLECTIONS AND CONCLUSIONS to facilitate learning: At Suffolk University we have two luxuries: a law library on 1. The teacher must know the student’s “zone of proximal campus and courses that offer legal research and writing over development,” or more simply, the student’s current level of two semesters. We try to use these two advantages to aid knowledge.4 the students whenever we can and have been very successful with this teaching method. Students gravitate towards the Taking an assessment early in the semester to determine more individual attention and the “training wheels” approach what types of research the students have done and what they that scaffolding provides. By the end of the semester they can are comfortable with is critical. Most have done some type ride their metaphorical bike around the law library and use of research in the past, be it social, scientific, historical, and/ computer-aided legal research (CALR) with ease. or legal research. From the first day, we work with students to help make them comfortable with legal research. Making Students gravitate to this type of learning. From that determination starts with a simple showing of hands as to the types of research they have conducted and for the beginning, they have a level of comfort with the what reason. Once we have a feel for the students’ level of material. From their introduction to the material to research experience, we make analogies from what they are its mastery, students understand the material and comfortable with to legal research. Using encyclopedias is often familiar. Many legal secondary sources are used in the at the end of the semester understand how all the same way. Further, many students are very familiar with using resources fit into research. The extra time spent search engines like Google or Bing. While they often need a with the students at the beginning of the semester lesson in the basic mechanics of the platform, students gain a level of comfort and expertise quickly. pays off at the end of the semester. They are more self-sufficient and thorough in their research and 2. Collaborative interaction between the teacher and the student.5 legal analysis than when we used other pedagogical methods. The middle of the semester is often used Close cooperation between students and professors is critical. In legal research, classroom lectures are often far to get the stragglers up to speed while moving the more interactive than in other types of classes. We strive to rest of the class forward. keep class sizes smaller and offer more attention to individual Even with the luxury of time, teaching all the necessary legal students. Since legal research is more of a skills-based class skills to students is always a factor in research and writing rather than a more traditional knowledge-based legal class, classes. The tools of research must all be covered in one this close collaboration is necessary. Early in the semester, semester as we teach legal analysis in the next semester. we take the students to the law library regularly. Students We are keenly aware that the next professor is relying on often fear that professors will teach legal research with a the previous to teach the necessary research skills for the “sink or swim” approach. They dread the frustration that can following classes. As much as we can, we try to have the accompany legal research. We alleviate this by not allowing semester not have the feel of a ‘forced march” slogging the students to be on their own until they are ready. through to the end. 3. Then the scaffold, the supervision and direction that We are still working on presenting a better overview to the teacher is providing, is slowly removed as the student the material to enable the students to have an easier time becomes more capable and skilled at the task.6 assembling the resources learned to be used in an integrated As the students master each resource, less and less supervision research project. An earlier Paralegal Educator article is required until students are self-sufficient. It is a significant by James A. Croft (Spring\Summer 2016) about using an day indeed when the professor does not need to go to the integrated project was very helpful. We are currently involved library with a class to complete a research task. First, we show in setting one up. Hopefully, it will provide students with the the students how to master a particular type of research (i.e. best of both pedagogical teaching methods and make learning case law or statutes, etc.), then, we work with the students legal research and writing smoother. to do the same task. Later, we let the student do the task themselves, being there only to answer questions as difficulties arise. It ends with the students going to the law library alone and using class time to answer any common questions.
10 FALL/WINTER 2017 THE PARALEGAL EDUCATOR Biographies Suffolk for more than fourteen years – four years at the Law Eric Bellone is an Associate Professor of Government at Suffolk School and ten years at the College of Arts and Sciences. He University. His two main areas of research are: (1) The legal also taught for several years as an adjunct professor at Suffolk and public policy ramifications of the use of specialized courts and at Northeastern University School of Law. His areas of in the legal system, especially the use of drug courts, and (2) research interest include: Torts, Products Liability, Tobacco the impact of technology on the legal process, specifically the Regulation, Regulation of the Food Industry, Constitutional Law, use of videoconferencing in the courts. He is currently working Law and Religion, Politics and Religion, and Paralegal Studies with the Massachusetts Committee for Public Counsel Services and Practice. He served as chairperson of the College of Arts & (CPCS) on best practices for the use of videoconferencing in Sciences Faculty Life Committee in the 2013-2014 academic year. the Commonwealth’s courts. Eric has written a book chapter Prof. Kelder is currently a Dean’s Fellow at the Boston University in The New Technology of Crime, Law, and Social Control and School of Theology. his publications have appeared in The Journal of International Commercial Law and Technology and The Encyclopedia of Endnotes Criminology and Criminal Justice. He received a B.S. in Economics 1Id. and a B.A. in History, a J.D. the University of New Hampshire 2 http://www.uow.edu.au/dvca/socialinclusion/inclusiveteaching/ School of Law, an M.A. in Criminal Justice from the University UOW157268.html of Massachusetts - Lowell, and a Ph.D. in Law and Public Policy 3 Id. from Northeastern University. 4 The Iris Center, Instructional Scaffolding, Peabody College of Education and Human Development, n.d. Web. 29 Mar. 2017. Graham Kelder, a tenured Associate Professor in the Government 5 Id. Department at Suffolk University in Boston, is a public health 6 Id. policy expert with more than ten years of tobacco control and tobacco litigation experience. He has taught full-time at
LEX Graduation Sash
AAfPE offers Lambda Epsilon Chi graduation sashes for inductees. These sashes are purple satin, have the LEX Greek letters, and display the hon- or society seal embroidered in gold. Also available are LEX banners. The material and design of the banner are the same as the sash.
The sashes are available at a cost of $35, and the banners are on sale for $50 (payable by credit card or check made payable to AAfPE). Payment is required with submission of order. Orders must be placed within two weeks prior to commencement ceremonies.
AAfPE covers standard mailing costs for orders placed within a two-week delivery date. Express shipping costs for induction certificates, pins, sashes, and banners are paid by the LEX chapter.
To order, visit the LEX area on www.aafpe.org
THE PARALEGAL EDUCATOR FALL/WINTER 2017 11 By Ellen Boegel - St. John’s University The Who, What, Where, When, Why, and How of Designing and Assessing Assignments
Assessment is an integral part of higher education. of a course to programmatic and institutional goals. The Assessment is required for institutional accreditation, professor is responsible for the use of classroom time and for American Bar Association approval, internal audits, and each task and test required of students. Every class discussion, faculty reappointment and promotion decisions. Facilities, assigned reading, quiz question, and document drafted is a libraries, support services, curriculum, graduation rates, and reflection of choices made regarding the knowledge, skills, employment statistics require assessment. This article focuses and abilities students should learn. These decisions impact a on the most basic assessment question – What has a student professor’s assessment of students, a professor’s assessment learned? – and demonstrates how this essential inquiry by students, reappointment and tenure decisions, and impacts larger questions. The basic investigative questions programmatic and university success. Linking Program Level – who, what, where, when, why, and how – serve as useful Assessment to Course Level Assessment Activities (O’Keefe, guides through this process. R.D., Hamer, L.O. and Kemp, P.R. 2013, Journal of Learning in Higher Education, vol. 9, no. 1, pp. 161-167, http://files.eric. Who is being assessed? ed.gov/fulltext/EJ1144046.pdf) provides a concise discussion The most fundamental answer is that students are being of higher education assessment and reports findings from a assessed, but course content, delivery, and assignments also student survey model used to assess course success. demonstrate a professor’s teaching abilities and the relevance
12 FALL/WINTER 2017 THE PARALEGAL EDUCATOR What is assessed? When to assess? What is assessed is defined by the course syllabus. Students When and how often to assess students depends on must demonstrate their understanding of subject matter everything from practical factors, such as class size, professor terms and concepts and their ability to perform required and student workload, and institutional requirements, to paralegal skills. Each class has its own dynamics, however. pedagogical concerns. Whatever your current assessment Professors emphasize different aspects of a course depending timetable, consider the benefits of these options. on their legal expertise, the skill level of their students, and Pre-tests given before a topic is introduced help students relevant current events. Self-designed and publisher-provided look for and focus on the main points they should be learning materials should be reviewed for quality and relevance through assigned readings, lectures, and class activities. to each semester’s course content. Faculty and program Practice tests help students and professors learn when directors also should assess the knowledge, skills, and abilities additional time and effort needs to be given to specific topics. required by employers in the field. Advisory boards, focus Regular homework assignments can keep students from groups, job announcements, and correspondence with recent falling behind and give professors an indicator of student skills graduates employed in the legal field can help determine the and engagement with the material. Requiring multiple drafts appropriate scope and depth of course assignments. of writing assignments gives students valuable editing insights Different courses present different assessment opportunities and prepares them for the rigorous standards required and challenges. A civil litigation course, for example, by employers. Early alerts and midterm grades encourage may cover and assess practical skills, such as document students who are underperforming to seek help and put more preparation and case management, whereas a substantive law effort into their studies. class may stress effective legal analysis, writing, and research. Most difficult to teach and quantify are interpersonal skills Assess yourself and the pacing of each course essential for dealing effectively with clients, co-workers, and supervisors that appropriately may be incorporated into as the semester progresses. Be flexible enough many, if not all, paralegal courses. to recognize when students need more time to master content or skills. Consider posting self-help Where to assess? materials online or scheduling remedial sessions Where to assess is easy to answer if you teach online. Unless your school requires distance learning students to come during office hours to assist struggling students. to campus for exams, assessment takes place through the course portal. Assessment in face-to-face courses varies. Why assess? Quizzes, tests, and oral presentations generally are given in The obvious answer is because we must give students grades class, and assignments are completed at home. Professors at the end of the semester, but assessment is more than mere who teach in physical classrooms can free up precious class grading, and well-planned assessments point to areas where time by using online portals to administer pre-tests, self- we and our students need improvement. Assessments geared assessments, and open book exams. Formal and informal peer to course, programmatic, and institutional goals are necessary assessment can also take place in the classroom and can be to determine faculty performance and gauge whether a facilitated by borrowing techniques used in the dramatic arts. particular course should be kept in the curriculum. The time Frequent impromptu role play in the classroom can develop is long past when professors can simply keep “doing as I am trust and camaraderie between students and the professor. doing” semester after semester without any evidence that Encouraging constructive criticism of student interaction we are achieving the goal of preparing graduates for law during impromptu “no stakes” scenarios prepares students office employment. for structured role plays, such as client or witness interviews, reports to supervisors, and administrative hearings, which How to assess? require advance research and preparation and result in The answer to this question is of the utmost practical recorded grades. importance to students, because grades will determine whether they graduate and their post-graduate employment Assessment also takes place off campus where internship and educational opportunities. Our assessment methods supervisors evaluate students’ practical skills. These reports and standards signify the importance we place on content are essential not only for determining the grade received by acquisition, skill development, and legal reasoning. Each individual students, but as external reviews of instructional course should be appraised to determine how best to gauge and programmatic success. student learning. Regulatory and procedural courses may
THE PARALEGAL EDUCATOR FALL/WINTER 2017 13 lend themselves to straightforward short-answer or OR multiple-choice questions that demonstrate student Motion granted and denied. [Statement of the court’s command of important terms and rules. Skills courses decision rather than the status of the case as presented to like Legal Research and Legal Writing require practical the court.] assignments. Most courses benefit from a variety of assessment tools. Facts Above/Meets standards (2 pts) – precise summary of all Whatever the type, assessments must be carefully crafted facts relevant to the decision using generic descriptions to target course content and avoid unnecessary confusion. rather than proper names Encourage self-assessment and, when appropriate, peer assessment, prior to grading assignments. Include checklists Defendants’ male dog bit and injured one of the plaintiffs with assignments to help students complete all required while defendants’ dog was at plaintiffs’ home for the components. Take each quiz or test yourself before giving it to purpose of breeding it with plaintiffs’ female dog. Plaintiffs students. Write a sample IRAC answer before assigning a legal were not in the business of boarding or breeding dogs and analysis question, and develop a grading rubric based on your were not aware defendants’ dog had vicious propensities. answer. Share the rubric with the class when you explain the assignment, and give them examples of answers that meet Approaching standards (1 pt) – one missing or erroneous and do not meet the rubric’s requirements. fact; contains one or two unnecessary facts; minor grammatical or spelling errors The following is a partial case brief rubric with suggested examples: Veronda was bited by Einstein when she kissed her husband. Einstein is owned by the defendant and was staying over Proper case citation at the Dougan’s house to mate with the Dougan’s dog. Above/Meets standards (2 pts) – citation is completely Einstein’s owner told the Dougans Einstein was gentle. accurate Veronda needed 35 stitches. [Incorrect verb form – bited instead of bitten; proper names instead of generic Dougan v. Nunes, 645 F. Supp. 2d 319 (D.N.J. 2009) descriptions; irrelevant fact - the number of stitches] Approaching standards (1 pt) – one missing or erroneous component Below standards (0 pts) – two or more missing or erroneous Dougan v. Nunes, 645 F. Supp. 2d 319 (2009) [court facts; copies facts from case; contains multiple unnecessary identifier is missing] facts; written in a confusing or ungrammatical manner; spelling errors Below standards (0 pts) – two or more missing or erroneous components The dogs mated a second time after Plaintiffs’ guests had Dougan v. Nunes, 645 F. Supp. 2d 319 [court identifier and left. (T. Dougan Depo. 32:2–4.) That evening, at around 6:30 year are missing] p.m., Plaintiff Timothy Dougan sat at the foot of his bed while Einstein rested his head on Timothy’s lap. Plaintiff Procedural history Veronda Dougan went to kiss her husband on the bed, and Above/Meets standards (2 pts) – procedural history is Einstein bit Veronda’s face. (Id. at 37:10–20.) Timothy drove completely accurate Veronda to the hospital, and doctors administered two Plaintiffs filed a complaint in federal district court. shots of antibiotics to Veronda before giving her 34 stitches. Defendants moved for summary judgment and plaintiffs (V. Dougan Depo. at 50:1–9.) cross-moved for summary judgment. Approaching standards (1 pt) – one missing or erroneous [Copies facts from case; does not identify defendants or component their relationship to plaintiffs and Einstein.]
Motion for summary judgment. [Incomplete as both Issue(s) plaintiffs and defendants moved for summary judgment.] Above/Meets standards (2 pts) – includes all information Below standards (0 pts) – two or more missing or erroneous necessary to understand the legal issue decided by the components court; stated in proper legal issue format adapted from the No procedural history given following sample; run-on sentences are acceptable and often necessary
14 FALL/WINTER 2017 THE PARALEGAL EDUCATOR Whether defendant [insert generic description] is liable for between, often is based on the difficulty level of tests [insert tort/crime], which requires [insert elements], when and assignments. Assessments should be “just right;” not [insert relevant facts], even when [insert any too soft or too hard. Campus rumor mills and unscientific relevant defense] ratemyprofessor.com-type message boards should not determine our assessment decisions, but awareness of how Whether defendant dog owner is liable under New Jersey’s we are perceived can help us self-assess. Consider adding a strict liability statute, which requires defendant to be the simple survey at the end of each test or assignment that asks owner of a dog that bit and injured plaintiff while plaintiff whether the material was properly explained in class and was in a public place or lawfully in a private place, when enough time was given to answer the questions. Ask students plaintiffs, who were not in the business of boarding and to give the course a midterm grade with suggestions for breeding dogs, had an agreement with defendants to mate improvements. Consider adding your own questions regarding their dogs and defendants’ dog bit one of the plaintiffs assessment to standard end-of-term forms and carefully after defendants indicated their dog was not aggressive review student responses. and insisted that it stay at plaintiffs’ house, even when plaintiffs may have benefitted economically from the Finally, a good assessment is part of the learning breeding arrangement process. Every time a student hands in a test, ask Approaching standards (1 pt) – one missing or erroneous him or her, “Did you learn something?” Ask yourself component; spelling errors the same question after you grade the tests.
Whether defendant is liable under New Jersey’s strict Sometimes you will learn your students did not learn liability statute to plaintiff when defendant’s dog bit much. Sometimes you will learn you asked confusing plaintiff when it was staying at plaintiff’s house [Missing questions or that the test was too long or too short. tort elements and facts necessary to determine possible Sometimes you will learn you gave a good test that defenses] challenged students to use the material covered in Below standards (0 pts) – two or more missing or erroneous the course to solve a legal problem. Sometimes, components; spelling errors you will get an “A.”
Is defendant liable? [Not useful; missing all necessary Biography components] Ellen Boegel is an Associate Professor at St. John’s University and is Director of the Legal Studies program on the Staten When writing a test consider how each question Island campus. She serves as an attorney volunteer on Surrogate Decision-Making Panels for the NYS Justice Center for the relates to material covered in the course; eliminate Protection of People with Special Needs and regularly writes for outdated or repetitive questions. Permit students America media. to study from sample tests with answers. Carefully scrutinize every word of every assessment and give students an opportunity to ask questions about the questions. Bright, knowledgeable students sometimes give incorrect answers simply because they do not understand what is being asked of them. Permit students to challenge answers after tests have been graded. There may be alternative correct answers.
