The Entitled Opinion - A New Blog Column for Paralegals

   Woman arms folded gi  Over here at The Estrin Report, we love new ideas.  That's why we are launching The Entitled Opinion - a new sporadic column featuring guest bloggers with definite opinions.  We encourage you to write in.  Tell us what's on your mind; what peeves you have; what success stories you've witnessed; changes you'd like to see and observations you'd like known.

    To kick things off, we introduce you to Sydney Muray, paralegal, today's guest blogger:

Wal-Mart v. Dukes was an important Supreme Court case that dealt with class action lawsuits, appealing to lawyers and paralegals alike. The original plaintiff, Betty Dukes, sued Wal-Mart for sexual discrimination and joined in her lawsuit all 1.6 million women who have worked for Wal-Mart since 1998. The Court's rejection of the class in its current form was an unanimous decision. However, its decision to reject the class in any form was split five to four along ideological lines with the conservative justices in the majority. That portion of the opinion was contrary to basic notions of justice, and will have far-reaching ramifications for gender discrimination lawsuits.

     The portion of the suit that resulted in a unanimous decision concerned a technicality regarding Rule 23 of the Federal Rules of Civil Procedure. All of the justices agreed that the rule did not allow the class in this case to pursue monetary damages. This was largely uncontroversial and had no major effect on the case because the class action was actually disposed of by the other portion of the ruling. That part of the decision constitutes the real crux of this issue: whether a massive class of litigants can join together to sue a corporation.

     Both parts of the opinion were written by Justice Scalia, a conservative, who was joined by all of his conservative colleagues and none of his liberal counterparts. That portion of the decision is particularly egregious because it has the effect of setting precedent that will substantially limit class action lawsuits in the future. There are two fatal flaws in the decision Justice Scalia handed down.

     The first flaw with the ruling is that it obfuscates the reality of the situation of these female employees. Justice Scalia denied the class certification based upon the notion that the class did not meet the "commonality" requirement for class action lawsuits. However, as Justice Ginsburg aptly notes in her dissent, the Rule “does not require that all questions of law or fact raised in the litigation be common...” This means, in general, that the circumstances of the female employees don't have to be exactly the same, just that they need to have something relevant in common. The commonality requirement was met because these women showed in their arguments that: 1. they are all women; and 2. Wal-Mart has been discriminating against women, causing them financial harm. As such, these women are entitled to relief as a class.

     Justice Ginsburg goes on to note facts illustrative of the actual harm that the female litigants have suffered. She points out that "Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only '33 percent of management employees.'" She also notes that “[T]he higher one looks in the organization the lower the percentage of women.” The statistics presented by the women, largely uncontested by Wal-Mart, also indicate that women in every region are paid substantially less than their male counterparts.

     Statistics like these are damning for respondents in a sexual discrimination suit, and if justice had been exercised in this case the majority of the court should have taken these facts into consideration. Instead, Justice Scalia opted to take advantage of a technicality and assert that the class didn't meet "commonality" requirements. Undeniably, the class was massive. 1.6 million people is no small number, but the sheer size of the class is no legitimate excuse to dismiss a case. The court rejected the class certification simply because it was massive, claiming that the litigants didn't have enough in common.

    A Bloomberg article sides with Scalia's ruling in this case, saying that Wal-Mart turned the statistics around on the plaintiffs, noting that they earn more at Wal-Mart from an earnings ratio perspective than their female counterparts in U.S. society at large. However, that is not a sufficient justification for dismissing this case. Demonstrating they do better at Wal-Mart does not prove that Wal-Mart is complying with the law of not discriminating against its employees.

     The second, and perhaps even more important issue with the majority ruling is the effect that it will have on class action lawsuits in general. The case will make it more difficult for large classes who have been harmed by a common respondent to join together in the future. Class actions are important because they offer a legal remedy for individuals without the financial resources to bring a lawsuit on their own. The plaintiffs in this case are a perfect example of those who need a class action to seek justice: women who are working at lower-paying hourly jobs at Wal-Mart than their male co-workers.

     Hiring legal counsel can be very expensive, and lawsuits are often long, drawn-out affairs. Low-income individuals trying to support families do not have the time or money to pursue litigation by themselves, and class action lawsuits allow them to join with large groups and be represented in absentia, giving them the opportunity to be heard and seek relief without personal expenditure. After this ruling, these women and many others like them may not be able to seek relief for the discrimination against them.

     This ruling is one that will have negative ramifications for class action plaintiffs in the future. It further harmed the women involved in that they received no recompense for the discrimination they experienced. Unfortunately, it also sets a precedent that will allow Wal-Mart to continue to ignore systemic discrimination in its organization.

 Guest blogs express the opinion of the author and not necessarily the views of The Estrin Report.

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They Shoot Paralegals, Don't They?

