Effective Use of Paralegals in Civil Litigation

As clients push for more services for less money, attorneys and firm management are faced with keeping a careful eye on the bottom line while still providing high-quality legal services. One of the most efficient ways to keep clients happy in this regard is to put paralegals to work. The days of paralegals performing the same tasks as legal secretaries are gone. Each member of the legal team has a different range of responsibilities and abilities. Making the most efficient use of a paralegal’s skill set is one of the best ways to decrease overall legal expenses, while still maintaining a high level of legal support to clients.

First, what is a paralegal? California is the only state that regulates paralegals by statute, requiring one who calls him or herself a “paralegal” to meet specific educational or experience qualifications and continuing education requirements. Unless you have completed an ABA-approved program (or other paralegal certificate program, or been “grandmothered” in prior to December 31, 2003), it is unlawful for anyone to identify as a paralegal in California. Bus. & Prof. Code §6450(c). The ABA defines a paralegal as one who “performs specifically delegated substantive legal work for which a lawyer is responsible.”

Historically, paralegals were people and document managers. That is, we used to believe that paralegals only coordinated with experts and witnesses to ensure that everyone had the information and documents they needed to prepare expert reports, provide consultant services, and that witnesses were where they needed to be for depositions and trial. Paralegals in California are able to do so much more. According to California Business and Professions Code section 6450(a), a paralegal is one who “performs substantial legal work under the direction and supervision of an active member of the State Bar…that has been specifically delegated by the attorney to him or her.”

Keeping in mind that a paralegal must work under the supervision of an attorney, paralegals can (and should!) perform substantive legal tasks, which can lighten a supervising attorney’s workload, and decrease a client’s legal services bill. As with any employee, the specific skill set will depend on his or her strengths and weaknesses. By statute, paralegals can perform tasks like case planning, development, and management; legal research; interviewing clients; fact gathering and retrieving information; drafting and analyzing legal documents; collecting, compiling, and utilizing technical information to make an independent decision and recommendation to the supervising attorney; and representing clients before a state or federal administrative agency, if permitted by statute. Bus. & Prof. Code §6450(a).

Here are some practical examples of what paralegals graduating from programs approved by the American Bar Association can do.[1]

Pre-Litigation

A paralegal is trained to do initial client intake interviews. A paralegal can also create the necessary fillable forms or templates related to client intake interviews. This means that a paralegal can be the point person in triaging a case, and provide attorneys with an early case overview, including a summary of facts, witnesses, potential causes of action, impressions of the client, and a basic discovery plan. Additionally, a paralegal can perform informal discovery by locating and taking statements from percipient non-party witnesses, research client and/or opposing party’s online presence, and research property history or financial status. As the case moves forward, having a paralegal involved from the first stages of a matter will result in time and resource efficiencies.

Pleading Phase

Drafting complaints and answers on Judicial Council forms or otherwise, are comfortably within a paralegal’s wheelhouse. Paralegals can also analyze an opposing party’s pleading to determine which, if any, motions attacking the pleading are appropriate, and prepare a draft of such a motion (and any required meet and confer letter) for review.

Discovery

It is in this phase that a paralegal can save a client the most money. With attorney supervision, a paralegal can prepare a discovery plan and implement it. This includes: preparing form interrogatories, special interrogatories, inspection demands, requests for admissions, and responses to each.

Paralegals are commonly used to prepare and track the service of, and production of documents in response to subpoenas. Even more than that, though, is that a trained paralegal who is empowered to act as a case manager, can keep track of all discovery served, responses prepared, discovery-related deadlines, and prepare meet and confer letters for discovery disputes. As all the involved parties begin to produce documents and Electronically Stored Information (“ESI”), a paralegal can organize and issue code the ESI to facilitate quick retrieval and production of redacted and bates stamped documents to the opposing parties. Paralegals can coordinate with outside vendors for the collection of ESI, and understand the ethical obligations of attorneys and their paralegals related to e-discovery.

Trial Preparation

At this point, an empowered and efficient paralegal is one of, if not the most knowledgeable about the details of the case on your team. He prepared the deposition summaries, which can translate into assisting you with your witness outlines for trial. She is the point person for general communication with the client, which can make her an asset when it comes to discussions about settlement and mediation. He has become the client’s friend; the person the client asks for when the attorney is unavailable. This relationship is invaluable as alternative dispute resolution is explored and attempted, and in helping get your client ready for the trial process.

Additionally, paralegals can research the applicable rules on pre-trial requirements, and prepare jury instructions, verdict forms, witness and exhibit lists, and even draft basic motions in limine.

Trial Presentation

Depending on the client, and how tech savvy your paralegal is, you may want to have her at trial with you. She may be able to operate the trial presentation software, ensuring that the jury is oohing and aahing during your opening and closing, and so the jurors pay special attention to conflicting testimony or complicated reports during your cross-examinations. If you are not using any visual presentation technology, then your paralegal can help you locate exhibits, and keep track of which exhibits have been admitted into evidence so far.

Overall, paralegals are an invaluable resource on your litigation team. Start giving your paralegal more substantive legal work in the litigation process to decrease the bottom line, and to free up your desk and calendar to work on strategy and trial!

[1] What a paralegal may not do is outlined by statute. See, Cal. Bus. & Prof. Code §6450(b). Notably, a paralegal shall not provide legal advice, represent a client in court, engage in conduct that constitutes the unlawful practice of law, or establish the fees a client will be charged for the paralegal’s services. Other than the specifically provided tasks, a paralegal can perform any substantive tasks you might assign to a new associate.