Review assessments for difficulty. Determine the right mix of basic and advanced questions for each test. A professor’s reputation as an “easy A” or “easy F,” or something in
THE PARALEGAL EDUCATOR FALL/WINTER 2017 15 By Steven Dayton - Fullerton College
The Road Less Travelled: Advising Graduates on How to Best Become a Freelance Paralegal
I have been a paralegal instructor, a program director, or a how much a freelance paralegal can make based on particular combination of both since the early 1990s. Over the course areas of law. Absent from the plethora of materials available of those years, only a handful of students have asked how to online are instructions or guidance on how a paralegal become a freelance paralegal. Some states regulate paralegals educator can teach those skills necessary for a graduate to and draw a distinction between an independent paralegal and succeed as a freelance paralegal. Based on sound marketing a freelance paralegal. According to the website “Paralegal principles, educators can guide their students down this Alliance,” an independent paralegal is one who markets particular career path. their service to the public, whereas a freelance paralegal services as a contract paralegal for an attorney or a law firm.1 Many educators advise students to send a letter or “pound Statistics as to the number of working freelance paralegals are the pavement,” but that advice provides no practical non-existent, but numerous articles have been written as to techniques for a student. Recently, I reevaluated my response how a paralegal may become a freelance paralegal, what are to students seeking information as I observed an increase the advantages and disadvantages of this career choice, and in the number of students, and many graduates, wishing to
16 FALL/WINTER 2017 THE PARALEGAL EDUCATOR market their services to attorneys rather than be employed Second, the student needs to modify his resume to reflect full-time as a paralegal in a law office or legal department. his desire to work as a contract paralegal. He should select I also realized a perfunctory response of “send a letter” his best writing samples – samples that typify his strengths. was of no use or benefit. Program directors and educators Once selected, he should convert his resume and samples into of paralegal students owe a duty to students to provide a PDF portfolio, being sure to consider client confidentiality placement advice and services. from past employment and appropriately redacting confidential information. When in practice, I was appalled by Using the experience I garnered as a marketing the samples potential employees would provide that clearly director, I set out to fashion an approach and a plan contained privileged information. If the student is familiar with Adobe Acrobat Pro or similar programs, he should have that could be shared with students who wished to no problem redacting his documents. Stress to the student set up their own business or work from home. What that this packet is a living document and that as work is follows is the first incarnation of the information performed, he should modify his resume and add documents I review with a student who wishes to become a and samples to the existing portfolio. Also, the student should have multiple portfolios and resumes if the student’s freelance paralegal. I expect this approach to be strengths lie in different areas, i.e., one portfolio when he is refined and revised as I counsel more students. seeking employment related to conducting research and a different one when he is soliciting writing projects. This will An article published in Paralegal Today, “Marketing Your allow him to have a standard “packet” for marketing and one Paralegal Services,” provides insight from many paralegals specific to the needs of an attorney in a particular area of who have opted to work as freelance paralegals and law. As anyone can attest, seldom does the “one size fits all” reinforces the need for educators to stress to the student actually “fit all.” that establishing and marketing him or herself as a freelance paralegal is a labor-intensive and time-consuming task; to Third, it is time for the student to market his services. This is be successful one cannot just send out resumes and cover one area in which you might want to encourage the student letters.2 Be aware many students do not have the drive to take business or marketing classes. Ask your business or necessary to be successful as a freelance paralegal. marketing colleagues if they would be willing to counsel or mentor a student on the basics of marketing. The student First, tell the student to completely and thoroughly draft a needs to create a LinkedIn account, a Facebook page, and an self-inventory by listing his strengths, weaknesses, skills and e-mail address exclusively for his new endeavor. He must also talents. The student has to be honest about where he excels, determine his market; in what area of law is he most qualified where he is average, and where his skills are still weak. As to provide a benefit to an attorney or a law firm. part of this evaluation, he needs to ask what he can offer to an attorney or firm that they cannot get by hiring an employee. Before any actual marketing may begin, the student must Part of the advantage of having a freelance paralegal available prepare or have drafted a binding, enforceable contract that to an attorney or firm is the cost savings by not paying taxes, clearly delineates what he will and will not do, his billing and benefits, and other financial expenditures that accrue with payment arrangements, notices, termination, choice of law, a full-time employee. Additionally, based on the student’s arbitration or attorney’s fees, and anything else he needs to evaluation, he should determine what services he will market include in a fee agreement or employment contract to protect to an attorney and generate a realistic “price list” for those the student and for him to be recompensed should a breach services taking into consideration what the market will bear occur. This way the student is adequately prepared if he is based on the geographic area. hired on the spot by an attorney who is under a crunch to get a pleading, petition, motion, response or the like drafted. As part of any assessment on whether to become a freelance paralegal, the student should read the article, “Are You Once he has completed these initial steps, it is time to Ready to Offer Freelance Paralegal Services3” which provides commence the actual marketing of his talents. There are a few testimonials from successful freelance paralegals discussing ways to approach this step depending on what is accessible the pros, cons, and lessons learned when making the to the student given the geographic area. I suggest attending transition from an employee to an independent contractor a local paralegal association meeting and letting colleagues and marketer of paralegal services. It is also an excellent know that he is soliciting employment as a freelance source of information on how a paralegal can draft an paralegal. While some may see this as a threat to their jobs, effective marketing plan – a necessity for the student who others are aware of major cases or projects that are ripe for wishes to become a freelance paralegal. additional support.
THE PARALEGAL EDUCATOR FALL/WINTER 2017 17 The student should also attend local bar association meetings a business license and a fictitious business name statement and network with local attorneys, especially if the local needed? What tax procedures must he follow as a freelance bar has specialty chapters related to the area of law to paralegal who functions as an independent contractor? Does which the student is interested in providing services. Many the state bar have any prohibitions regarding paralegals bar associations will allow members and visitors to make marketing to attorneys? announcements or distribute information to the attendees, so students should have a one-page flyer and business cards While each of these steps or stages could be treatises prepared. If the association will not allow the student to unto themselves, do not overwhelm the student with make an announcement or distribute information, then insurmountable tasks when counseling him or her. Discuss the student needs to network and introduce himself to the these steps and if clarification or more detail is needed, hold attendees. Shy students will seldom make it this far and subsequent meetings. Encourage the student to seek books should be encouraged to seek non-contract employment. and materials on developing marketing plans, determining costs and fees, and researching unique and different ways to It is often better for students to network at a function that attract the attention of an attorney. If a student wishes to includes a meal along with a CLE session as there is generally work in a particular area of law, have that student investigate a meet-and-greet component or cocktail hour to mingle. The attorney directories and appellate decisions to find the student may want to avoid bringing handouts to this kind of names of the attorneys practicing in that area of law. As all event as the handouts can often turn people off and, just like paralegal educators have noticed, not all students elect to at a conference or convention where some people collect follow the same path. Be cognizant of those students who any and all materials, unsolicited materials are generally have an entrepreneurial spirit and may seek employment as dumped in the nearest trash can. If time permits and you a freelance paralegal. The tools you need to provide advice, are so inclined, attend a meeting with your student to help counsel and direction to those students are available and alleviate his or her initial fear of attorneys – remember for plentiful with just minimal searching. I encourage you to many students and graduates, their instructors are the only explore in greater detail the ever-growing employment field exposure they have had to an attorney. of the freelance paralegal. A very viable market for a freelance paralegal is new ENDNOTES 1 Shelley Riseden, “Independent or a Freelance Paralegal, Is There attorneys. Many new attorneys hang out their own a Difference?” Paralegal Alliance, February 11, 2013
18 FALL/WINTER 2017 THE PARALEGAL EDUCATOR By Lynn Crossett - Texas State University
An Update on Programs for Limited Practice by Non-Lawyers
I. Introduction
A number of states have considered or are considering various proposals for limited, non-lawyer practice, but no state other than Washington has approved and implemented such a program. These states include California, Colorado, Connecticut, New Mexico, and Oregon, among others.1 In 2015, the Utah Supreme Court approved the concept of a “Limited Paralegal Practitioner” but has not yet developed the details regarding minimum qualifications and scope of authority.2 The Vermont Joint Commission on the Future of Legal Services concluded that it is not prepared to recommend a Limited License Legal Technician (LLLT) program but instead favors an expanded role for certified paralegals and recommended a Vermont Certified Paralegal Program.3 Oregon recently went a step further, recommending a limited paralegal licensing mechanism. Perhaps this signals a recognition of the role paralegals play in the access-to-justice debate.
THE PARALEGAL EDUCATOR FALL/WINTER 2017 19 This article examines programs allowing non-lawyer may be provided by legal document assistants are limited practice, which include legal document preparers and to assistance with completing and filing forms or providing courthouse navigators at one end of the spectrum and published forms and general factual information to individuals the Washington State LLLT and Utah Limited Paralegal who are representing themselves in legal matters.16 Practitioner programs at the other end of the spectrum. It also discusses rules adopted by the Washington C. Florida Supreme Court that created a “Limited Practice Officer,” Effective January 1, 2006, the Supreme Court of Florida who is allowed to engage in the limited practice of law amended its rules governing the unlicensed practice of law with respect to document preparation in real estate to allow “limited oral communications to assist a person in and personal property transactions,4 and more recently, the completion of blanks on a legal form approved by the a “Limited License Legal Technician,” who is allowed Supreme Court of Florida.”17 Legal document preparers are to engage in the limited practice of law in the area of “restricted to those communications reasonably necessary family law. Utah’s recently-approved program to create a to elicit factual information to complete the blanks on the “Limited Paralegal Practitioner” is also addressed, as well form and inform the person how to file the form.”18 Before as Oregon’s recent paralegal licensing proposal. the services may be provided, both the legal document II. Legal Document Preparers preparer and the person receiving the services must sign a disclosure form that contains the limitations placed on the A few states have passed statutes allowing certain legal document preparer’s services.19 limited, law-related tasks, such as document preparation assistance, to be performed by non-lawyers. A couple of D. Nevada states (Arizona and New York) have launched courthouse By statute, Nevada authorizes a legal document preparer navigator programs to help guide self-represented litigants program similar to the programs in Arizona and Florida.20 through the court process in certain areas of law – family However, the Nevada program does not include minimum court in Arizona and housing court in New York.5 The education or competency requirements. Instead, Nevada states with legal document preparer programs are requires legal document preparers to be registered with discussed in this section. the Secretary of State and provides a complaint process 21 A. Arizona and list of suspended or revoked licenses. The Arizona Code of Judicial Administration creates a III. Washington - Limited Practice Officers and LLLTs Legal Document Preparer Program.6 Effective July 1, 2003, In 2009, Washington authorized certain non-lawyers anyone preparing legal documents without the supervision to operate as “Limited Practice Officers” in real estate of an Arizona licensed attorney must be certified under and personal property transactions, after debating a the Arizona Legal Document Preparer Program.7 Legal proposal for several years that would have created a “legal document preparers may provide general legal information technician” who could engage in certain limited non- but cannot give legal advice.8 The services legal document lawyer practice in various areas of the law.22 Ultimately, preparers may provide are specifically described by the Washington Supreme Court approved a “Limited statute.9 They must comply with a comprehensive code License Legal Technician” program and issued its first of conduct that is contained in the statute10 and complete licenses in 2015 to individuals who may provide certain ten hours of approved, continuing training each year that is limited legal services to the public in the area of family law. relevant to document preparation.11 A. Background – The Original Legal Technician Proposal B. California In 2001, the Washington Supreme Court established the In 1998, California passed legislation that created a “legal Washington State Practice of Law Board (the “Board”) document assistant” who may provide “self-help service” to, inter alia, make recommendations regarding the to people who are not represented by an attorney.12 Legal circumstances in which non-lawyers may provide certain document assistants must meet educational and work law-related services.23 Pursuant to that authority, the experience requirements provided by statute.13 They must Board submitted a proposed Admission to Practice Rule also register in the county in which their principal place of (“APR”) authorizing limited non-lawyer practice.24 The business is located and in any county in which they perform proposed APR created a “Legal Technician,” which was services14 and post a $25,000 bond.15 The services that
20 FALL/WINTER 2017 THE PARALEGAL EDUCATOR defined as “a non-lawyer authorized to engage in the B. Limited Practice Officers limited practice of law as specified by this rule and related rules.”25 Meanwhile, effective January 1, 2009, the Washington Supreme Court adopted a new rule, APR 12, which The proposed APR provided certification requirements established a Limited Practice Board and authorized a for Legal Technicians that included education and work Limited Practice Officer (“LPO”), who is allowed to engage experience requirements.26 It also defined the scope in the limited practice of law in the specific area of real of practice authorized, which included informing clients estate and personal property transactions.39 The purpose regarding applicable procedures involved in the client’s of the rule is to “authorize certain lay persons to select, legal proceeding, explaining legal documents, and prepare and complete legal documents incident to the providing the client with self-help materials or completing closing of real estate and personal property transactions approved forms.27 Legal Technicians would have been and to prescribe the conditions of and limitations upon allowed to conduct legal research and prepare legal such activities.”40 APR 12 specifically defines the scope documents if the work was reviewed and supervised of practice in which the LPO may engage and the specific by an attorney.28 conditions under which the LPO may prepare legal documents.41 The Limited Practice Board is responsible for Under the proposal, Legal Technicians would have been establishing the education and examination requirements required to complete continuing education requirements for certification as an LPO, processing LPO applications, to be prescribed by the Non-lawyer Practice Commission investigating complaints regarding LPO conduct, and 29 that the proposed APR would create. They would enforcing LPO regulations.42 have also been encouraged to render at least 30 hours of pro bono services each year.30 Legal Technicians C. Limited License Legal Technicians would have been held to the same standard of care and ethical standards as lawyers and required to show proof In 2015, the Washington Supreme Court issued its first of financial responsibility to respond to any damages licenses to paraprofessionals authorized to provide certain 43 resulting from the performance of their services.31 limited legal services in the area of family law. The Limited License Legal Technician (LLLT) is authorized to do In 2006, the Board established four subcommittees to the following in the approved practice area: investigate the feasibility of “a legal technician pilot project in four areas of law: elder law, family law, housing 1) Obtain relevant facts and explain the relevance law, and immigration law.”32 Each subcommittee held to the client; meetings and public hearings and subsequently issued subcommittee reports to the Board in September 2007.33 2) Inform the client of procedures, including The Immigration Law Subcommittee concluded that its deadlines and documents that must be filed, and area was not appropriate for legal technician practice, and the Board agreed.34 The Board concluded that the the anticipated course of the proceeding; other three areas were appropriate and made its proposal to the Washington Supreme Court for the approval of 3) Inform the client of procedures for filing legal technician practice in one area at first – family documents and service of process; law.35 Legal Technicians would have been “authorized to assist clients in representing themselves in dissolution 4) Provide the client with self-help materials proceedings, proceedings for legal separation and decrees prepared by a lawyer or approved by the Practice of invalidity, as well as non-parental custody proceedings and parentage actions.”36 However, Legal Technicians of Law Board; would not have been allowed to “‘represent’ or speak for 5) Review documents or exhibits of the opposing their clients.”37 The proposal narrowly defined the range of tasks the certified Legal Technician would have been party and explain them to the client; allowed to undertake in the area of family law and the specifically prohibited tasks.38 No other action was taken 6) Select, complete, file, and effect service regarding a proposed legal technician until the Washington of approved forms, federal forms, forms the Supreme Court ultimately adopted a “Limited License Legal content of which is specified by statute, or forms Technician” and licensed its first LLLTs in 2015.
THE PARALEGAL EDUCATOR FALL/WINTER 2017 21 prepared by a lawyer, and advise the client of the to represent a client in negotiations, but anyone in Utah significance of the forms; may represent someone in mediated negotiations under current law.53 7) Perform legal research; The Utah Supreme Court approved the task force’s recommendation that Utah create a Limited Paralegal 8) Draft legal letters and documents beyond what Practitioner (LPP) who could provide “discrete legal is permitted if the work is reviewed and approved services” in three practice areas: 1) temporary separation, by a lawyer; divorce, paternity, cohabitant abuse and civil stalking, custody and support, and name change; 2) eviction; and 3) 9) Advise the client about other documents that debt collection.54 An LPP could 1) establish a contractual may be necessary to the client’s case and explain relationship with a client; 2) conduct client interviews; 3) complete court-approved forms and provide advice on the effect of the documents; and which form to use, how to complete and file it, and the anticipated course of proceedings; 4) represent a client 10) Assist the client in obtaining necessary in mediated negotiations and perhaps in unmediated documents or records, such as birth, death, or negotiations; 5) prepare written settlement agreements; marriage records.44 and 6) “advise a client about how a court order affects the client’s rights and obligations.”55 The task force The LLLT is not allowed to represent a client in court or in recommended that the requirements to become an LPP negotiations.45 be 1) either a J.D. degree or an associate degree with a paralegal certificate from an ABA-approved program The minimum requirements for an LLLT are an associate plus 2) a Certified Legal Assistant or Paralegal (CLA/CP) degree, 45 credits of instruction in paralegal studies, and designation through the National Association of Legal instruction in the approved practice area (currently 15 Assistants, 3) completion of a course of instruction for credit hours in family law offered through law schools).46 the approved practice area, and 4) experience working Applicants must pass a core curriculum exam and practice (through employment, internships, or clinics) under the area exam and have completed 3,000 hours of substantive supervision of an attorney.56 The details regarding the legal work under the direction of an attorney no more regulatory requirements and qualifications must still be than three years before licensure or more than three years developed and approved by the Utah Supreme Court. after completing the examinations.47 LLLTs must also carry malpractice insurance.48 Ten applicants took the Fall V. Oregon’s Paralegal Licensing Proposal 2016 LLLT Family Law Practice Area Examination, and six candidates passed the exam.49 In June 2017, the Oregon State Bar’s Futures Task Force recommended a legal paraprofessional licensure IV. Utah – Limited Paralegal Practitioners framework that would allow individuals with the requisite paralegal education and training to represent self- In November 2015, the Utah Supreme Court Task Force represented litigants in certain family law and landlord- to Examine Limited Legal Licensing issued its report and tenant proceedings.57 The Oregon proposal is based on an recommendations after studying the legal document examination of Ontario, Canada, as well as the Washington preparer programs and the programs or proposals for and Utah programs and the few states with legal document limited licensing in several other states, including the preparer programs,58 discussed previously in this article. Washington LLLT program and the proposals being However, unlike the Utah LPP program, the Oregon 50 The task force considered in California and Oregon. proposal is just a recommendation of its state bar task concluded that the Washington LLLT program is “not the force at this point. right fit for Utah” for two reasons.51 First, the Washington program is “so arduous that it remains to be seen whether VI. Conclusion LLLTs can provide services at rates significantly less than those provided by lawyers.”52 Second, Utah’s restrictions Although there are a number of states that allow legal on the practice of law are already more liberal in some document assistance, at this time no state other than areas. For example, a Washington LLLT is not allowed Washington has implemented a licensing mechanism for non-lawyer practice. In response to the LLLT program
22 FALL/WINTER 2017 THE PARALEGAL EDUCATOR in Washington and proposals to allow similar forms of ARIZ. CODE JUD. ADMIN. § 7-208(A) (2010). non-lawyer practice in other states, Vermont chose to 7 Id. § 7-208(E)(3), (4). recommend a certification program for paralegals instead 8 Id. § 7-208(F)(1)(b). of a proposal for non-lawyer practice.59 Utah’s Limited 9 The code defines the services authorized as follows: Paralegal Practitioner is also tied more to paralegal practice, although it will allow independent representation a. Prepare or provide legal documents, without the supervision of an attorney, for an entity or a member of the public in any legal matter if the task force recommendations are implemented as when that entity or person is not represented by an attorney; approved by the Utah Supreme Court. Even more recently, b. Provide general legal information, but may not provide any kind the Oregon State Bar’s Futures Task Force recommended of specific advice, opinion, or recommendation to a consumer about a limited paralegal licensing scheme to assist pro se possible legal rights, remedies, defenses, options, or strategies; litigants in more routine family law and landlord-tenant c. Provide general factual information pertaining to legal rights, 60 proceedings. This might suggest a renewed effort in procedures, or options available to a person in a legal matter when that some states to consider the expanded use of qualified, person is not represented by an attorney; even regulated, paralegals as part of the solution to the d. Make legal forms and documents available to a person who is not problem of access to justice. represented by an attorney; and Biography e. File and arrange for service of legal forms and documents for a person Lynn Crossett is an Associate Professor of Political Science at in a legal matter when that person is not represented by an attorney. Texas State University and the Director of the Legal Studies Program, a graduate-level program offering both a Master of Id. § 7-208(F)(1). Arts in Legal Studies Degree and a post-baccalaureate Paralegal 10 Id. § 7-208(F)(2). Studies Certificate. He is the current Chair of the American Bar 11 Id. § 7-208(G)(4). Association Standing Committee on Paralegals and a longtime 12 member of the Standing Committee on Paralegals for the State CAL. BUS. & PROF. CODE ANN. § 6400(c) (West 2010). A “Legal Bar of Texas. He is the co-author of The Texas Paralegal (Cengage document assistant” means: 2010) and a frequent writer and presenter on topics related to the (1) Any person who is not exempted under Section 6401 and who paralegal profession and paralegal regulation. provides, or assists in providing, or offers to provide, or offers to assist in providing, for compensation, any self-help service to a Endnotes member of the public who is representing himself or herself in a legal 1 See Utah Supreme Court Task Force to Examine Limited Legal Licensing, matter, or who holds himself or herself out as someone who offers Report and Recommendations, November 18, 2015, available at that service or has that authority. This paragraph does not apply to any individual whose assistance consists merely of secretarial or http://www.utcourts.gov/committees/limited_legal/Supreme%20Court%20 receptionist services. Task%20Force%20to%20Examine%20Limited%20Legal%20Licensing.pdf. (2) A corporation, partnership, association, or other entity that 2 Jessica Miller, A New Kind of Paralegal is Coming to Help Utahns Navigate employs or contracts with any person not exempted under Section the Court System, SALT LAKE TRIBUNE (December 15, 2015), available 6401 who, as part of his or her responsibilities, provides, or assists at http://sltrib.com/csp/mediapool/sites/sltrib/pages/printfriendly. in providing, or offers to provide, or offers to assist in providing, for csp?id=3307300. compensation, any self-help service to a member of the public who 3 The Vermont Joint Commission on the Future of Legal Services, Final is representing himself or herself in a legal matter or holds himself or Reports and Recommendations of the First Year Study Committees, herself out as someone who offers that service or has that authority. September 24, 2015, available at http://sbmblog.typepad.com/files/ This paragraph does not apply to an individual whose assistance vermont-futures-commission-report.pdf. consists merely of secretarial or receptionist services. 4 Washington State Bar Association – Rules and Regulations for the Limited Id. Practice Board and LPO, http://www.wsba.org/info/lpo-rules.htm. 13 Id. § 6402.1. The specific requirements for registration are as follows: 5 See ABA Commission on the Future of Legal Services, Issues Paper Concerning New Categories of Legal Services Providers, October 16, 2015, (a) A high school diploma or general equivalency diploma, and either a available at https://www.americanbar.org/content/dam/aba/images/office_ minimum of two years of law-related experience under the supervision president/delivery_of_legal_services_completed_evaluation.pdf of a licensed attorney, or a minimum of two years experience, prior to January 1, 1999, providing self-help service. 6 Arizona’s definition of a “legal document preparer” is as follows: “Legal document preparer” means an individual who is certified pursuant (b) A baccalaureate degree in any field and either a minimum of one to this section to prepare or provide legal documents, without the year of law-related experience under the supervision of a licensed supervision of an attorney, for an entity or a member of the public who attorney, or a minimum of one year of experience, prior to January 1, 1999, providing self-help service. is engaging in self representation in any legal matter. An individual whose assistance consists merely of secretarial or receptionist services is not a (c) A certificate of completion from a paralegal program that is legal document preparer. institutionally accredited but not approved by the American Bar
THE PARALEGAL EDUCATOR FALL/WINTER 2017 23 Association, that requires successful completion of a minimum of 24 33 State of Washington Practice of Law Board Legal Technician Proposal, semester units, or the equivalent, in legal specialization courses. January 7, 2008, http://www.wsba.org/lawyers/groups/practiceoflaw/re-
porttocourt.pdf. (d) A certificate of completion from a paralegal program approved by the American Bar Association. 34 Id. Id. 35 Id. 14 Id. § 6402. 36 Id. (citations omitted). 15 Id. § 6405. 37 Id. 16 Id. § 6400(d). The “self-help service” that legal document assistants can 38 Id. perform is defined as: 39 Washington State Bar Association – Rules and Regulations for the Limited Practice Board and LPO, http://www.wsba.org/info/lpo-rules.htm. (1) Completing legal documents in a ministerial manner, selected by 40 Washington State Admission to Practice Rule 12: Limited Practice Rule a person who is representing himself or herself in a legal matter, by for Limited Practice Officers, available at http://www.wsba.org/info/par- typing or otherwise completing the documents at the person’s specific t1apr12.pdf. direction.