Working I was reading The Empowered Paralegal blog the other day and a paralegal was discussing the superior status she thought she had over paralegals who did not have paralegal degrees. In particular, she brought up the Erin Brockovich story and the subsequent movie that was made. Ms. Brockovich, she stated, was not a "real" paralegal because she did not have a paralegal degree.  She went on to state that the duties that Ms. Brockovich performed would never be tackled by a paralegal.  At least, she had never witnessed a paralegal doing what Ms. Brockovich did.

It’s very interesting to listen to the hot debate that the Erin Brockovich role has played over the years. I have heard more paralegals than not state how much they “hate” the role portrayed in the movie. Whether or not you choose to designate Ms. Brockovich as a “real” paralegal, it is very important that today's paralegals understand the history and development of the position.

In the '70’s and ’80’s and far reaching into the '90’s, anyone who wanted to could call themselves a paralegal. At the risk of revealing that I am definitely a member of the Boomer generation, I personally came up through the ranks starting in 1981. There were few paralegal schools at that time. Becoming a paralegal meant, for most, that you would receive training on the job. It is true that some paralegals came through the ranks of legal secretary but those were in the minority. During those times, let’s also understand that certain states, such as California, did not require someone to go to law school in order to take the bar exam. You were eligible if you worked under a mentor but law school was not required. That may still stand today, I’m not certain.

Paralegal schools were also rare in rural areas. This is one reason NALA was formed – to provide education. There was no Internet nor online courses. Even in Los Angeles, a major metro city, there were only three primary paralegal schools for a very long time – UCLA, CalState L.A. and UWLA. Some “match-book” cover type schools popped up. But what was worse? Learning on the job or plunking down good money for a school that also taught you how to be a bartender.

In 1980, I started out as a paralegal in Seattle for $1500 a month. I did have some legal secretary training. I got my first job at a prestigious small firm. I was trained on the job like anyone else. The administrator hired me because, at that time, I was in the theatre. He happened to have seen one of my shows, so he hired me. True story. Later, I moved to Los Angeles and got a job in a large, prestigious entertainment firm that handled the A list. Working with movie stars was an everyday and common experience.

In that role, I was very active becoming the firm’s first paralegal administrator. I recall that some of my assignments included meeting a cargo plane at LAX and working with customs to board the plane in search of fake ET dolls. (Really!) I was sent to the bottom of a famous L.A. hotel in search of evidence for a case. I waded through muck, spiders and ankle deep water in search of the “hot” documents. I went to Georgia to a carpet mill in the middle of nowhere in search of evidence. In Seattle, paralegals were allowed to go before the judge on certain non-contested matters. The first judge I went before put our case over when it was apparent the other side was not showing up. Apparently, the defendant’s counsel had decided to go moose hunting. The judge thought that was a perfectly good excuse not to attend court. Meanwhile, I was always taught by the best attorneys, attended seminars, read books, and learned my job as it pertained to the firms in which I was working. And that’s the key element here – education as it pertained to the firms in which the paralegal worked.

To put down those paralegals who literally blazed the trail for other paralegals while the education system was in its infancy is a travesty. Passing a paralegal course does not ensure that the paralegal will be a good paralegal. Passing the bar does not mean the lawyer will be a good lawyer. It only means that they have studied and should possess core competencies.

It is interesting that years and years later, I make my living in continuing legal eduation. I am a very strong advocate and a firm believer that paralegals should not be paralegals without first obtaining an education in paralegal studies. Good paralegals without the academic training came up the hard way - no schools available, on-the-job training, no real job descriptions.  They worked hard to make this new profession work. They took it among themselves to develop good assignments, they trained attorneys how paralegals could be used, they started paralegal associations (I was one of 8 co-founding members of the International Paralegal Management Association - IPMA); and they worked hard getting the word out about this new position. To discredit your history and those paralegals is a travesty. Remember, it took California 10 long hard years to get AB 6450 passed. That law now requires mandatory education for paralegals.  However, when it passed, it still grandfathered in those without the required education.

As for Ms. Brockovich, not once in the movie was she referred to as a paralegal. Was she rough around the edges? You bet. Was that taking literary license in the movie? For those of us who haven’t met her, we don’t know. Was she then and is she now called a paralegal? No. Was her purported $2 million bonus a “percentage” of the settlement and ethics violation as some charge? Now, we really don’t know, do we? In California in the ’80’s and decadent ’90’s, paralegals at some firms were given large bonuses. (The firm I was with in 1986 was giving out $20,000 – $30,000 bonuses – and that was 1986 dollars.) Truthfully, none of us know except Ms. Brockovich and her boss, Mr. Massry, what that bonus was based upon nor how it was calculated. We only know rumors. If there was any impropriety, I am quite certain the State Bar of California would have stepped in.

Some paralegals have made up a story about Brockovich, believed it and made it their truth. It’s not that this message is defending Erin Brockovich. It’s that those paralegals flouting their Masters, A.A.'s and B.S.’s in Paralegal Studies claiming they are better than those without have no respect for the trailblazers that came before them. It’s disrespectful and an arrogant slap in the face to the thousands and thousands of paralegals who came before them. Things have changed and improved but only very recently. Those paralegals without the schooling are the very same paralegals who pushed for more acceptance,professionalism, better training and education for all paralegals nationwide. The least we can do is honor them.