41 Id. Rule 12(d), (e). (2) Providing general published factual information that has been written or approved by an attorney, pertaining to legal procedures, 42 Id. Rule 12(b). rights, or obligations to a person who is representing himself or herself 43 Limited License Legal Technician Program, http://www.wsba.org/licens- in a legal matter, to assist the person in representing himself or herself. ing-and-lawyer-conduct/limited-licenses/legal-technicians. This service in and of itself, shall not require registration as a legal 44 document assistant. Washington State Admission to Practice Rule 28F, available at
(3) Making published legal documents available to a person who is https://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga representing himself or herself in a legal matter. &set=APR&ruleid=gaapr28
45 Id. (4) Filing and serving legal forms and documents at the specific direction of a person who is representing himself or herself in a legal 46 See Washington State Admission to Practice Rule 28D, available at matter. https://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga Id. &set=APR&ruleid=gaapr28 17 FLA. BAR R. 10-2.1(a) (2006). 47 Id. 18 Id. 48 Id. 19 Id. 49 Limited License Legal Technician Program, http://www.wsba.org/licens- ing-and-lawyer-conduct/limited-licenses/legal-technicians. 20 ABA Commission on the Future of Legal Services, Issues Paper Concerning New Categories of Legal Services Providers, October 16, 2015, 50 Utah Supreme Court Task Force to Examine Limited Legal Licensing, available at https://www.americanbar.org/content/dam/aba/images/ Report and Recommendations, November 18, 2015, available at office_president/delivery_of_legal_services_completed_evaluation.pdf http://www.utcourts.gov/committees/limited_legal/Supreme%20Court%20 21 Id. (citing Nev. Rev. Stat. Ann. § 240A.030 (West 2014)). Task%20Force%20to%20Examine%20Limited%20Legal%20Licensing.pdf. 22 Washington State Bar Association – Rules and Regulations for the Limited 51 Id. at 29. Practice Board and LPO, http://www.wsba.org/info/lpo-rules.htm. 52 Id. 23 Washington State Practice of Law Board, http://www.wsba.org/lawyers/ 53 Id. groups/practiceoflaw/default.htm 54 Id. at 8. 24 Washington State Practice of Law Board New Admission to Practice Rule ___: Limited Practice Rule for Legal Technicians, www.wsba.org/lawyers/ 55 Id. at 9. groups/practiceoflaw/2006currentruledraftfinal2.pdf. 56 Id. at 35. 25 Id. at 1. 57 Oregon State Bar Futures Task Force, Executive Summary, The Future of 26 Id. at 2-3. Legal Services in Oregon (June 2017), available at https://www.osbar.org/_ docs/resources/taskforces/futures/FuturesTF_Summary.pdf. 27 Id. at 3-4. 58 Oregon State Bar Futures Task Force, Reports and Recommendations of 28 Id . the Regulatory Committee and Innovations Committee (June 2017), at 9-16, 29 Id. at 5-6. available at https://www.osbar.org/_docs/resources/taskforces/futures/ FuturesTF_Reports.pdf. 30 Id. at 6. 59 See The Vermont Joint Commission on the Future of Legal Services, Final 31 Id. Reports and Recommendations of the First Year Study Committees, Sep- 32 Legal Technician Rule Proposal, http://www.wsba.org/lawyers/groups/ tember 24, 2015, available at http://sbmblog.typepad.com/files/vermont- practiceoflaw/legal+technician+rule.htm. futures-commission-report.pdf. 60 Oregon State Bar Futures Task Force, Executive Summary, supra note 4, at 7.
24 FALL/WINTER 2017 THE PARALEGAL EDUCATOR By Kerin E. Coughlin - City University of New York, New York City College of Technology
#ParalegalEd: Capitalizing on the Popularity of Social Media
Abstract fad.11 And the areas of legal practice in which social media Social media has become ubiquitous in our daily lives and has been most prominent include those in which paralegals is increasingly present in legal practice. As statistics as well tend to be integrally involved. As paralegal educators, this as the judicial community indicate, this trend shows no situation presents an exciting opportunity. We can help our signs of slowing down. Paralegal educators have an exciting students translate their personal interest in social media into opportunity to help our students capitalize on their personal valuable skills that will advance their professional careers. fluency with social media by translating it into career- By facilitating their familiarity with these and other ways advancing skills. This article addresses how social media is to use social media, as well their conceptualization of new used in legal practice and how paralegal educators can prepare possibilities, we can help them enhance their competence our students for careers in a legal world that includes it. First, and marketability. this article provides some background on social media. Next, it discusses specific ways social media has been, and can be, Social Media Background used in legal practice, focusing on areas in which paralegals Social media, in its basic form, has been around for about frequently work. Finally, this article identifies some issues twenty years. The first website enabling users to upload paralegals and educators should keep in mind when preparing profiles and become virtual “friends,” called “Six Degrees,” to work with social media. started in 1997.12 Social media as we know it today – Facebook, Twitter, etc. – emerged in the early 2000s.13 Since Introduction then, social media has grown rapidly. In 2005, only five Social media – the Internet-based communication channels percent of American adults used it; by 2016, 69 percent did.14 such as Facebook, Twitter, and the infinite blogs used to By January 2017, more than a third of the world’s population keep in touch with family and friends, learn about news, and actively used social media. See Figure 1.15 express opinions – is ubiquitous in our daily lives.1 This may be especially true for our students, most of whom are in the age range with the highest social media use.2 In recent years, social media has also become increasingly present in legal practice. It has been offered as evidence of confusion in false advertising cases,3 it has indicated illegal conduct among business competitors,4 it has undermined plaintiffs’ claims of physical suffering in personal injury cases,5 it has served as circumstantial evidence of criminal conduct,6 and it has been used to notify class members of developments in class action cases.7 Indeed, social media has appeared in virtually all areas of law, including family (social media posts can affect alimony, child support, and custody decisions),8 real estate (social media marketing raises new legal issues),9 and even probate (USA.gov recommends “social media wills” including “online Figure 1 executors” to handle accounts after death).10 As statistics as well as the judiciary have indicated, the use of social media in legal practice does not appear to be a
THE PARALEGAL EDUCATOR FALL/WINTER 2017 25 Every sixty seconds, users generate 3.3 million Facebook posts, Pollard Court’s regard for social media in providing notice. In 448,800 Twitter tweets, 66,000 Instagram photos, and 1,400 its proposed amendments to Federal Rule of Civil Procedure blog posts. See Figure 2.16 23’s notice requirements, the Committee acknowledged the benefits of electronic notice.23 Rule 23(c)(2)(B) currently requires “the best notice that is practicable under the circumstances.” However, it does not identify any particular methods of notice that are acceptable. In 1974, the Supreme Court interpreted Rule 23(c)(2)(B) in Eisen v. Carlisle & Jacquelin.24 The Court held that when the Rule was applied to the case at hand, it required “individual notice [to] be mailed to each” class member.25 Thereafter, courts interpreted Rule 26 Figure 2 23(c)(2)(B) to require notice by U.S. mail in every case. Now, the Committee on Rules of Practice and Procedure proposes All this communication provides fertile ground for use in legal adding the following clarification to the Rule: “The notice practice – and thus, for education of paralegal students. may be by United States mail, electronic means, or other appropriate means.”27 In its note explaining the proposed Uses of Social Media in Legal Practice amendment, the Committee observes that “other forms of communication [besides U.S. mail] may be more reliable and Class Notice important to many. Courts and counsel have begun to employ Federal Rule of Civil Procedure 23 requires that members new technology to make notice more effective, and sometimes of a plaintiff or defendant class in a class action lawsuit less costly. Because there is no reason to expect that be provided notice when the class has been certified and technological change will halt soon, courts giving notice under when a settlement has been proposed.17 Paralegals at firms this rule should consider current technology”28 – including handling class actions frequently participate in devising and social media, as Pollard and other cases demonstrate.29 executing notice plans and in supporting objections to such plans. In Pollard v. Remington Arms, a 2017 deceptive trade The amendment, if approved, will take effect December 1, practices case, the U.S. District Court for the Western District 2018.30 Even sooner, paralegals may be called on to assist of Missouri described social media as the “lynchpin” of the in developing, or challenging, class notice plans. We should class settlement notice plan.18 Initially, the parties proposed enable them to embark on that process with an awareness of a notice plan that consisted primarily of traditional methods the potential role of social media in providing notice, and thus such as U.S. mail and print ads, plus only “some Facebook significantly enhance their value to their colleagues and clients. advertising.”19 The execution of that original plan resulted Consumer Perceptions in “an appalling claims rate,” so the court ordered the parties Consumer perceptions can be critical in business litigation, to develop a supplemental plan.20 The supplement was the another area in which many of our students will work at some inverse of the original in that it focused on social media, and point. The fame of a given brand or mark, any confusion paper-based forms of notice were secondary.21 The resulting between competing products, the effects on consumers from claims rate was significantly better, and the settlement was a company’s conduct – all of these issues require examination ultimately approved. In the court’s decision granting final of consumers’ thoughts. Traditionally, those thoughts have approval of the settlement, it extolled the effectiveness of been discerned through surveys.31 However, as the U.S. social media in providing notice: District Court for the District of Delaware noted, social media Through this method of notice, the notice may in fact “be more reliable than broad-based surveys, reached more than four million individuals, insofar as they represent direct feedback from consumers and the advertisements were clicked more specifically interested in the product(s) at issue.”32 In other than 375,000 times. Given the popularity of words, social media captures consumers’ thoughts in a raw, social media in the United States, the use of contemporaneous, candid form unavailable from any targeted social media to notify class members other source. was yet another reasonable component of For this reason, and because social media is largely publicly the notice plan . . . .22 accessible, it can also be useful in preliminarily assessing The Committee on Rules of Practice and Procedure of the cases before filing complaints or determining responsive Judicial Conference of the United States appears to share the strategies. For example, in Hickcox-Huffman v. US Airways, a
26 FALL/WINTER 2017 THE PARALEGAL EDUCATOR class of US Airways customers sued the airline over its refusal Issues to Consider When Using Social Media to refund checked-bag fees for bags that did not reach their in Litigation destinations.33 Hypothetically, before filing, plaintiffs’ counsel might have gauged the viability of the claim by investigating Social Media as a Supporting Player the frequency, locations, and timing of such occurrences, and Paralegal educators should impress upon our students that, how consumers responded to them, through social media at least until courts and clients become more comfortable searches.34 Indeed, a quick Twitter search for “bag did not with social media in legal practice, it should be assigned a arrive” produced well over a hundred unhappy tweets, such as supporting rather than starring role. In Pollard, the class the one shown in Figure 3. action discussed supra, though the court praised social media for providing notice, it also reminded the parties that they still need to use paper-based and other traditional forms, adding: “the use of targeted social media to notify class members was yet another reasonable component of the notice plan, especially when combined with all other forms and methods of notice utilized in this matter.”39 Likewise, the Committee on Rules of Practice and Procedure in its proposed amendment permitting electronic notice under Rule 23, cautions: “keep in mind that a significant portion of class members in certain cases may have limited or no access to email or the Internet. Instead of preferring any one means of notice, therefore, courts and counsel should focus on the means most likely to be effective in the case before the court.”40 These statements illustrate that paralegal students should continue to be taught traditional litigation principles and skills while at the same Figure 3 time are investigating and acquiring more technologically advanced abilities. Such searches can be conducted by properly-trained paralegals to provide invaluable indicia of how counsel should proceed. Authentication As cases progress, paralegals can work with social media Thus far, courts have appeared reluctant to admit social media specialists to develop and execute more sophisticated analyses evidence, at least in commercial contexts. In QVC Inc. v. Your to produce the quantitative evidence needed to win (or Vitamins Inc., plaintiff QVC offered blog posts as evidence of defeat) a case. consumer reaction to defendant’s alleged false advertising. The District of Delaware rejected them as unauthenticated Evidence of Conduct and the Third Circuit affirmed, explaining: Paralegals can also search social media for statements that Comments left on blog posts can be very difficult indicate (or contraindicate) illegal conduct, and thus contribute to authenticate. The use of false identities in to the factual basis of a case. In Re: Disposable Contact Lens Internet forums is now a well-known tactic for Antitrust Litigation was a consumer class action against contact attacking corporate rivals . . . . [E]ven if a poster lens manufacturers and distributors alleging a conspiracy to fix is genuine and making a comment in good faith, prices of contact lenses.35 In June 2016, the U.S. District Court whether he or she would fall in to the universe of for the Middle District of Florida denied defendants’ motion consumers whose opinions are relevant (i.e., those to dismiss, largely based on plaintiffs’ allegations of collusive who are or potentially might be purchasers of the statements on social media.36 Similarly, in Nestle Purina products in question) often cannot be known.41 PetCare Co. v. Blue Buffalo, dog food seller Blue Buffalo sued competitor Purina for false advertising based partly on Purina’s Similarly, in Moroccanoil, Inc. v. Marc Anthony Cosmetics, Facebook and Twitter posts about Blue Buffalo’s product.37 Inc., the Central District of California rejected screen shots In April 2015, the Eastern District of Missouri also denied the from Facebook as evidence of trademark infringement, motion to dismiss in that case largely because of the social warning: “Anyone can put anything on the internet.”42 These media allegations.38 cases indicate that paralegal educators should ensure that students fully understand and can apply the requirements for authentication and are prepared to face particular challenges when authenticating social media evidence.