"MySpace Helps Attorneys Find Clients"

Smart, very smart! This Legal Technology article describes what kinds of firms & clients might benefit from a page on MySpace:

"When Missouri City, Texas, entertainment lawyer Leslie Warren Cross launched a MySpace.com page in 2006, he wanted a way to provide up-and-coming musicians basic information about the legalities of music contracts.

"But Cross says that as he acquired 'friends' on his MySpace page, he realized the Internet social networking site is a great marketing tool for his firm, Les Cross & Associates, and a way to stay in contact with his vagabond musician clients. 

[snip]

"Deborah McMurray, chief executive officer of Content Pilot in Dallas, who gives marketing advice to firms, says she wouldn't recommend MySpace to the large Texas firms.

"'It might be appealing to the 20-something, the Gen X, Gen Y group, in terms of connecting with their friends or keeping in touch with law school classmates and that kind of thing, but I don't envision major law firms — major business-to-business law firms -- thinking that would be a new source of new business,' McMurray says."

A search for "lawyers" on MySpace retrieved these results....


Entertainment paralegal with autistic son makes film

Documentaries focus on insiders' view of autism [registration req'd], including a film made by a paralegal:

"When Taylor Cross was 14, he told his mother he wanted to earn money to pay for the Christmas gifts they planned to give a needy family.

"Keri Bowers was moved by her son's display of empathy. Cross was diagnosed with high-functioning autism at age 6 and struggles with social skills. Bowers suggested household chores he could do to earn the money.

"No way, he said. He wanted to make a movie and sell it.

"No way, she said. As a paralegal in the entertainment industry in California, she feared the venture would flop.

"In the end, the mother and son collaborated on Normal People Scare Me, a documentary on people with autism. Its success led to a second documentary, Sandwich Kids, for siblings of people with disabilities."


"Sheppard Mullin Launches Fashion & Apparel Practice Group"

This sounds like a very interesting group! Hmm, wonder if they need any paralegals?

"Sheppard, Mullin, Richter & Hampton is stepping onto the runway with the launch of its new practice group: fashion and apparel.

"From negotiating contracts for TV reality show 'Project Runway' to fending off UGG boot knock-offs, the new group is marketing itself as the go-to firm for Los Angeles and New York's booming fashion industries.

[snip]

"The firm's debut seminar during this year's New York fashion week advertised: 'Get the skinny on FAT [Fashion Apparel Team] law,' and displayed a sketch of a lanky model. The event featured talks on topics such as celebrity licensing agreements and modeling contracts."


"A bunch of paralegals" helps Warner

The ITV Interview with Eric Frankel [PDF link], President of Warner Bros. Domestic Cable Distribution:

[snip]

Frankel: "Yes. First, you need to look at all your rights, program-by-program and episode-by-episode, to see if you have the rights to put it on the Internet.

[snip]

"A couple of years ago, I said, 'Gee. One of these days, Internet TV is going to happen, and we should try to be the first guys in--or at least one of the first--so that we can control our own destiny by building our own retail store where we can directly sell to consumers, without Wal-Mart or Showtime or Tribune or USA Network getting in the middle and acting as a roadblock.'

So we went out and brought in a bunch of paralegals. We started going through all of our television library. Over the course of a couple of years, we cleared 300-plus television series, and about 14,000 to 15,000 episodes of programming."

[snip]

[itvt]: "And, as a result of the efforts of your team of lawyers and paralegals

Frankel: "We found 14,000 to 15,000 episodes that didn't have issues. We had acquired the necessary rights for them either because we were forward-thinking or because people simply gave us those rights."


Product Placement, Branded Entertainment = New Practice Area

Interested in entertainment law? Learn about "branded entertainment" deals:

"It's no accident that contestants of 'The Apprentice,' Donald Trump's reality television show, designed the actual marketing brochures for a new Pontiac model. Or that the Man in the Yellow Hat in the recently released 'Curious George' movie drives a Volkswagen.

"They're the results of a new type of promotional contract between advertisers and entertainment, loosely dubbed 'branded entertainment,' which is generating substantial revenue for many law firms throughout the United States.

[snip]

"Most of the law firms that structure brand entertainment deals already have developed advertising and entertainment practices, typically in New York and Los Angeles. With branded entertainment deals, both departments are working closer together.

"'It's been a tremendous growth area for us, without question,' said Brian Murphy, a partner at New York-based Frankfurt Kurnit Klein & Selz. 'It's given us an opportunity to take the expertise in the entertainment area and have those attorneys work closely with attorneys who've been working with brands for decades.'

"Linda Goldstein, chairwoman of the advertising, media and entertainment group and a partner in the New York office of Los Angeles-based Manatt, Phelps & Phillips, said that five years ago the firm handled few, if any, product placement deals. Now, about a half-dozen lawyers, split between the advertising group in New York and the entertainment group in Los Angeles, structure up to 25 deals a year."