THE PARALEGAL EDUCATOR FALL/WINTER 2017 27 More recently, however, courts have appeared more willing of custody and other indicia of authenticity. Finally, because to accept the authentication of social media evidence, at least social media tends to take a casual, conversational tone, it in criminal contexts. In State v. Hannah, a 2016 New Jersey is critical that authors’ substantive intent be determined case, the defendant appealed the admission of a Twitter post accurately. (tweet) that included her picture and Twitter “handle,” but that she claimed she did not write.43 Her argument echoed Paralegals can be trained in many skills involved in these the Third Circuit’s skepticism noted above that because of procedures in the classroom as well as on the job. For “the potential for abuse and manipulation of a social maximum integrity and reliability, the training should be networking site . . . images from such a site require greater conducted by an experienced social media expert – ideally scrutiny than letters and other paper records.”44 New Jersey’s assisted by well-educated paralegals who can provide appellate court rejected this position, explaining: meaningful substantive and technical input. [A]lthough rapidly developing electronic Conclusion communications technology often presents The emergence of social media into the legal world offers new and protean issues with respect to the several takeaways for paralegal educators. First, social media admissibility of electronically generated, is here to stay, not only in our personal lives, but also in law, so transmitted and/or stored information, we may as well take advantage of it and the benefits it offers including information found on social our students. Second, those benefits are many. Though the networking web sites, the rules of evidence uses of social media in law are still becoming known, a paralegal already in place for determining authenticity entering the job market aware even of the ones apparent now, are at least generally adequate to the task. . and the likelihood of more, will have a significant advantage. . . Defendant argues a tweet can be easily Finally, everyone involved – educators, paralegals, employers – forged, but so can a letter or any other kind should proceed with caution. It is not (yet) time to abandon of writing. The simple fact that a tweet is traditional litigation methods, such as notice by U.S. mail created on the Internet does not set it apart and paper-based evidence. Nor should we stop teaching our from other writings. Accordingly, we apply students about these methods and the law that controls them. our traditional rules of authentication.45 Rather, we should take a multi-track approach, continuing to equip our students with the foundational knowledge and Under those rules, the tweet was deemed properly skill bases they need, while at the same time cultivating their authenticated.46 natural enthusiasm for technology to maximize their effective Similarly, in United States v. Browne, the defendant participation in the justice system. appealed the admission of Facebook “chats” between him Biography and his victims on the ground that they were not properly Kerin E. Coughlin is Assistant Professor of Law and Paralegal Studies authenticated because no witness had identified them on at the City University of New York, NYC College of Technology. She the stand.47 The Third Circuit rejected this argument, finding is also a Senior Consultant with Voluble Insights, the social media the chats properly authenticated through the “conventional” analysis division of business litigation consulting firm Global Business means of extrinsic evidence, including a certificate of Experts Group, and a former antitrust and commercial litigator. authenticity provided by Facebook.48 Like the New Jersey In addition, Kerin is pursuing a Ph.D. in History at the City University court, the Third Circuit acknowledged the “challenges” of of New York Graduate Center, where her research focuses on legal social media evidence, including “the great ease with which a history. Kerin can be contacted at [email protected]. 49 social media account may be falsified[.]” But it nonetheless Endnotes held: “it is no less proper to consider a wide range of evidence 1 See Felim McGrath, Top 10 Reasons for Using Social Media, Global Web for the authentication of social media records than it is for Index (June 7, 2017), http://blog.globalwebindex.net/chart-of-therhe-day/ more traditional documentary evidence.”50 social-media/ (last visited July 24, 2017); Social Media, http://whatis. techtarget.om/definition/social-media (last visited July 24, 2017). Technical Issues 2 In 2016, 86% of 18-29 year olds used social media, and 80% of 30-49 year Social media can be invaluable in legal practice – but it is only olds used it. Social Media Fact Sheet, Pew Research Center (Jan. 12, 2017), as valuable as the care and efficacy with which it is collected http://www.pewinternet.org/fact-sheet/social-media/ (last visited Aug. 29, and used. For example, it is essential to obtain a “clean” pool 2017). Paralegal students’ average age has been estimated at 36-38. David of evidence that excludes irrelevant and unauthentic posts Lat, The Power of a Paralegal Degree: Experts Weigh In, Above The Law (June 16, 2011), http://abovethelaw.com/2011/06/the-value-of-a-paralegal-degree- such as bot and commercial posts. In addition, relevant posts experts-weigh-in/ (last visited Aug. 29, 2017). must be captured and stored appropriately with a clear chain
28 FALL/WINTER 2017 THE PARALEGAL EDUCATOR 3 See, e.g., QVC Inc. v. Your Vitamins, Inc., 714 F. Supp. 2d 291 (D. Del. 2010), 20 Id. at *2, *7. aff’d, 439 Fed. Appx. 165 (3d Cir. 2011) (discussed infra). 21 Id. at *7. 4 See In re: Disposable Contact Lens Antitrust, 215 F. Supp. 3d 1272 (M.D. Fla. 22 Id. at *11 (emphasis added; citation to record omitted). 2016) (discussed infra); Nestle Purina PetCare Co. v. The Blue Buffalo Co. Ltd., 23 Comm. on Rules of Practice & Procedure of the Judicial Conference of No. 4:14 CV 859 RWS, 2015 WL 1782661 (E.D. Mo. Apr. 20, 2015). the United States, Preliminary Draft of Proposed Amendments to the Federal 5 See Orr v. Macy’s Retail Holdings, Inc., 2016 WL 6246798 (S.D. Ga. Oct. 24, Rules of Appellate, Bankruptcy, Civil and Criminal Procedure 211-32 (Aug. 2016); Nucci v. Target Corp., 162 So. 3d 146 (Fla. Dist. Ct. App. 2015); Romano 2016), available at http://www.uscourts.gov/sites/default/files/preliminary_ v Steelcase Inc., 30 Misc. 3d 426 (Sup. Ct. N.Y. Co. 2010). draft_2016-07-01.pdf) (last visited July 24, 2017) [hereinafter Proposed 6 See United States v. Browne, 834 F.3d 403 (3d Cir. 2016); State v. Hannah, Amendments]. 24 151 A.3d 99 (N.J. Super. Ct. 2016) (both discussed infra). Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). 25 7 See, e.g., Pollard v. Remington Arms Co., LLC, Case No. 4:13-CV-00086-ODS, Id. at 175. 2017 WL 991071 (W.D. Mo. Mar. 14, 2017) (discussed infra). 26 Proposed Amendments, supra n.23, Fed. R. Civ. P. 23 note at 218 (citing 8 See William Morrow, A Look at How Social Media is Impacting Divorce Eisen). Cases, Huffington Post (June 23, 2016, updated June 24, 2017), http://www. 27 Id. at 211-12 (emphases added). huffingtonpost.com/william-morrow/a-look-at-how-social-medi_b_10633940. 28 Id. at 218-19 (emphasis added); html (last visited Aug. 30, 2017). 29 See Elizabeth M.C. Scheibel, #rule23 #classaction #notice, 42 Mitchell 9 See Andrew Lustigman & Mary Grieco, Social Media Considerations for Real Hamline L. Rev. 1331 (2016) (arguing that Rule 23(c)(2)(B) and constitutional Estate Companies, Bloomberg BNA (Mar. 16, 2016), https://www.bna.com/ due process require use of social media and other newer communication social-media-considerations-n57982068608/ (last visited Aug. 30, 2017). technology to provide notice, and citing cases). 10 See Jacoba Urist, The Social Media Will: An Expert Guide to Your Digital 30 Proposed Amendments, supra n.23, at 4. Afterlife, The Atlantic (May 14, 2012), https://www.theatlantic.com/ 31 See AT&T Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1443 (3d technology/archive/2012/05/the-social-media-will-an-expert-guide-to-your- Cir. 1994) (“The success of the [false advertising] claim usually turns on the digital-afterlife/257112/ (last visited Aug. 30, 2017). persuasiveness of a consumer survey.”) (citation and alteration omitted). 11 For statistics, see discussion infra “Social Media Background.” For judicial 32 QVC Inc. v. Your Vitamins, Inc., 714 F. Supp. 2d 291, 302 n.19 (D. Del. 2010), statements, see discussion infra “Uses of Social Media: Class Notice,” quoting aff’d, 439 Fed. Appx. 165 (3d Cir. 2011). Pollard, 2017 WL 991071, at *11 (acknowledging “the popularity of social 33 media in the United States”); and the Committee on Rules of Practice and Hickcox-Huffman v. US Airways, 855 F.3d 1057 (9th Cir. 2017). Procedure of the Judicial Conference of the United States, Preliminary Draft of 34 This discussion is entirely hypothetical; I have no personal knowledge of, Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil and nor involvement in, this case. Criminal Procedure 218-19 (Aug. 2016) [hereinafter Proposed Amendments] 35 In Re: Disposable Contact Lens Antitrust Litigation, 215 F. Supp. 3d 1272 (“there is no reason to expect that technological change will halt soon”). (M.D. Fla. 2016). 12 Drew Hendricks, Complete History of Social Media: Then and Now, Small 36 Id. at 1294-1306. Business Trends (May 8, 2013), https://smallbiztrends.com/2013/05/the- 37 Nestle Purina PetCare Co. v. The Blue Buffalo Co. Ltd., No. 4:14 CV 859 RWS, complete-history-of-social-media-infographic.html (last visited June 24, 2017). 2015 WL 1782661 (E.D. Mo. Apr. 20, 2015). 13 See, e.g., Nicholas Carlson, At Last – The Full Story of How Facebook Was 38 Id. at *11. Founded, Business Insider (Mar. 5, 2010), http://www.businessinsider.com/ 39 how-facebook-was-founded-2010-3 (last visited July 18, 2017); Nicholas Pollard, 2017 WL 991071, at *11 (emphases added). Carlson, The Real History of Twitter, Business Insider (Apr. 13, 2011), http:// 40 Proposed Amendments, supra n.23, Fed. R. Civ. P. 23 note at 219. www.businessinsider.com/how-twitter-was-founded-2011-4 (last visited July 41 QVC Inc. v. Your Vitamins, Inc., 439 Fed. Appx. 165, 168-69 (3d Cir. 2011) 18 2017); A Brief History of Blogging, WebdesignerDepot (Mar. 14, 2011), (citations omitted). https://www.webdesignerdepot.com/2011/03/a-brief-history-of-blogging/ 42 Moroccanoil, Inc. v. Marc Anthony Cosmetics, Inc., 57 F. Supp. 3d 1203, (last visited July 18, 2017). 1213 n.5 (C.D. Cal. 2014) (citation omitted). 14 Social Media Fact Sheet, supra n.2. 43 State v. Hannah, 151 A.3d 99 (N.J. Super. Ct. 2016). 15 Simon Kemp, Digital in 2017: Global Overview, We Are Social (Jan. 24, 44 Id. at 105 (quoting Griffin v. State, 419 Md. 343, 423-24 (2011)) (emphasis 2017), https://wearesocial.com/special-reports/digital-in-2017-global- added; internal quotation marks and alterations omitted). overview (last visited June 24, 2017). 45 Id. at 106 (quoting Tienda v. State, 358 S.W.3d 663, 638-39 (Tex. Crim. App. 16 What happens online in 60 seconds, Smart Insights, http://www. 2012), and citing N.J.R.E. 901). smartinsights.com/internet-marketing-statistics/happens-online-60-seconds/ attachment/what-happens-online-in-60-seconds/ (last visited July 24, 2017); 46 Id. at 107 (citing “[o]ther courts [that] have admitted tweets applying Nick Schafer off, 13 Surprising WordPress Statistics (Oct. 18, 2016), https:// their similar authentication standard”). torquemag.io/2016/10/13-surprising-wordpress-statistics-updated-2016/ 47 United States v. Browne, 834 F.3d 403 (3d Cir. 2016). (last visited July 24, 2017); Puranjay Singh, 2 Million Blog Posts Are Written 48 Id. at 411-12 (citing Fed. R. Evid. 901(b)), 413-14 (describing extrinsic Every Day, Here’s How You Can Stand Out (May 18, 2015), http://www. evidence). marketingprofs.com/articles/2015/27698/2-million-blog-posts-are-written- 49 Id. every-day-heres-how-you-can-stand-out (last visited July 24, 2017). at 412. 17 Fed. R. Civ. P. 23(c)(2)(B) & (e)(1). 50 Id.; see also id. at 413 (citing several Courts of Appeals that agree 18 Pollard v. Remington Arms Co., LLC, No. 4:13–CV–00086–ODS, 2017 WL with this conclusion). 991071, at *11 (W.D. Mo. Mar. 14, 2017). 19 Id. at *2 (emphasis added). THE PARALEGAL EDUCATOR FALL/WINTER 2017 29 By Mike Wilson, J.D. - Sullivan University, Lexington Campus Conflicts When Representing Estates: Questions for Students
Wonderful questions for research assignments The attorney’s concern will be exposure to ethics violations or essay questions in an ethics class or an estate and malpractice claims committed while performing services for the fiduciary or communicating to the beneficiaries. administration class can be fashioned around a fact Unless, perhaps, the fiduciary is the sole beneficiary, there pattern involving representation of an “estate.” are potential conflicting claims and confidentiality issues. The Who is the client? The Administrator or Executor? majority view is that the fiduciary, not the beneficiaries, is the client. This view is endorsed in ABA Formal Opinion 94- The beneficiaries? The estate entity? The deceased? 380 and explained in many cases, such as Goldberg v. Frye, Some combination? Potentially in play are 217 Cal. App. 3d 1258 (Cal. Ct. App. 1990). conflicting duties of confidentiality and loyalty. Even under this view, however, the attorney for the fiduciary Comment 12 to Rule 1.7 in the ABA Model Rules of may owe the same duties to beneficiaries as he or she would Professional Conduct points out that when an attorney owe to any non-client. Additionally, activities commonly represents an estate, “the identity of the client may be undertaken by estate attorneys, such as communicating unclear under the law of a particular jurisdiction. Under one information to the beneficiaries about the status of the view, the client is the fiduciary; under another view the client estate and expressing legal opinions about that status is the estate or trust, including its beneficiaries.” In addition, may be a kind of “consultation” creating an attorney-client sometimes the attorney representing the “estate” drafted relationship through conduct. Hence, it is important for the the will for the deceased testator and is a witness regarding estate attorney to make clear to everyone who is and is not its execution. Few situations to which attorneys regularly the “client.” expose themselves provide more opportunities for conflicts of interest than administration of an estate. Question: Has your jurisdiction recognized creation of attorney-client relationships based upon the conduct MAJORITY VIEW – FIDUCIARY IS THE CLIENT and the reasonable belief of the “client”? The fiduciary has a duty to the beneficiaries to administer the estate fairly and even-handedly. The fiduciary necessarily MINORITY VIEW – BENEFICIARIES ARE OWED DUTIES communicates with beneficiaries and sometimes has to Morales v. Field, 99 Cal.App.3d 307, 316, 160 Cal.Rptr. 239, address conflicting claims among those interested in the 244 (Cal.App.1980) is an example of a case where an attorney estate. Usually, the attorney is involved, particularly regarding for a fiduciary was found to have duties to beneficiaries communications about the status and procedures of the that were derived from the fiduciaries duties to those administration. Does that mean that the attorney owes beneficiaries. The case involved a malpractice action brought fiduciary duties to the beneficiaries as well? by a beneficiary. Language in the case explains the derivative duty idea:
30 FALL/WINTER 2017 THE PARALEGAL EDUCATOR An attorney who acts as counsel for a trustee permit testimony by an attorney who drafted a will regarding provides advice and guidance as to how that circumstances surrounding its execution as evidence in trustee may and must act to fulfill his obligations support of its validity. For example, Stegman v. Miller, 515 to all beneficiaries. It follows that when an SW2d 244 (Ky. App. 1974) held that the attorney who drafted attorney undertakes a relationship as adviser to a the will could testify about confidential communications and trustee, he in reality also assumes a relationship facts relevant to execution and provisions of the will because with the beneficiary akin to that between the testator would have reasonably expected and intended trustee and beneficiary. that same be disclosed.
Morales, at 316, emphasis added. Other jurisdictions have However, there may be circumstances where evidence cited Morales to rationalize finding that the attorney for the is against such implied consent. Florida Bar Association fiduciary owes duties to the beneficiaries. Riggs National Ethics Opinion 72-40 opined that where a client provided a Bank v. Zimmer, 355 A.2d 709, 713-714 (Del. Ch. 1976) held confidential list of assets to a law firm, that firm could not that the trustee representing beneficiaries “is not the real disclose those assets to the Executor, absent a court order client in the sense that [h]e is personally being served. . . . In to do so. It further opined that the firm could not act as effect, the beneficiaries were the clients . . . as much as the attorney for the estate due to this conflict. trustees were, and perhaps more so.” (emphasis added). If the attorney who drafted the will is likely to be an important witness in litigation contesting the will’s validity, Question: Is your jurisdiction one that imposes should the attorney represent the estate? Rule 3.7 in ABA these derivative duties upon attorneys for personal Model Rules of Professional Conduct states that “[a] lawyer representatives? shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness” unless the testimony relates to an Some helpful resources for educating yourself and uncontested issue or not testifying would work substantial identifying cases in your own jurisdiction that address the hardship on the client. estate attorney’s duties to beneficiaries of an estate include the following: Daniel R. Nappier, Blurred Lines: Analyzing Question: Does your jurisdiction have ethics opinions or an Attorney’s Duties to a Fiduciary-Client’s Beneficiaries,71 case law addressing whether attorneys can testify about a Wash. & Lee L. Rev. 2609 (Fall, 2014); Joseph T. Bockrath, will they drafted or can represent estates where they are J.D., Attorney’s negligence in connection with will, estate, or potential witnesses regarding the validity of the will? succession matters, 55 A.L.R.3d 977 (1974); Joan Teshima, J.D, What constitutes negligence sufficient to render attorney CONCLUSION liable to person other than immediate client, 61 A.L.R.4th The potential for conflicting loyalties and confidentiality 464 (1988). dilemmas are rife in fact patterns involving estates. Research assignments and essay questions can be designed in light of THE DECEASED AS THE CLIENT the law in your jurisdiction to test student skills in research It is common for the attorney representing the estate to and analysis as well as mastery of material taught in ethics be the same attorney who drafted the deceased’s will and and estate administration classes. who participated in its execution. Potential conflicts arise when there are challenges to the will because the attorney Biography acquired confidential information from the client and also Mike Wilson, J.D., is Department Chair of Legal Studies at Sullivan is a fact witness to the execution of the will and the University, Lexington campus. He has taught law to paralegals since testator’s capacity. 1995 and has been a practicing attorney since 1979. He has written legal instructional material for the Institute for Paralegal Education, Confidentiality obligations do not cease upon death of the authored units on Real Property, Contracts, and Torts for Caldwell’s Kentucky Form Book, 5th edition, published by LexisNexis, and has client. Rule 1.6(a) in the ABA Model Rules of Professional authored articles on various legal topics for publications including Conduct states that a lawyer shall not reveal information Kentucky Bench & Bar. relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation. Courts have relied upon the idea of implied consent to
THE PARALEGAL EDUCATOR FALL/WINTER 2017 31 By Laura Alfano - Vista College
Encourage Cell Phone Use in Your Class
Your first reaction was probably, “What? No way!” The thing you’ll love most about Nearpod is that, while It is a continuous struggle to get students to put students are viewing your lesson, they can’t use their phones for anything else. That’s right! You’ve hijacked their those cell phones away. Stop struggling. What if you phone for the duration of the class—and because you have could use students’ phones to engage them with the an instructor screen that displays who is in the class, who content and the lesson you are presenting? Nearpod answers questions, and what the answers are, you know if someone logs off. gives you that ability. In addition to being a tool that engages students, Nearpod is Prepare your PowerPoint slides as usual for an instructor-led multi-platform and works on any device. There are tutorials presentation that you will use in class. Then go to Nearpod. on the Nearpod site to help you learn how to use it, but it com and register. There are free accounts for class sizes is uber-user-friendly. You can use your presentation for live of up to 30. Choose Create from the tab menu. Load your classroom lessons or for student-paced modules, which are presentation slides by clicking Add Content and dragging and like on-demand slideshow webinars. dropping your file into Nearpod. You’ll notice that much of the existing content is for K-12. Now the magic begins. Make your PowerPoint interactive by As we all begin to share legal content, though, that won’t be adding surveys, polls, quizzes, multimedia, images, and PDFs true. Not only will we hijack our students’ phones (bruah-ha- to your slide show. Or pull web pages that further explain ha-ha), we’ll begin to take over the Nearpod WORLD! your topic. You can even add open-ended questions, fill-in- the-blank questions or a white board. The process is as easy Bruah-ha-ha-ha. as clicking the type of activity you want to add and then filling in the blanks. Biography Laura Alfano has been in education since 1976, and started The first time you use Nearpod in class, have students practicing law in 1990. As an “old educator,” she missed the register and go to nearpod.com/student. Open Nearpod on classroom and went to Virginia College to teach paralegal your screen and give students the code that appears on the courses. Having run both on-ground and online programs, she is screen. Students will be able to access your lesson in real always on the lookout for a new tool or a new way to teach. She time, using their phones as “clickers” to answer questions is currently the Vice-President of Curriculum at Vista College. and interact with your lesson as you present. They can also go back to the lesson if they need to study the content later.
32 FALL/WINTER 2017 THE PARALEGAL EDUCATOR By Dovie Yoana King - San Diego Miramar College
On a Mission to Help Survivors of Domestic Violence
Prior to becoming an adjunct professor in the paralegal an abused woman in that I did not feel like a victim. Specifically, program, I had a long career as a public interest lawyer. In fact, I enjoyed a successful career as a paralegal educator and I entered law school full of idealism and the hope that one attorney. Yet in my private life, I was emotionally broken and day I would use my law degree to champion the cause of low- too ashamed to expose my dark secret. income people, immigrants and other disenfranchised groups. To fulfill this dream, I accepted my first job as a legal aid attorney, I have since learned that no one is immune to domestic helping primarily Spanish-speaking clients. Some of them were violence. It can happen to anyone regardless of age, education, facing homelessness, HIV/AIDS, substance abuse, mental illness socio-economic status, sexual orientation, gender, race, religion and domestic violence. I proudly advocated on their behalf, or national origin. Unfortunately, about 20 people are physically helping individuals and families through times of crisis. Little did abused by an intimate partner every minute in the United I know that one day I too would be facing personal hardship and States.1 This equates to more than 10 million domestic violence depending on others to guide me to safety. victims annually. I was determined not to become a statistic.
A Dark Secret Revealed Getting Help Early in my attorney career, I decided to get married and start a To be absolutely clear, I did not choose to be in an abusive family. I had every illusion of living a happy life. I was thriving in marriage nor do I accept blame for my abuser’s violent conduct my personal and professional life and had a bright future ahead towards me. In my case, the abuse unfolded gradually over time of me. However, my illusion of happiness quickly shattered. For and I was ill-equipped to recognize signs of coercive control. By 10 years, I endured domestic violence in the form of emotional, the time I realized the seriousness of my situation, I felt fearful, verbal, physical, sexual and financial abuse. Unfortunately, powerless, worthless and alone. But all was not lost. I reached like many other professional women, I did not think it could out for help at the Family Justice Center, an organization happen to me. After all, I am an Ivy-League educated, bright dedicated to providing free services to abused women and their and independent woman. Further, I did not fit the stereotype of children.2 By connecting with therapists, domestic violence
THE PARALEGAL EDUCATOR FALL/WINTER 2017 33 support groups, women’s retreats, family law attorneys and law local restraining order clinics and pro bono family law programs enforcement, I got the necessary support to end my abusive to acquire hands-on experience in conducting legal research, marriage, obtain a domestic violence restraining order and sole interviewing clients, drafting legal documents and observing legal and physical custody of my child. It took a village to turn family court proceedings. my situation around, and I am eternally grateful to everyone who aided in my healing and recovery.3 Final Reflections Though I am currently making a strong recovery from abuse and Advocating on Behalf of Other Survivors flourishing in my professional and personal life, it has been a In the midst of my personal battle in family court, I decided to difficult road. By sharing my story with others, I intend to bring start volunteering at a restraining order legal clinic. At first it was greater awareness to my colleagues about the problem of tough for me, as I was re-living my own traumatic experience domestic violence. I also hope to break stereotypes about who through the stories victims shared with me. However, I stuck is affected by abuse, as I am the last person anyone would think with it and this unique opportunity eventually gave me a new this could happen to. lease on life. I realized it was my true calling to provide pro bono legal services to women seeking safety since I could make Since going public about the abuse, I have met several other a difference in a person’s life between life and death. This is a professional women who have confided in me that they are responsibility I continue to take seriously and embrace openly. experiencing domestic violence. Many live behind a veil of secrecy and lack information about where to turn for assistance. Domestic violence legal advocacy has allowed me to heal If you or someone you know is facing intimate partner abuse, emotional wounds because it provides a mechanism for me 24-hour confidential help is available at the National Domestic to guide others facing the same uncertainty I once faced. Violence Hotline.4 It only takes one first step to break the Moreover, I am able to draw from my personal experience to silence and end domestic violence. provide other survivors with compassion, empathy and help to surpass a horrible situation. As a pro bono attorney, I feel I am Endnotes helping survivors and their children achieve a stronger voice for 1 See National Domestic Violence Hotline at www.ncadv.org/images/ change in the legal process rather than face it alone. This is very Domestic%20Violence.pdf (visited August 4, 2017). 2 rewarding and empowering. The Family Justice Center Alliance (FJCA) serves as a national clearinghouse for centers serving victims of domestic violence, sexual assault, elder abuse, child abuse, and/or human trafficking. On its website, the FJCA provides In June 2017, I was presented with the Outstanding Service information about center locations throughout the United States. To find Award for my volunteer work at the restraining order legal clinic. free help in your area, visit www.familyjusticecenter.org/affiliated-centers/ I also received the prestigious pro bono award by the State Bar family-justice-centers/ (visited on August 4, 2017). 3 Association for two consecutive years in 2016 and 2017. I had I want to acknowledge and thank the following organizations which made it possible for me to rebuild my life: Family Justice Center, National Domestic finally come full circle. Violence Hotline, Center for Hope and Change, ARTS (A Reason to Survive), Kathy’s Legacy Foundation, National Coalition Against Domestic Violence, Incorporating Domestic Violence into Break the Silence Against Domestic Violence, Domestic Violence Council and National City Police Department. Family Law Courses 4 The National Domestic Violence Hotline can be reached at 1−800−799−7233 Because domestic violence is prevalent in our culture and legal or TTY 1−800−787−3224. system, it is a relevant topic to include in family law courses. One way to expose paralegal students to domestic violence, Biography for example, is by discussing how family law recognizes abuse Dovie Yoana King is a public interest attorney and adjunct professor in divorce cases, child custody and visitation matters, financial at San Diego Miramar College. She is the founder and director of support determinations, restraining orders, etc. Instructors can SOAR for Justice, an organization dedicated to helping survivors of further discuss barriers that currently exist in the legal response abuse rise for justice. Dovie is a member of the San Diego Domestic to domestic violence, such as gaps in justice for low-income Violence Council, National Coalition Against Domestic Violence, women and immigrants, which necessitate systemic change San Diego County Bar Association and Lawyer’s Club of San through a social justice lens. Consider inviting a guest speaker Diego. Dovie is a graduate of Brown University and Northeastern from a local domestic violence agency to speak about the short- University School of Law. comings of the family court system or welcoming a survivor to share her personal experience escaping abuse. Finally, professors are in a unique position to connect students with
34 FALL/WINTER 2017 THE PARALEGAL EDUCATOR By Sejal Singh - St. John’s University
Teaching Oral Presentation Skills to Legal Studies Students
Many students who enter the legal profession are nervous captures the students’ attention and makes the topics more about public speaking. They have taken classes such relatable. In addition, there are a multitude of current event as Legal Writing where they are taught how to communicate topics related to ethical issues. through writing, but they have not learned how to communicate orally. Introduction to Legal Studies: Students are provided with a short fact pattern with relevant To prepare my students for communicating orally with excerpts from cases and statutes in criminal law. I choose supervising attorneys, judges or co-workers in the legal three students to act as judges. Students pair up and they are profession, I created exercises along with a set of guidelines either assigned to be the prosecutor or defense counsel. They to teach effective oral communication and presentation skills. work with their partner to develop the theme of the case and The following are some assignments I have used in my legal use the cases, statutes, and facts to support their arguments. studies classes. Each pair of students then present their arguments to the judges. This assignment teaches legal analysis and oral First Class: advocacy skills. Pair up two students and have them interview each other. Interview questions can include: What year of college are you Employment Law: in? What do you plan on doing after graduation? What is your Students are responsible for developing their own company major? I’ve had students ask questions about hobbies, family, for the purposes of drafting an employee handbook. The and favorite movies, which have served as ice-breakers. Each students then present their employee handbook to the class. student then tells the class about his or her partner. This is Students are given examples and a thorough explanation a fun assignment that eases students into speaking in the of what a well-written handbook looks like. Since this is classroom while allowing the professor and other classmates a semester long project, students are given a timeline of to get to know each other. deliverables. They are expected to present their employee handbook via a PowerPoint presentation to the class. Legal Ethics: Towards the end of the semester, students choose a recent Negotiation: case, article, or note related to a topic taught in class. Students are given a negotiation fact pattern such as They write a 2-3 page paper discussing the topic and share negotiating the sale of a car or an employment contract. After the paper with the class. Students do a small PowerPoint the students finish their negotiation, they draft the essential presentation to effectively highlight the main points of the terms of the agreement. They write the terms on the board paper. In the past, my students have presented on topics such and present their agreement to the class. Students are often as mental incompetency in the legal profession, conflict of times excited to see the various agreements and how it interest, and unauthorized practice of law. Using real cases compares to their agreement.
THE PARALEGAL EDUCATOR FALL/WINTER 2017 35 For my classes in which the students conduct an oral 5. Visual Aids presentation, I provide them with the following guidelines. a. Include good graphics and proper mechanics. Examples of good graphics include PowerPoint 1. Preparation presentations. a. Know your topic inside and out. Become an expert b. Also, consider using handouts. Handouts can include in the subject matter which you are speaking about. supplemental material, definition of terms or This will boost your confidence. highlights of the main points of the presentation. b. Create an outline or bullet-point your main ideas. c. Keep visual aids simple. They should not distract c. Anticipate questions you will be asked or questions the audience. you want to ask your audience. d. Use font large enough to be seen from the back d. Practice your presentation several times beforehand. of the classroom. This will give you a good idea of timing and your manner of presentation. I also like to provide a few tips for the other students sitting in the audience: 2. Organization a. Your presentation should be easy to follow. - Actively listen to the presentation. b. The paragraphs should flow logically and have well- - Make occasional eye contact with the speaker. formulated transitions. - During the Q/A session, ask questions or listen to c. Begin your presentation by giving a brief summary of what is being said. your topic so your audience knows what to expect. - Put away your phones, lap tops, and other electronic d. At the end, summarize your main points and provide devices. strong concluding remarks. Incorporating oral assignments into Legal Studies classes provides students with confidence when speaking and 3. Information/Content interacting with other professionals in the field. The exercises a. The content and subject knowledge should be also make the material come alive and the classes accurate and relate completely to your paper. more interactive. b. The information should also be instructive and mind If you need any specific fact patterns or examples for the provoking. assignments, I would be happy to share. I can be reached at 4. Delivery [email protected]. a. Delivery includes poise, eye contact, and proper pronunciation. Biography Sejal Singh is an assistant professor in the division of criminal justice, b. The delivery should keep the audience’s attention. legal studies & homeland security at St. John’s University. She previously c. Be very familiar with your presentation so you are worked as an assistant director of career development and an adjunct not reading directly from your slides. professor at St. John’s University school of law. Prior to St. John’s, Sejal was an assistant deputy public defender for the new jersey office of the d. Make frequent eye contact with the audience. This public defender where she gained substantial litigation experience. will help you engage with the audience. e. Speak in a clear and audible voice (watch out for References your “ums”). Lynn F. Jacobs and Jeremy S. Hyman, 15 Strategies for Giving Oral Presentations, USNEWS.Com, February 24, 2010, https://www.usnews. f. Go slow; make sure you are not rushing through com/education/blogs/professors-guide/2010/02/24/15-strategies-for- the material. This is most likely the first time your giving-oral-presentations. audience is hearing the information. Libraries and Research, Ohio Wesleyan University, Guidelines for Oral Presentations, http://go.owu.edu/~dapeople/ggpresnt.html. g. Pay attention to your body language: stand up straight and remember not to pace back and forth. h. Show enthusiasm for your topic.
36 FALL/WINTER 2017 THE PARALEGAL EDUCATOR The Omniscient Mentor
Welcome to “Ask the Omniscient Mentor” column. All members are encouraged to send questions to: Carolyn Bekhor, Editor-in-Chief [email protected]. Carolyn will then forward them to the O.M and promises to protect your identity.
Dear O.M.,
I have been teaching Civil Procedure and Toxic Torts for over This year to keep me fresh, I am using The Radium 20 years using A Civil Action and The Buffalo Creek Disaster. Girls by Kate Moore. My students love the movie Erin Brockovich, but I do not want to use it as a model. Do you have any suggestions for Before I decided to choose this book, I researched an update? syllabi for Toxic Tort classes. Many did not meet Mark in Madison. expectations and would not have passed ABA syllabi scrutiny for our programs. One said the final will “probably” be “composed of…” but some contained helpful applicable suggestions for a toxic tort unit of Dear Mark, class. YES! While I have used A Civil Action, both the movie and the If you are doing a class or extended unit on toxic book written by Jonathan Harr, in our Civil Procedure course, torts, look at Dr. Robin Kundis Craig’s website (Robin I have also heard Jan Schlictmann give his one-man show on the trial. I also use The Buffalo Creek Disaster by Gerald Stern Kundis Craig, Faculty Profile, The University of Utah in our Legal Analysis course (which is a prerequisite for Civil (July 24, 2017) http://faculty.utah.edu/u0793211- Procedure) as an introduction to toxic torts. It also serves ROBIN_KUNDIS_CRAIG/teaching/index.hml). It is as an overview of civil procedure and the human aspects of law. Several years ago, Erin Brockovich visited our city as an for a law school class but could be adapted for our inspirational speaker for a seminar. She spent time with our programs. I am incorporating lesson plans from it. state paralegal group after her presentation and posed for pictures. I did prevent my students from asking when she I did find my Civil Procedure Syllabi because I use got her C.P. and where she got her education. (This is where A Civil Action but did not find my Legal Analysis I would insert a smiley face with a wink.) syllabi where I use Buffalo Creek algorithms. O.M.
THE PARALEGAL EDUCATOR FALL/WINTER 2017 37 The story of The Radium Girls o Dentists worked in isolation • December 1898 o Dr. Blum in New York diagnosed patients with “poisoning by a radioactive substance” o Marie and Pierre Currie discovered radium o Company refused to help victims • 1917: Newark, New Jersey • 1925: o Young women worked at the watch-dial factory of the Radium Luminous Materials o Marguerite Carlough filed suit against Corporation the United States Radium Corporation for $75,000 (valued at 1 million today) . The women employees used radium to paint watch dials so they would glow in o Paint’s inventor wrote to Company the dark president “the disease in question is, without a doubt, an occupational disease” . The women employees were paid by the piece • 1926: Radium necrosis became a . The women employees were required compensable disease, but with a short to “lip, dip, paint” with thin brushes statute of limitation. . Painters in other countries did not lick • Raymond H. Berry brushes o Statute had not run . Mollie Maggi experienced significant . dental issues. Dental treatment did not Sued USRC $250,000 (1.7 million today) help. She lost most of her teeth and “They kind of had it coming”, pg. 175 her jawbone broke. She died and was o Dr. Flinn, Ph. D. Philosophy, not M.D. diagnosed with syphilis. It was later • January 1928 discovered that she died of radium poisoning. o The Trial . The employed women testified • 1922: Ottawa, Illinois . Dr. Humphries testified about the link o Radium Dial Company between illness, death and radium o President Joseph A. Kelly • May 23, 1928 o Girls as young as 13 worked there o Settlement talks started by Judge Clark • 1922: Newark, New Jersey o Agreement o More evidence of illness in workers . No admission of liability o There was positive literature from the . $10,000 ($136,606 today) radium companies stating there was not a . Pension $600.00 year for life ($8,316.00 link to radium today) • 1923: Ottawa, Illinois . Past and future medical expenses o Radium Dial had 200 female employees . All court costs o Girls used radium as makeup because it • June 1928: Ottawa, Illinois glowed o Employees continued to get sick and die • 1923: Orange, New Jersey o Production at plant declined o Radium workers were dying o Doctors employed by the company did o Report filed with the Department of Heath tests, but the negative results were not o Nothing happened to protect the workers revealed to the girls • 1924: Newark, New Jersey o Employees had more dental issues
38 FALL/WINTER 2017 THE PARALEGAL EDUCATOR o Radium Dial Company published a full page o Employees continued to suffer in a newspaper and that there was not a o Charolette Purcell’s arm was amputated, health risk Charlotte had 3 children under 5 o Company argued that mesothopium not o Catherine Donohus was confirmed with radium was the cause radium poisoning • Summer 1928: Orange, New Jersey o Radium Dial knew that the workers were o Company argued that the employees radioactive for 6 years and did not conceal this would get well and not need future medical o Lawyer, Jay Cook, formerly with Illinois treatment Industrial Commission took the employees o Dr. Faille, “all five patients are radioactive” case o Nothing happened to penalize the Company o Company refused compensation to employees • 1929: Ottawa, Illinois o 1935 Jay Cook filed a suit in a civil court and o Radium Dial Studio was busy the Illinois Industrial Commission o Employees were sick and dying o Radium Dial argued statute of limitations o Peggy Lorney died, cause of death was and “no intelligible standard of conduct.” declared diphtheria o The statute was held invalid • 1929: Orange, New Jersey o Jay Cook resigned o USRC did not pay medical bills o December 17, 1935 – Ireme La Porte lost her o Black Tuesday, October 29, 1929 case because it was based on the law in 1917 . Girls continued to die o February 25, 1936, Inez Vallet died. Doctor held that her death was not related to her • 1930-1931: occupation o February 22, 1930, Mary Toniellie died at o New bills in Illinois to protect employees age 21 from industrial poisoning were passed o June 16, 1931, Irene LaPorte died o Radium Dial “left town” but Luminous o Ottawa, Illinois Process took over . August 1931 o Victims had no lawyers for their hearing . Catherine Wolfe fired for her limp before the Illinois Industrial Commission caused by radium poisoning o Victims hired Leonard Grossman from Chicago • February 1933: Orange, New Jersey o Victims continued to lose bones and glowed o Employees medical bills were denied o The Trial – 1938 o FTC issued a cease-and-desist order . Catherine was the first witness o USDA later declared radium medicines illegal . Evidence that Radium Dial could not o Katherine Schaub died on February 18, 1933 secure insurance for its workers at the age of 30 . Exhibit – pieces of Catherine’s jaw • October 27, 1933: bones and teeth at the trial o Grace Fryer died . Catherine testified at home because of o As of date of her death, no company had her health been found liable . Catherine demonstrated “Lip..Dip.. • And then what happened? Paint” o Executives of Radium Dial Company had . Other victims testified of their poor confirmed knowledge of radium poisonings health since 1925
THE PARALEGAL EDUCATOR FALL/WINTER 2017 39 . Developments: Activities for Radium Girls across the curriculum: • Victims founded the “Society of . Identify the key facts in the cases, use this article the Living Dead”. Its purpose . Identify the 4 elements of negligence was “obtain better protection . by legislation and otherwise Identify affirmative defenses for persons endangered by . Identify ethical issues occupational disease.” . Draft a complaint and answer based on the case . Verdict: . Find any filings from one of the Radium cases • The Industrial Commission . Research 5 points about what has happened found that the Company was since 1971 guilty • Damages were awarded to Catherine, past medical Enrichment Lesson Plans: expenses, back salary for all the time she could not work, If you are interested in a cross-discipline activity or annual life pension, $5,611.00 you have theater people in your program, I suggest ($95,160.00, today) using the play to introduce your unit, D.W. Gregory, • Catherine was informed before she died Radium Girls (Dramatic Publishing, Woodstock, . Appeal: Illinois, 2000). It is very adaptable to a Reader’s • Radium Dial filed an Appeal Theater format, it is a concise version of the story • Radium Dial denied all claims or Google or YouTube Radium City, Radium Girls, • July 6, 1938 – The Illinois the Radium Dial Printer or Radium Girls: A Glow in Industrial Commission upheld History: The Dial Painter from the 1900s. Catherine’s award • July 26, Illinois Industrial Commission filed another Bibliography appeal in Circuit Court Kate Moore, The Radium Girls (Sourcebook Inc., Naperville, • Catherine died July 27, 1938 Illinois, 2017). • Death Certificate found that Jonathan Harr, A Civil Action (Vintage Books, New York, Catherine’s death was related 1996). to her occupation Gerald M. Stern, The Buffalo Creek Disaster (Vintage Books, . Cert denied October 23, 1939; New York, 1976). Catherine & Gerald Grosman won Jean Eggen, Toxic Torts in a Nutshell (West Publishing Co., Minnesota, 1995). Notes on the book The Radium Girls: Linda Price King, Chemical Injury and the Courts: A Litigation . Read the book for the horrors of their suffering Guide for Clients and Their Attorneys (McFarland & Company, . Pages 415-460 in the hard copy is the equivalent of Inc. Publishers, North Carolina, 1999). law review footnotes Carl F. Cranor, Toxic Torts: Science, Law, and the Possibility of . The bibliography on pages 446-464 is Justice (Cambridge University Press, New York, 2006). comprehensive Caroline Hunter, Integrating Socio-Legal Studies into the Law Curriculum (Palgrave Macmillan, 2012).
40 FALL/WINTER 2017 THE PARALEGAL EDUCATOR by Mary M. Flaherty - LEX National Coordinator
Students in good standing at schools with LEX charters are also eligible to participate in the annual LEX scholarship competition. In 2017, twelve applicants submitted essays on whether paralegals should be licensed or regulated at the state level. Four won scholarships in the amount of $500. In addition, AAfPE waived the conference registration fees for scholarship winners attending the LEX session on Friday afternoon at the National Conference in Albuquerque, New Mexico. Congratulations to this year’s winners!
Linda Chan College of Du Page Update on (Sally N. Fairbank, Coordinator) Candace Gould Lambda Epsilon Minnesota State University Moorhead (Tracy Gompf, Paralegal Program Coordinator)
Kristal M. Solis Chi (LEX) College of DuPage (Sally N. Fairbank, Coordinator)
As always, it’s been a busy year for LEX! Allison Wilder Davenport University During the 2017 calendar year, AAfPE inducted 816 (Misty Davis, Director for Legal Studies) new honorees, and we anticipate even greater numbers for the 2018 calendar year. AAfPE also welcomed seven Of course, AAfPE cannot offer these benefits to its LEX new LEX chapters: Chapters without charge. Student induction fees have been $30 for more than 10 years and have not kept pace with • Bunker Hill Community College other honor society induction fees which are in the $50 and above range. In addition, current sash prices do not • California State University, Los Angeles even cover the costs incurred to provide them. For these • Chattanooga State Community College reasons, the AAfPE Board of Directors voted to increase • Daemen College student induction fees to $50 and sash prices to $35 effective August 1, 2017. This is not an action undertaken • Portland Community College lightly by the AAfPE Board, but it is a necessary one for the • Rowan College - Burlington County continued viability of the LEX Honor Society. • South University - Columbia For more information on any aspect of LEX, please feel free to contact Mary Flaherty, LEX National Coordinator If your school does not currently have a LEX chapter, ( please consider it. It is a wonderful thing for the students, [email protected]) or email AAfPE providing an opportunity to recognize those who meet Headquarters at [email protected]. high academic criteria through a formal ceremony and the awarding of a Certificate of Induction and a special pin.
THE PARALEGAL EDUCATOR FALL/WINTER 2017 41 L E X Winning Essays
LEX essays are reprinted as submitted to the editorial staff of The Paralegal Educator. Changes or corrections have not been made.
The Paralegal Educator proudly publishes the 2017 winning Lambda Epsilon Chi (LEX) Scholarship Essays. AAfPE awarded four $500 scholarships specifically for the pursuit of the student’s paralegal education. The essays were based on the following question:
LEX 2017 Scholarship Essay Question
Recently, the American Bar Association Commission on the Future of Legal Services in America released a report dedicated in part to “all who seek innovative answers to enhancing access to, and the delivery of, legal services.” This report recognizes that, despite sustained efforts to expand the public’s access to legal services, significant unmet needs persist; among other recommendations, the report urges consideration of regulatory innovations in the area of legal services delivery. With the advent of this report, the arrival of Limited License Legal Technicians (LLLTs), and the general increase in access to justice initiatives across the country, the question of whether paralegals should be licensed or regulated in a formal way by each state is a timely question. Please write an essay about whether paralegals should be formally licensed or regulated on the state level; remember that you should assess the pros and cons of regulation for all relevant constit- uencies (the public, the legal profession, and paralegals). Also remember that your essay should take the form of an advocacy position grounded in authority including statutes and relevant legal analyses, and not be based only on personal opinion grounded in emotion. Citation to relevant authority -- both primary and secondary – is critical.
42 FALL/WINTER 2017 THE PARALEGAL EDUCATOR By Linda Chan On January 1, 2001, the California Business & Professional Code College of DuPage Sections 6450- 6456 became effective which implemented well-defined rules on education, supervision, experience, performance, and confidentiality obligations of paralegals. Under section 6454, the terms “paralegal,” “independent In 2016, the American Bar Association released a “Report on the paralegal,” “freelance paralegal,” “contract paralegal,” “lawyer Future of Legal Services in the United States” that recommended assistant,” and “legal assistant” are the same. Also, under the regulatory improvements or advances in the field. For two years, California statute, only qualified individuals working under the the Commission of the American Bar Association considered direction of a lawyer may use these titles. different explanations as to why many Americans still did not have access to legal services. The American Bar Association According to the authors of Paralegal Today, The Legal Team President, William C. Hubbard said, “It is our duty to serve the at Work, the courts have approved voluntary paralegal public, and it is our duty to deliver justice, not just to some but certification programs in North Carolina and Texas. to all” (“Report on the Future of Legal Services in the United States” 1). If paralegals were licensed or regulated, would this The Texas Plan for Recognition and Regulation of Legal expand the public’s access to legal services? Assistants, which was amended in June of 1999, governs the ce1iification process for paralegals, and is administered by A pro for licensing paralegals would be to prevent unqualified the Texas Board of Legal Specialization. In North Carolina, the individuals from calling themselves, “paralegals.” Other positive State Supreme Court results for licensing paralegals might include recognition, opportunities, advancement, professional development and implemented the Plan for Certification of Paralegals. The North increased salary. Licensing paralegals might gain the public’s Carolina State Bar approves and administers the voluntary trust, and place the public at ease. It might also reduce the costs certification program. The North Carolina Plan and the Texas of legal services. Plan does not restrict the use of the terms “paralegal” or “legal assistant.” There are no differences between a certified Some of the cons for licensing paralegals would be that they and noncertified paralegal, and both may perform substantive already work under attorneys, and the hassle to existing legal work under their supervising attorney. paralegals to go through education, testing, or licensing procedures. Licensing and re-licensing would cost money to In conclusion, not everyone agrees with a mandatory need to employers, employees, and clients. Attorneys may need to regulate paralegals. Some courts and paralegal organizations pay more for licensed paralegals or use a different title for the feel that legal service clients are sufficiently protected by the paralegal position or hire others to carry out the paralegal’ s task paralegal’s licensed supervising attorney. Plus, regulations may to keep costs down. impede the growth of the paralegal profession.
The National Association of Legal Assistants (NALA), a Work Cited paralegal organization, supports education, testing, and “Report on the Future of Legal Services in the United States.” (2016): 1. professional development of paralegals. NALA does American Bar Association, 2016. Web. not believe state regulation is needed, but does offer a
THE PARALEGAL EDUCATOR FALL/WINTER 2017 43 By Candace Gould large percentage of people who require legal services are Minnesota State University Moorhead unable to obtain any (Rigertas 540). For instance, in 2012 the Washington Supreme Court adopted Admission to Practice Rule 28, which allows independent paralegals, termed “Limited License Legal Technicians,” to provide limited legal As the field of paralegalism continues to grow and diversify services to the public. This action was prompted by a 2003 the question of whether paralegals should be regulated study which found that the legal needs of the public were by individual states is that a limited amount of regulation not being met (1). would be beneficial and even crucial, but that broad-based regulation schemes would be detrimental. In order to explain In most states, however, non-traditional, or independent this viewpoint it is necessary to define the various methods paralegals are not supervised or regulated either by state by which states can regulate paralegals, and to demonstrate law or by attorneys (Vuong). Therefore, it seems that in how these regulatory methods would impact the public, order to ensure protection of the public all states should paralegals, and the legal profession as a whole. follow Washington’s precedent. However, regulation of independent paralegals is not First, a distinction should be made between the various without drawbacks. Mandatory licensure or certification regulatory methods available to states. The International programs would be costly and would most likely force Practice Management Association (IPMA) lists the following independent paralegals to increase their fees. three methods: licensing, certification, and registration (2-3). Since registration would offer less regulatory benefits than The second group likely to be affected by state regulation of the other two types listed, in this analysis I chose to focus paralegals is comprised of legal professionals, or attorneys. only on certification and licensing. Unlike the public, attorneys might actually benefit from broad-based licensing schemes. This is because only Certification is defined by the IPMA as “a mandatory or qualified individuals, who had completed the necessary voluntary scheme monitored by governmental agencies, educational and training processes, would be allowed to non-governmental entities, or professional associations that identify as paralegals. Attorneys would thus be assured of certifies that individuals have met the qualifications required the expertise of their paralegal employees (Jones 12). by the sponsoring entity.” Licensing is the most restrictive form of regulation. It “requires any person wishing to earn a However, state regulation might also negatively affect living in a licensed occupation to obtain permission (license) lawyers. Licensure would legitimize independent paralegals, from a specific government agency.” The individual must thus encouraging the growth of that group and potentially meet certain requirements in order to qualify for a license, diverting customers away from attorneys. such as graduating from an approved training program, Finally, regulation would have a varied effect on paralegals. passing an examination, and paying license fees (2-3). As mentioned above, broad-based licensure or certification Additionally, a distinction should be made between broad- of all paralegals would most likely be unnecessary, as the based licensing schemes, which apply to all paralegals within majority of paralegals are already supervised by attorneys. a state, and limited licensing schemes, which apply only to Broad-based regulation would also harm traditional “one sector of the field” (Statsky 179). paralegals by making the profession more difficult and costly. Of the three groups listed above, the public would most On the other hand, limited regulatory schemes aimed at likely benefit the most from increased regulation. While the independent paralegals would undoubtedly benefit the majority of paralegals are supervised by attorneys and are profession. Such programs would legitimize independent subsequently regulated by the rules that apply to attorneys, paralegals and encourage the profession to continue to grow there exists a growing number of non-traditional, or and develop. independent paralegals who provide legal services directly Ultimately, the question of whether states should regulate to the public (Int’l. Paralegal Mgmt. Assoc. 2) becomes more paralegals prompts a complicated and nuanced answer. pertinent. The most likely answer to the question Limited regulation programs would apparently offer Independent paralegals are able to provide certain legal the most benefit to the public, while also improving the services to individuals who might otherwise not have credibility of nontraditional paralegals. Broad-based access to legal aid. Importantly, there is evidence that a programs, on the other hand, would most likely prove
44 FALL/WINTER 2017 THE PARALEGAL EDUCATOR detrimental to both traditional paralegals and the public. regulated or licensed paralegals in a formal way by each Therefore, before implementing any regulatory programs state could benefit or harm the public, the legal profession, states should carefully and thoroughly consider the and paralegals. consequences of such programs. Without a doubt, there is an alerting demand to suit the public Works Cited with affordable and accessible legal assistance but there is no International Paralegal Management Association. direct plan of action to accomplish this goal. The possibility of “International Paralegal Management Association Position regulating or licensing paralegals is a controversial topic due Paper On U.S. Paralegal Regulation,” IPMA, June 2011, www. to the uncertainty of how the public will be effected. First and theipma.org/files/usregulation-position-paper.pdf. Accessed foremost, statutory licensing for paralegals would indicate that 31 Dec. 2016. they would have to meet specific educational requirements and pass an exam provided by the state and regulations are Jones, David. “Why Indiana Lawyers Should be in Favor of requirements followed by those who practice a certain trade. Paralegal Registration.” Res Gestae, Sept. 2013, pp. 12-17, In an e-mail interview with Michelle Cummings, the first LLLT c.ymcdn.com/sites/inbar.site-ym.com/resource/resmgr/Files/ th in Washington, on December 12 2016 we discussed the pros/ Paralegal_Registration.pdf. Accessed 31 Dec. 2016. cons of being an LLLT. Michelle informed me that some of the Rigertas, Laurel. “Collaborations Between Lawyers and New disadvantages are: Legal Professionals: A Path to Increase Access to Justice and Protect Clients.” Kansas Journal of Law and Public Policy, The inability to appear in court with your clients to Summer 2015, pp. 540-553. Retrieved from Westlaw database. assist them in answering procedural questions that can Accessed 31 Dec. 2016. come up during the court hearing. I have had Judges/ Statsky, William. Introduction to Paralegalism: Perspectives, Commissioners ask clients service questions or about Problems, and Skills. 7th ed., Cengage, 2009. the rules and they are stumped on what to say or say the wrong thing and this could result in a dismissal of their Vuong, Patrick. “Paralegal Regulation in the United States.” hearing or action when in actuality they did follow the Paralegal Today, Mar./Apr. 2006, www.paralegaltoday.com/ correct process, they just did not understand what to say. issue_archive/features/feature1_ma06.htm. Accessed 31 [Also], not being able to speak to 3rd party’s attorney if Dec. 2016. represented on simple things such as procedural matters Washington Supreme Court Admission to Practice Rule 28(A). or facilitating the service of my client’s documents. Retrieved from Westlaw database. Accessed 1 Jan. 2017. However, when I asked Michelle if expanding LLLTs in other states in other states could help bring equal access to justice By Kristal M. Solis she responded: “Absolutely, any [cost] reduced legal assistance College of DuPage that can be made to the general public is a help. So many of my clients are low to middle class who can barely even afford one hour of an attorney’s time.” Even though Michelle is now an LLLT, she began her career as a paralegal and was Limited License Legal Technicians (LLLTS): Is State Regulation able to become an LLLT as a result of Washington’s efforts to Necessary? improve their services to the public with some form of legal help from nonlawyers. Because of Michelle’s license she is able As reported by Seidenberg (2011), “When comparing nations to assist clients with simple matters for half the cost that an on accessibility of civil justice, the survey [World Justice attorney would charge, but unfortunately her license permits Project’s Rule of Law Index 2011] ranked the U.S. 11th out of her to help the client to a certain degree. While California, 12 countries in North America and Western Europe. Among Oregon, Colorado, and New Mexico are interested in following high-income nations worldwide, the U.S. ranked 20th of 23.” Washington’s example, it’s critical to take into account that in Although the U.S has an excellent legal system, access to the end some clients’ needs are still not being met even with legal services and affordability are the predominant issues. In the help of LLLTs because of they are still nonlawyers. an effort to expand the public’s access to legal services, the possible state-wide regulation of paralegals presents itself as The increased necessity for legal assistance is a serious issue a possible solution to enhance access and delivery of legal taken into account by the American Bar Association and various services. With the arrival and usefulness of Limited License other organizations but it’s necessary to consider how the Legal Technicians (LLLTs), it’s crucial that we examine how licensing and/or regulation of paralegals will affect the legal
THE PARALEGAL EDUCATOR FALL/WINTER 2017 45 profession and paralegals overall. In an interview conducted by By Allison Wilder Bales (2014), veteran paralegal, Bob Davidson, remarks: Davenport University … in my opinion, the licensure process could result in new costs – to the paralegal, perhaps for law firms, and, quite possibly, the government or designated paralegal licensing Often, one of the first topics paralegals learn about is how authority in terms of added bureaucracy. Who is going to pay for certification, continuing education, re-licensing to log billable hours. It is an essential part of the legal field – all the things that make up a licensure program? The because at the end of the day, people must be paid for their paralegal, the law firm, the state? services. Law office staff work tirelessly to obtain pertinent information they need for their cases. In the United States, Bob’s assessment of the situation gages the potential costs there are many people that are in need of legal assistance but involved in licensing paralegals that would only create are not financially capable of affording legal fees that come another issue in the legal profession. Having some type with adequate representation. In fact, the ABA Commission on of license or regulations set in place could surely ease the the Future of Legal Services estimates that only about twenty public and generally bring more awareness to the paralegal percent of people who are in need of services have meaningful profession. Nonetheless, it’s important to recognize that access.1 Although there are legal assistance centers to provide although paralegals might obtain more recognition and career people with legal tools, they may not meet the needs of those advancement from licensing/regulation, the state and law firm requiring representation. Legal representation has become employers will be the ones who will struggle to figure out how a luxury in our society and the justice gap is a major threat to finance these licenses and implement regulations. It would to justice across the nation. To mitigate this gap, paralegals take plenty of time and money to figure out how to approach should be licensed by each state in order to increase the the licensing/regulation of paralegals when the bigger issue at number of legal staff that can deliver much needed services. the moment is trying to make legal service fees affordable and accessible to low and middle class citizens. In 2012, the state of Washington piloted a Limited License Legal Technician Program (LLLT) to address the legal needs The justice gap in the U.S is an issue that urgently needs to be of vulnerable or low income populations. At this point in addressed but how paralegals could aid in this matter needs to time, LLLTs are authorized to assist clients in the family law be carefully evaluated. Certifying and or regulating paralegals practice area. Their practice is limited in scope, however on a state level seems like a wise approach towards solving they can provide valuable advice and preparation for clients the problem except paralegals do not have the same ability to with questions regarding their cases or court proceedings.2 help their clients the way a lawyer can service them. Certifying Deborah Hughes of the Michigan Legal Assistance Center has or regulating paralegals would also bring into question the provided information to my paralegal learning community costs associated with this type of change and who would be which indicates that eighty percent of questions at this paying. At the present moment, providing paralegals with the particular legal assistance center are regarding families.3 The opportunity to become certified or regulated formally by the introduction of LLLTS could serve well at providing more access state would create another setback instead of focusing on within this community, as well as others across the nation. closing the justice gap. The introduction of LLLT’s within the community would require References regulation by each state in order to provide consistency, Bales, A. A. (2014, April 21). The Pros and Cons of Licensing for Paralegals: efficiency, and a code of conduct within the field. Licensure Is Statutory Licensing and Regulation Really Necessary? Retrieved would require a person to have obtained qualifications to be December 21, 2016, from https://www.lextalk.com/b/lextalk_blog/ able to practice. One of the difficulties in start-up would be archive/2014/04/21/the-pros-and-cons-of-licensing-for-paralegals-is- determining what entity would be in charge of oversight and statutory-licensing-and-regulation-really-necessary.aspx regulation. This may require a large funding cost, and to some Cummings, M. (2016, December 21). Email Interview may be seen as a negative within the legal profession, but it Durgin, C. D. (2007, February 3). Advertisement. Retrieved December 21, would enhance the work scope of paralegals and provide the 2016, from https://apps.americanbar.org/buslaw/blt/2007-01-02/durgin. public with more opportunities to achieve justice.4 Currently shtml for lawyers, each state has the American Bar admission to Seidenberg, S. (2012, June 01). Unequal Justice: U.S. Trails High-Income practice, as well as the American Bar Association Model Rules Nations in Serving Civil Legal Needs. Retrieved December 19, 2016, from of Professional Conduct which have been adopted by states to http://www.abajournal.com/magazine/article/unequal_justice_u.s._trails_ 5 high-income_nations_in_serving_civil_legal_need fit specific needs. For those that would argue that regulation at the state level would be too difficult for LLLTs, the Bar
46 FALL/WINTER 2017 THE PARALEGAL EDUCATOR Admission and Model Rules serve as an excellent template additional number of individuals able to provide services with of how it can be done. Washington has already put LLLTs into documentation, preparation and advice, can greatly increase practice and the Admission to Practice Rule 28 (APR) by the the opportunities to help the American population at large. state Supreme Court. In states that would adopt the practice of LLLTs the APR could be modified and a LLLT Board would Endnotes 4 need to be put in place to propose rules and regulations. 1 American Bar Association: Commission on the Future of Legal Services. One dimension of the legal field which would need to be Report on the Future of Legal Services in the United States. 2016.
THE PARALEGAL EDUCATOR FALL/WINTER 2017 47 Candidate Statements 2017-2018 AAfPE Officer Elections PRESIDENT-ELECT AAfPE Institutional Members will vote to fill the following positions Bruce Davis during the annual business meeting of the membership at the 36th University of Cincinnati - Clermont College National Conference, located at the Sheraton Albuquerque Uptown, 2600 Louisiana Blvd NE, Albuquerque, NM 87110, on Friday, October 20, 2017 at 12:10 p.m. I am honored to have been nominated for President-Elect of AAfPE. AAfPE has given much to me and I feel an obligation to All Institutional Members are eligible to vote. If you are an give back to this organization. I have been teaching paralegal Institutional Member, and will not be attending the 2017 Conference students at the Mount St. Joseph University and the University in Albuquerque, you may designate a proxy to cast your ballot. If you of Cincinnati Clermont College for the past twenty years, both plan to vote by proxy, you must, in accordance with association bylaws, as an adjunct and as a tenured professor. I received the college- notify the Association Headquarters in writing of your Proxy selection wide excellence in teaching award for my paralegal teaching at using the AAfPE Proxy Form no later than October 4, 2017. Clermont College five times, a record for the school. I attended every national AAfPE conference since becoming a full-time Having been duly qualified, the Nominations Committee is pleased to professor and have presented at the vast majority of them, as present the following slate of candidates for consideration: well. For the past six years, I served as your treasurer, guiding the organization through several challenges, including the recent change of management companies and a full independent audit President-Elect Bruce Davis of the finances, which came back squeaky clean. University of Cincinnati - Clermont College As your treasurer, I sit on the board of directors of AAfPE, having never missed a board meeting or conference call. During Treasurer Susan Atlas this time, I observed the role of President through the three- Bunker Hill Community College year commitment of President-Elect, through President, to Immediate Past President. This gave me excellent insight into Secretary Lisa Hutton the roles and responsibilities of this office and I will be honored John F. Kennedy University, to serve. College of Law This is an interesting transition time for the organization, with Sharron Dillon many programs changing their name from paralegal studies to University of Hartford legal studies. The legal marketplace is also undergoing dynamic changes, as well, with new lawyers finding it difficult to find Director, Chris Simcox employment. Many positions that once went to new attorneys Certificate Programs Bucks County Community College are being filled with paralegals, making this profession even more important in the provision of legal services. I pledge to Carolyn Bekhor help AAfPE rise to the new and dynamic challenges that are University of La Verne facing paralegal and legal studies programs.
ABA Commission - Keeley Mitchell I am honored to have been nominated and I will be equally Associate Programs Delaware County honored to receive your vote. Community College
Director, Gayle Miller North Central Region College of Lake County
Director, Judith Mathers Maloney Northeast Region Molloy College
Director, William McSorley Southeast Region Midlands Technical College
48 FALL/WINTER 2017 THE PARALEGAL EDUCATOR TREASURER SECRETARY Susan Atlas Lisa Hutton Bunker Hill Community College John F. Kennedy University, College of Law
For those of you who may not know me, I would like to I am honored to submit this statement of candidacy for share a little bit about me. By way of background, I am the the AAfPE Board position of Secretary. I am the Program Chair of the Paralegal and Legal Studies Department at Chair for the ABA-approved Bachelor’s in Legal Studies and Bunker Hill Community College in Boston, Massachusetts Paralegal Certificate Programs at John F. Kennedy University and I would be honored to serve as your Treasurer in Pleasant Hill, California. for AAfPE. Prior to entering academia, I worked in the Solano County When I started at Bunker Hill Community College, we had a District Attorney’s Office, and spent many years as an very small certificate program with low enrollment and job insurance defense litigator in Oakland, California. In 2003, I placement. I came to BHCC to develop an Associate Degree began teaching legal research and writing at JFKU’s College program, to revamp the certificate program and to ensure of Law, and in 2005 was asked to develop the University’s that both our Certificate and AS degree graduates gained Bachelor’s and Paralegal Certificate programs. Having the knowledge and skills they need to successfully enter the discovered my new-found passion for teaching, I jumped in workforce or continue their education. Importantly, I was with both feet and have not looked back since. also asked to forge through and obtain ABA approval for our school. I am proud to say that we are an ABA approved Three months after I began my new position at the school, recently became a chapter of LEX and our place in University, I attended my first AAfPE conference in Tampa, the Greater Boston legal community is strong. Florida. I felt like I had come home to my people! As a brand new program director, I spent those four days taking Like many of you, I was in private practice for over twenty in every piece of advice, and every nugget of information I years before becoming a full time faculty member. I could fit inside my head. I even had to buy a new suitcase graduated Boston University with a BA in psychology and to bring back all the books and materials I collected! sociology; obtained my JD magna cum laude from Suffolk University Law School and went on to obtain my Master’s It has been 12 years since the Tampa conference. Since Degree in the Law of Taxation at Boston University School that time I have eagerly attended almost every national of Law Graduate Tax Program. I am very proud of my and regional AAfPE conference over the years, many as accomplishments in private practice and am honored a presenter. I served on the 2015 national conference to be a nationally rated estate planner by Martindale planning committee, and recently co-hosted the 2017 Hubbell as an AV Preeminent Attorney; however, (other Pacific Regional Conference in Oakland, California. than my own children) I am most proud of my graduates’ At John F. Kennedy University, I teach Introduction to Law accomplishments. Their strength, their growth and their and the BA and Paralegal Capstone courses. I also serve as successes are inspiring not only to me but to my current the University’s Faculty Senate President, a position which students who follow in their footsteps. has significantly strengthened and grown my leadership My LL.M in taxation would serve me well in assisting AAfPE skills. I am eager to bring those skills to the AAfPE Board. as Treasurer. I understand the accounting and tax principles My passion for quality paralegal education, and my needed to effectively monitor and keep the financial dedication to the AAfPE organization and its membership information of our association. I am able to review and is why I humbly request your vote to serve on the Board as approve the payment of expenses, review AAfPE’s financials Secretary. AAfPE has given so much to me professionally reports and prepare there ports for the Board of Directors and personally. It is my time to give back! as well as anannual report to our members. AtAAfPE,Ihavefound countless colleagues and friends that share my passion for teaching and serving my community so I can think of no better way to thank all of you for your membership, commitment and camaraderie than to serve on this Board.
THE PARALEGAL EDUCATOR FALL/WINTER 2017 49 SECRETARY DIRECTOR, CERTIFICATE PROGRAMS Sharron Dillon Chris Simcox University of Hartford Bucks County Community College
Thank you for considering me for Secretary of AAfPE. My name is Chris Little Simcox and I am a Professor as well as the Paralegal Internship Coordinator in the Paralegal I am very glad to be a member of AAfPE. Being able to meet Studies Program at Bucks County Community College. I with and learn from paralegal educators around the country submit this statement in support of my candidacy for the is a tremendous benefit to me professionally and personally. AAfPE Board position of Director, Certificate Programs. Now, I want to do more, particularly with regard to growing Bucks County Community College is a community college and sustaining AAfPE’s membership. which offers an ABA approved paralegal studies associate degree and certificate program. I started teaching as an I am qualified to work with the Board and with the adjunct professor for the paralegal program at Bucks in membership to maintain the purposes of AAfPE and to 2003 while practicing law part-time and working full-time provide support to the President and to the organization. as a Domestic Relations Officer for the Bucks County Court I am fortunate to have two careers - practicing law and System and later officer supervisor. I was one of only a few teaching paralegal studies. adjuncts in the program. I also was an adjunct for Penn State Justice and Safety Institute where I taught law to the I have been active in paralegal education for over 18 employees, masters and Judges in the family law court years as an instructor, course developer, student advisor, system across Pennsylvania. I worked for the county from internship coordinator and supervisor, faculty advisor to 1994 to 2008 when I left to change my combination of student organizations, business and paralegal text book employment to include more teaching and add private law reviewer for multiple publishers, and creator/self-publisher practice. In 2012, I left Penn State when I was hired as a full of paralegal textbooks. I am a recipient of the Sustained time professor for Bucks County Community College. Today, Excellence in Teaching Award for Part-time Faculty at the I teach many of the classes in the paralegal programs as University of Hartford, an honor of which I am very proud. well as a few classes in the Management department. I also serve as the Paralegal Internship Coordinator and continue I have been in private practice for over 24 years, focusing to work my private law practice part-time. on Social Security disability claims and appeals and small business advisor. I am a member of the Connecticut My connections working for the county and also in private State Bar, the Federal Bar for the District of Connecticut, practice have allowed me to be in a great place to assist our the Connecticut Bar Association, the Hartford County students by placing them in great internship opportunities Bar Association, the American Association for Paralegal and onto great employment. I am passionate about helping Education, the National Organization for Social Security our certificate as well as our associate students to obtain Claimant’s Representatives, and Phi Alpha Delta Law internships, learn what is really needed in the legal field Fraternity International. I have presented seminars and today and help them obtain employment. After attending workshops to several of these groups, and to various my first AAfPE national conference in 2016, I realized civic groups. I developed and presented a series of that AAfPE was passionate about the same things. I was workshops and law clinics with the University of Hartford extremely impressed with the organization. I have been Entrepreneurial Center’s Small Business Technical Assistance part of many organizations over the course of my career Program. I was fortunate to have paralegal student including the ABA, NJsBA, Bucks County Bar Association volunteers actively participate in these clinics with me. and yet this organization was so much more welcoming and embracing. I decided immediately that I wanted to be more I will share my hard work,enthusiasm, and dedication with involved. our organization. I appreciate your consideration and look forward to serving our membership! I have helped my program successfully through the ABA approval process and now currently through the reapproval process. I have experience in committee and board service for the ABA, Bucks County Bar Association and New Jersey Bar Association. I have served as a board
50 FALL/WINTER 2017 THE PARALEGAL EDUCATOR member as well as Family Law Chair for the Bucks County areas of business law and estate planning. I had worked Bar Association for several years. I have served as Union with paralegals and of course, knew how important the Steering representative and served on several committees paralegal was to the smooth functioning of a law office. throughout the college. I am enthusiastic and put forth As such, I was excited to participate in education and 100% in whatever I commit. Not to mention I am a mother quickly learned how rewarding teaching paralegals could of three boys and somehow manage to keep up with them be. But I was also struck at how difficult a job it is, and in all they do.If elected, I will bring my exposure to many how little information is available to lawyers interested in areas in the field, my dedication and my enthusiasm to teaching. Lawyers are not automatically effective teachers. the AAfPE board. I bring a great deal of experience and So when attended sessions at the AAfPE conferences that enthusiasm to learn. My hope is to move AAfPE into the specifically offered ideas and best practices on how to future and grow with it. It is in this spirit that I submit my teach paralegals, I was thrilled, and to this day, I value the candidacy and ask for your vote. critical role AAfPE plays in bringing quality education to our paralegal classrooms. The University of La Verne offers a bachelor’s degree program as well as a certificate program. I personally advise our students on their academic progress and have DIRECTOR, CERTIFICATE PROGRAMS therefore gained familiarity with the needs of both these Carolyn Bekhor types of programs. I’ve also assisted in the preparation University of La Verne of our ABA approval for our program, including the site visits. In that vein, I feel confident I can be a voice for other certificate programs across our region. Additionally, I hope Since 2013, I have had the honor of serving AAfPE as the my work with the editing team for The Paralegal Educator Editor-in-Chief for The Paralegal Educator. Prior to that, I has allowed members to get to know me a little, and feel worked with Janet Olejar as her Assistant Editor after some comfortable with bringing their concerns to me so that time as part of the general editing team, along with Steve I can convey them to the rest of the Board. As I tell my Dayton. Working with Janet, my fellow AAfPE members, students and friends, my door is always open and I will and every author interested in publishing an article in always listen to your story. the Educator, has been among the most rewarding and enjoyable experiences in my professional life. There is nothing like reading an article fresh from a hopeful author and then seeing that work in its final, refined form, along with LEX essays, our wonderful OM column, the AAfPE Bytes newsletter, and so much more. I first came to ABA COMMISSION - ASSOCIATE PROGRAMS AAfPE as a brand-new Assistant Professor for the Legal Keeley Mitchell Studies department at the University of La Verne in 2007. Delaware County Community College At my very first session, the Newcomer’s session, I met Pam Bailey. There, she shared about the Educator and the Sidebar which struck me as perfect opportunities to volunteer. I didn’t hesitate to step up to the Publishing My name is Keeley Mitchell, and I want to take an active role Committee and I’m so thankful I did. I couldn’t be happier in improving the associate programs that focus on paralegal with how my service for AAfPE has evolved, and for so and legal studies. Paralegal education has developed many friendships that have come out of this excellent tremendously over the years,and I am excited to offer my organization. work experience and talents to help associate programs adequately plan for the challenges related to the future So now, in running for a position on the Board of Directors, growth of the paralegal profession.However, what I think is I hope to continue serving in a new capacity. most important to note is that I am passionate about paralegal education and am committed to its continued As far as my history goes, I have been teaching since development andpromotion. 2004. I began at Mt. San Antonio College where I was first introduced to paralegal education. I came from the private sector, having practiced law for ten years in the
THE PARALEGAL EDUCATOR FALL/WINTER 2017 51 I have held many different roles over the years, which I am the Certificate program members of AAfPE at each Board confident will be beneficial in my role as an ABA Commission meeting. By reaching out to our members, I learned their Representative - Associate Programs. I practiced law with top concerns, and advocated to the Board to recognize and the assistance of paralegals, taught as an adjunct in accommodate the unique challenges facing these members. paralegal studies program at Burlington County College, served as a legal recruiter for the largest legal recruiting firm As many of you know, I have been an enthusiastic (and vocal) in the world, held the position of Director of Government member of the North Central Region since my very first year Relations and Public Interest at University of Pittsburgh as an AAfPE member. I have hosted and co-hosted three of School of Law, and most recently, hold the position of Direc- our regional conferences in Chicago; and have been known tor of Paralegal Studies at Delaware County Community Col- to consistently bring a large contingent of faculty from my lege. At BCC, Pitt Law, and DCCC, I have been involved with school to our regionals (literally by the busload, and even the ABA reapproval process. RV); generating significant financial support and participation for our conferences. Furthermore, in my position as Director of Paralegal Studies My school is a public community college in northern Illinois at DCCC, I have worked on insuring my program meets the offering two ABA approved programs: a paralegal studies accreditation requirements of Middle States Commission degree and post-degree certificate. I began teaching part time on Higher Education. My experience with Middle States in 1993 while practicing law full time. In 2005, I was hired accreditation has given me some insight into how to develop and implement a new paralegal program. As I institutions respond to the accreditation/approval process navigated the ABA approval process, the culture of academia, and efficient steps to take in order to satisfy accreditation/ap- developed curriculum, and conducted assessments (while proval requirements. teaching), AAfPE was there for me every step of the way! As a Director of Paralegal Studies of an ABA-approved By way of other relevant experience: I was appointed to the program, I am knowledgeable about the deliverance of ABA Approval Commission (2010-13) and conducted over 20 paralegal education in accordance with ABA requirements. site visits across the country for the ABA. I visited private and In addition, over the years I have gained experience with public schools, assessing all manner of paralegal degrees and curriculum design, programming, marketing, and budgeting. certificates, learning all the diverse ways quality paralegal I look forward to sharing my trials and tribulations in order to education can be delivered. I will continue to bring this global help other associate programs become the best that they can perception, reliability and dedication to the AAfPE board. be. Moreover, I aim to be an advocate for associate programs and bring their voice and perspective to the ABA Commission. No stranger to board service and committee work, I was elected I would appreciate your vote for me, Keeley Mitchell, to serve to the board of the Association of Women Attorneys of Lake as your ABA Commission Representative-Associate Programs. County for over ten years, including a six year cycle as their Vice President, President, and Immediate Past President (2012- 2016). I also serve on my institution’s Faculty Development Advisory Committee which plans professional development workshops and conferences for faculty across all disciplines, DIRECTOR, NORTH CENTRAL REGION and I was recently appointed to our Enrollment Management Gayle Miller Commission. In 2012, I completed the ABA’s New Bar Leaders College of Lake County Institute. There, I learned about optimal processes, motivation of members, and production for volunteer professional associations- all directly transferrable to serving AAfPE. Hello. I’m Gayle Miller from the College of Lake County My first AAfPE conference was the national in Tampa, 2005. Illinois, current Certificate Programs Director to the AAfPE I had been on the job for less than three months (i.e., I Board, candidate for Director, North Central Region. knew nothing). With the warm welcome of the AAfPE I was elected last year to fill a one year vacancy as the leaders, this association instantly became my professional Certificate Program Director and I’d like to be the next community, my primary resource for information, guidance Director for the North Central Region. Since taking office and sympathy. It is in this spirit that I submit my candidacy last October, I diligently prepared and zealously represented and ask you to elect me to the position of Director, North Central Region. Thank you.
52 FALL/WINTER 2017 THE PARALEGAL EDUCATOR DIRECTOR, NORTHEAST REGION DIRECTOR, SOUTHEAST REGION Judith Mathers Maloney William McSorley Molloy College Midlands Technical College
My journey to the AAfPE Board of Directors as Director, My involvement with AAfPE began in 2002, when I became Northeast Region began in 2013 when I stepped in to the program director at Midlands Technical College in fulfill Pat Lyons’ term after she had been named President- Columbia, SC. My school has been involved with AAfPE Elect, and I was honored to have been elected to my own since the 1980s and we have reaped many benefits from first term the following year. I am humbled to have been our membership in the organization. nominated again to serve as your Director, Northeast Region for my second (and final) term. I have served as the interim regional director and enjoyed getting to know many of you over the past year. I previously While maintaining my law practice, I started teaching served a three-year term as an AAfPE rep on the ABA at both the university and graduate level at institutions Approval Commission and hosted or co-hosted two Regional throughout downstate New York. I realized early that I was AAfPE conferences. It has also been a great opportunity to drawn to the field of paralegal education. We are given have attended 12 of the past 15 national conferences, while the unique opportunity not only to prepare our students presenting at a number of them. with a solid foundation in law but also to empower them with marketable skills. Currently, I am the Director of Legal My years in AAfPE and in the profession have given me the Studies/Paralegal Studies and a member of the adjunct ability to serve my colleagues in the Southeast region as an faculty at Molloy College in Rockville Centre, NY, and remain initial contact for a variety of purposes. I have resources invested in promoting paralegal education. in nearly every facet of the process and enjoy assisting colleagues and helping them network with fellow program As an AAfPE member, I discovered a community of directors, vendors, and other professionals. colleagues who understood my concerns and complaints, who were ready to share information, and who could offer I can also play a key role in setting up worthwhile guidance and direction. I was home! I have presented at conferences, as I did this past year in New Orleans, and help numerous regional and national conferences and worked on make AAfPE an even more valuable resource in the future. a National Conference Committee. Thank you for considering my nomination. As Northeast Regional Director, I have, together with various hosts, planned and coordinated our well-attended and popular Regional Conferences. I have brought your issues to the AAfPE Board and stood as your representative at the Board meetings. The Northeast Region has a steadfast presence on the AAfPE Board of Directors. I would be honored to be re-elected to the AAfPE Board as Director for the Northeast Region. I welcome the opportunity to move forward with the work of the Board and to continue to bring Northeast region concerns to the floor at Board meetings. I ask for your vote so that I may be allowed to further contribute to the fluid evolution of AAfPE on behalf of our Northeast region.
THE PARALEGAL EDUCATOR FALL/WINTER 2017 53 Tiny bits of help on distance education and technology in any classroom
AAfPE
2017
TEACHING kCURA RELATIVITY
By Robert O'Reilly, Adjunct instructor, Computer Applications for Paralegals at Middlesex Community College in Bedford and Lowell, Massachusetts
Teaching Computer Applications for Paralegals means not only making sure my stu- dents are proficient with Microsoft Word, but that they are exposed to the various types of software they might encounter in a legal environment. In addition to the MS Office Suite, we also work with time and billing, trial presentation, legal research tools, software used to create forensically sound copies of hard drives, and document review platforms. Last year, I was able to introduce kCura’s Relativity into my class.
Document review platforms are used by law firms, government agencies, and corpo- rate legal departments to prepare document productions. These productions can be for litigation, due diligence reviews for mergers and in-house investigations. The cor- porate record is now digital, and since 2006 the U.S. District Courts have adopted rules requiring that electronically stored information be produced electronically. It is now common for attorneys and paralegals to review documents in digital form and produce in digital form.
BYTES The goal was to make sure that students are exposed to tools that they will see in the workplace. For specialty applications like document review platforms, I want them to see what is being used. For document review Relativity is the leading product in use by many law firms, government and corporate legal departments. There are also many Vol. 8 Issue 2 service providers that offer support to the legal community that use Relativity. These Summer/Fall service providers also hire paralegals. 2017 kCura offers a large array of training classes for their products at their offices in Chica- go. Even better, they offer free training to members of the academic community and access to the software for my students and me. The specific class offered is the Rela- tivity Administrator class and certification. Because kCura does not pay for transporta- tion and lodging, I applied for and was awarded a grant through my school to cover transportation, lodging, and meals. So I was off to Chicago for the training.
I returned from Chicago with my certification and materials that I could use in class. The following semester I incorporated Relativity into my class. Software is best learned with your hands on the keyboard, and with Relativity that means running searches and reviewing documents. At no charge to the school, kCura provides us with access to the software for all the students in the class. The
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This issue of AAfPE Bytes is edited by Doris Rachles, South University, Savannah, Georgia
54 FALL/WINTER 2017 THE PARALEGAL EDUCATOR AAfPE kCura (continued)
After using this software for the past year, my students say they appreciate being
exposed to Relativity. Most students come to class with exposure to the MS Office Suite, and enjoy getting into something new. Additionally, kCura offers extensive training materials, including numerous videos, on their website, and I always encour- age students to look at these. Interested students can sign up for a free Relativity Reviewer certification that requires that they watch a selection of videos and take a test. Introducing kCura Relativity into my classes has been a beneficial experience for the students and one that will help prepare them for the competitive paralegal job market.
BYTES TEACHING COMPETITION 2.0 EDUCATOR'S CHOICE!
Vol. 8 Issue 2 Summer/Fall 2017 SOMETHING NEW IS IN THE AIR!
Join us for the all new Educator's Choice Teaching Competition! Research shows that the line between online and face-to-face teaching is blurring fast. On-ground classes are incorporating more online elements, virtual classes are becoming more "real" by using multimedia, and hybrid courses gain popularity every year. So, this year's teaching competition will allow the Educator to decide what they would like to showcase, be it traditional, online, or a hybrid of methods. Competitors are allowed to present their very best online or face-to-face teaching methods or a combination of the two highlighting how they complement each other. Prize money will be awarded to the first and second place winners!
Contact:
Julia M. Dunlap, Esq., AAfPE President Director of Business and Legal Educa- tion UC San Diego Extension [email protected]
THE PARALEGAL EDUCATOR FALL/WINTER 2017 55 FREE CERTIFICATIONS FOR AAfPE LEGAL TECHNOLOGY By Cynthia Robbins, Director Legal Studies South University, Virginia Beach, Virginia
You can help students gain access to the following certifications so they can improve their legal technology skills.
1. CLIO
Requirements: Students do not have to have an existing Clio account to become certified. Website for Clio Product Pro Certification: https://www.clio.com/clio-product-pro/.
Follow directions to gain access to modules and upon successful completion, users ear Clio Product Pro Certification.
2. LEXISNEXIS PARALEGAL STUDENT CERTIFICATE OF MASTERY BYTES Requirements: Students do not have to have an existing LexisNexis account to become certified. Website: https://www.lexisnexis.com/university/catalogue.aspx? Vol. 8 Issue 2 searchterm=paralegal%20certificate%20of%20mastery Summer/Fall 2017 In the search box, type student paralegal certificate Classes will appear for Modules 1 through 5. Select launch next to Module 1 and then screen will appear to create new account. Create new account. Complete Modules 1 through 5 successfully and then follow the steps to receive your certificate.
The student paralegal certificate trainings available on demand are 2017 Student Par- alegal Certificate – Module 1 – 5, covering the basics of Lexis Advance: 1. Introduction 2. Search Tips and Navigation Advice 3. Statutes and Regulations 4. Court and Agency Opinions 5. Shepard’s Reports and Legal Issue Trail
3. WEST PARALEGAL TRAINING CERTIFICATES
Requirements: Students do have to have an existing Westlaw OnePass account to complete the training certificate program. Website: https://training.westlaw.com/paralegal
Select WestlawNext Certification Select Certification: Research More Efficiently or Research More Productively Complete at least six of the lessons and earn passing score of 70% or higher for each lesson.
56 FALL/WINTER 2017 THE PARALEGAL EDUCATOR ENHANCING COURSE DELIVERY: AAfPE NUTSHELL LECTURES FOR INCREASED ENGAGEMENT By: Stacey L. Callaway, Esq., Rowan College at Gloucester County, Sewell, New Jersey
(Part 1 of 2) Part 1 focuses on the videos and Part 2 focuses on the technical aspect of Camtasia and the other programs. Check the next issue of AAfPE Bytes for Part 2!
Despite our best efforts in student engagement, the sage on the stage is alive and well in learning environments all around the country. We have all met him or her and perhaps have even stepped in and portrayed the sage at times in our own class- rooms. But consider this: between 2000 and 2015, the average attention span dwin- dled from 12 seconds to only 8.25 seconds (Attention Span Statistics, 2017). If we account for an additional few years, we can imagine it is even more today to keep our students' attention at any point in our lectures, especially those online. This was the impetus behind me developing what I call "Nutshell Lectures."
Screencasting, an inevitable outgrowth of the decades-old "Print Screen" function of computers, has allowed instructors to make their courses, particularly those online, more much engaging for students. For example, when discussing how to write a di- vorce complaint with Family Law students, I might record myself drafting a divorce complaint, create a video, and then upload the video to the learning management sys- tem (LMS) for students to view.
"But that seems like a lengthy video. Why is this called a 'Nutshell Lecture'?" BYTES Simple. We often think of online lectures as full-length slideshows of someone narrat- ing lecture notes over the course of 30 minutes or more. With Nutshell Lectures, less is always more. If I cannot say it in a couple minutes, I do not say it. While the exam- ple of drafting a complaint may be a bit longer, it is certainly the exception. The prem- ise of the Nutshell Lecture should be attention-getting, need-to-know facts that are memorable and delivered in an engaging manner. Here are recommendations for cre- ating “Nutshell” videos:
Keep it simple. The goal is not to recreate either the face-to-face or the online lec- ture but to simply highlight the most important aspects of the material.
Vol. 8 Issue 2 Work with what is comfortable. If you are screen-capturing a presentation, there is Summer/Fall no need to make it “flashy”. Research has found that Khan-style table drawing 2017 tutorials are more engaging than PowerPoint slides. Shorter videos are much more engaging. Keep the video to shorter than six minutes. Informal is best. Videos pro- duced with a more person- al feel are more engaging to students.
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AAfPE Alternative Delivery and Technology Committee Members Halye Sugarman, Chair, Loretta Calvert, Susan Jaworowski, Doris Rachles & Sheryne Southard
THE PARALEGAL EDUCATOR FALL/WINTER 2017 57 ENHANCING COURSE DELIVERY: NUTSHELL LECTURES FOR INCREASED ENGAGEMENT AAfPE (Continued)
So what do you need to get started? Most of us have access to some sort of screen- casting software by virtue of our institutions. Many colleges and universities will encour- age students to use web-based software including Screencastify (www.screencastify.com, for Google Chrome) or Screencast-O-Matic (www.screencastomatic.com, Cloud/Multi-platform), while more advanced users will ven- ture out into options like Camtasia (www.techsmith.com, Windows/Mac OSX) where full- editing capabilities become a digital playground. Be wary about getting too carried away here—remember, less is always more. We are interested in student success with just the information they need, so be careful not to demonstrate your innate ability to create Academy Award-quality videos.
When it comes to student engagement, there is no cutting corners. But if we had to leave something out, we should start with old fashioned sage on the stage who simple lectures content at students until they know it or hate it. The Nutshell Lectures are one way to try to get back to basics—engaging delivery for engaging content. The perfect marriage? Let
BYTES the family law folks decide that!
Sources: Attention span statistics. (2014). Statistic Brain. Retrieved from http:// Vol. 8 Issue 2 www.statisticbrain.com/attention-span-statistics/. Summer/Fall Dixson, M. D. (2010). Creating effective student engagement in online courses: What do 2017 students find engaging? Journal of the Scholarship of Teaching and Learning, 10(2), 1- 13. Guo, P.J., Kim, J., & Rubin, R. (2014). How video production affects student engage- ment: An empirical study of mooc videos. Retrieved from http://up.csail.mit.edu/other- pubs/las2014-pguo-engagement.pdf
Educators on all levels often grapple with the age-old question, “How can I get my stu- TECHNOLOGY TOOLS THAT CAN EASILY BE INTEGRATED INTO ANY PARALEGAL CLASS
By Joseph Fell, Assistant Professor of Paralegal Studies at Cuyahoga Community College, Cleveland, Ohio
dents to remember this material long after they have left our classes?” Typi- cally, educators have used quizzes and exams to measure content knowledge. In the midst of dealing with the myriad responsibilities that life places on our students’ plates, even the most motivat- ed students may wait to study until shortly before the assessments are ad- ministered. All of us have undoubtedly “crammed” at some point in our educa- tional careers, and I’m sure that most who have done this likely agree that much of the material that we “crammed” into our short-term memory never made the important journey to the long-term memory banks of our brain.
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58 FALL/WINTER 2017 THE PARALEGAL EDUCATOR TECHNOLOGY TOOLS THAT CAN BE EASILY
INTEGRATED INTO ANY PARALEGAL CLASS AAfPE (Continued)
Over time, I
have observed that intentionally incorpo- rating regular review activities into my classes has helped improve long-term retention of material. I have had the privi- lege to have many of our students for con- secutive semesters, and I have been en- couraged by our students’ success in re- taining and applying knowledge through- out the duration of our program!
This article covers three technology tools that can be easily integrated into any para-
BYTES legal class and that provide students with the opportunity to engage in informal re- view of course material. Educators can monitor student performance and use this data to determine whether students have mastered the material or whether additional reinforce- Vol. 8 Issue ment is needed. As a bonus, incorporating these tools also cultivates a more engaging 2 classroom experience! Summer/ Fall 2017 Kahoot! (kahoot.it) allows educators to create groups of multiple choice questions that students can answer individually from their computer or smartphone. Educators can design questions ahead of time that are intentionally designed to measure specific learn- ing objectives and utilize this tool at strategic times in order to monitor retention of im- portant material. Kahoot! does not require students to login and allows students to select an anonymous username to participate, allowing educators to implement it in a seamless manner. Kahoot! features a leaderboard that enables students to see how they are per- forming relative to other members of the class, which can add a fun and competitive ele- ment to your review activities. For students who don’t have smartphones or computers, I recommend pairing them up with those who do and creating a spirited class-wide review competition!
Plickers (plickers.com) can also be used for informal review exercises using multi- ple choice questions. Plickers does not require students to use technology in order to an- swer questions, making this a great option for educators whose students lack access to technology. Plickers provides a set of QR codes that can be printed and distributed to stu- dents at the start of class. Students provide their answers by holding up the appropriate side of their own printed QR code, and educators obtain their answers by scanning all of their students’ codes with their smartphone.
Using a Jeopardy-style format is a fun and familiar way to conduct review that is intended to be more intensive in scope and longer in duration. A search for “Jeopardy PowerPoint review template” will provide you with a downloadable PowerPoint template that can be customized according to your needs. Because the questions and answers can be saved and shared online, this tool is an excellent way to implement review in distance learning classes and to allow students in all formats to review material on their own.
I hope that you find this article to be helpful! If you have any questions about how I have incorporated these tools into my classes, please e-mail me at [email protected].
THE PARALEGAL EDUCATOR FALL/WINTER 2017 59 222 S Westmonte Drive, Suite 101 Altamonte Springs FL 32714 Address Service Requested
AAfPE Board of Directors Terms of Office End as Noted OFFICERS DIRECTORS Julia Dunlap, President (2017) Michael Speck, J.D., Director, South Central Region (2019) Debra Geiger, Director, Director of Legal Education Assistant Professor Associate Programs (2018) University of California - San Diego Extension Tulsa Community College Metro Campus Department Head 8950 Villa La Jolla Dr., Ste. 201C 909 South Boston, MCAC G30 Savannah Technical College La Jolla, CA 92037 Tulsa, OK 74119 5717 White Bluff Rd. Phone: (858) 534-8164 Phone: (918) 595-7317 Savannah, GA 31405 Email: [email protected] Email: [email protected] Phone: (912) 443-5715 Kye Haymore, President-Elect (2017) William McSorley, Director, Southeast Region (2018) Email: [email protected] Assistant Professor of Paralegal Studies Paralegal Program Director Mary Flaherty, Director, Baccalaureate Georgia Piedmont Technical College Midlands Technical College 8100 Bob Williams Pkwy Post Office Box 2408 Programs (2018) Covington, GA 30014 Columbia, SC 29202 Director, Applied Legal Studies Program Phone: (404) 297-9522 Phone: (803) 822-3620 Suffolk University Email:[email protected] Email: [email protected] 73 Tremont St., 10th Fl. Boston, MA 02108 Robert Mongue, Immediate Past President (2017) Judith Mathers Maloney, Director, Northeast Region (2017) Phone: (617) 308-1958 Associate Professor of Legal Studies Director, Legal Studies/Paralegal Studies Email: [email protected] University of Mississippi Molloy College 319 Odom Hall 1000 Hempstead Ave. Gayle E. Miller, J.D., Director, PO Box 1848 Rockville Centre, NY 11571-5002 Certificates Programs (2017) University, MS 38677 Phone: (516) 323-3812 Professor Phone: (662) 915-7293 Email: [email protected] College of Lake County Email: [email protected] Donna Schoebel, Director, North Central Region (2017) 19351 West Washington Street, Office T 207 Steve Dayton, Interim Secretary (2017) Adjunct Professor Grayslake, IL 60030-1198 Director of Paralegal Studies Capitol University Law Center Phone: (847) 543-2517 Fullerton College 303 E. Broad St. Email: [email protected] 321 E. Chapman Avenue Columbus, OH 43215 Fullerton, CA 92832 Phone: (614) 236-6444 AAfPE Headquarters Phone: (714) 992-7223 Email: [email protected] Email: [email protected] Dave Wenhold, Executive Director Dwight Dickerson, Director, Pacific Region (2018) Tonya Wade, Deputy Director Wm. Bruce Davis, Treasurer (2017) Director of Paralegal Studies 222 S. Westmonte Drive, Suite 101 Associate professor of Legal Studies California State University -East Bay Altamonte Springs, FL 32714 University of Cincinnati - Clermont College 28500 Carolos Bee Blvd. Office: 407-774-7880 4200 Clermont College Dr. Hayward, CA 94542 Email: [email protected] Batavia, OH 45103 Phone: (510) 885-2311 Phone: (513) 732-5305 Email: [email protected] Email: [email protected]
MISSION: To provide greater access to legal services by promoting quality paralegal education.