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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Are you doing all you can taking a witness statement?

One of our favorite guest bloggers is back!
Barbara Haubrich-Hass, ACP/CAS on:

WITNESS STATEMENTS 

HaubrichBarbara

It is important to memorialize the sequence of events in any given incident.  One way to accomplish this is to obtain statements from the percipient witnesses.  Nailing down a witness’ version of how an incident occurred early in a case can be one of the most important components of a thorough investigation.  A paralegal should not determine which witness to statementize; that is a decision for the attorney to make.   It is also up to the attorney to decide who conducts the interview with the witness.  It is best if the attorney conducts the witness statement so that the attorney understands the facts of the case, obtains all of the information needed from the witness, and can evaluate the overall credibility of the witness. 

However, some attorneys have their paralegal conduct the witness statements, while other attorneys hire investigators to conduct the witness statements.  At a minimum, paralegals play a big role in locating the witnesses, setting up the interviews, and obtaining the physical evidence for the attorney to use to conduct the interviews.

In the pre-litigation stage of a case, an attorney cannot compel a witness to give a statement.  When a witness refuses to provide a statement, then the statement will have to wait until litigation has commenced.  The witness can then be compelled to testify at a deposition through the use of a deposition subpoena.

Interview A.         Preparing for the Interview

Knowing what information you want to obtain from the witness is the first step in preparing for the interview.  Prior to the interview, review the evidentiary documentation in the file so that you have an understanding of the dynamics of the case, and how the witness fits in with the case scenario.  It may be necessary to obtain additional documentary evidence before the witness statement is obtained.

B.         Types of Statements

Witness statements can be written or recorded.  A written statement is obtained in person as the questions and answers are written down by the interviewer.  When the statement is concluded, the statement is either provided in handwritten form to the witness to review and sign; or the statement is typed and then provided to the witness to review and sign.  Either way, before the witness dates and signs the statement, it is important to ask the witness to review the statement for any corrections. 

A recorded statement is obtained either in person, over the telephone, or by other audio or video means.  This method is particularly helpful in obtaining long distance witness statements that you otherwise may not be able to secure.  At the beginning and end of every recorded statement, it is extremely important for the interviewer to have the witness acknowledge that he or she understands that the statement is being recorded and to grant permission for the statement to be recorded. 

In order to lessen the likelihood that a witness statement may be discoverable in litigation, it is good practice to insert a sentence at the end of the written or recorded statement, as follows:

This witness statement was taken by an attorney.  It contains the responses of the witness to questions formulated by the attorney based upon the attorney’s legal analysis, and reflects the impressions, conclusions, opinions, legal research, and theories of the attorney. This document is protected by the attorney work product doctrine.

Types of Witnesses

For purposes of this article, an attorney is interested in obtaining statements from percipient witnesses (aka eye witnesses).  However, there are other types of witnesses, such as character witnesses, lay witnesses, and expert witnesses that will not be discussed in this article as those witnesses do not fundamentally fit the criteria of this article.

Within the scope of percipient witnesses, there are “friendly” witnesses and “hostile” witnesses.  A friendly witness is someone who is favorable to your side of the case and is a cooperative witness.  In contrast, a hostile witness is someone who is against your side of the case and is adverse to your client’s interests.  Generally, attorneys do not want to statementize hostile witnesses.

 Stayed tuned!  Tomorrow:  Comprehensive Interviewing Techniques

PS:  Don't forget to take the OLP Litigation Support Salary & Utilization Survey.  This highly sophisticated survey is full of valuable information for paralegals who are doing any kind of case management and using any kind of litigation support software such as Concordance, Summation, Relativity, Nuix, Trial Director, Sanction, CaseMap and more!

Find out information that usually, only your manager has access to.  It's free for those who participate and it takes 14 minutes to fill out.  Don't wait.  Get the results and make informed decisions about your career!  Use invitation code 2200.


"Mock trial helps students learn more about the legal system"

This most gratifying article in the Jackson Hole Star-Tribune details how Wyoming paralegal students are showing fifth-graders how the U.S. legal system works:

"With a polite but stern tone, fifth-grader Jacob Colman interrupted Robert Novak, reminding him to just answer yes or no.

"Dressed in a dark blue suit like a miniature lawyer, Colman again asked the question to Novak on the witness stand.

"'Well...,' Novak said.

"'Just answer yes or no please,' said Colman, 11, once again interrupting the adult.

"The exchange Thursday was part of a mock trial Casper College's paralegal department held with fifth-graders from St. Anthony's Tri-Parish School as part of a service learning project. The students from both schools, parents and faculty acted out the case in U.S. District Judge William Downes' courtroom after a semester's worth of preparation.

"'You really learn by teaching,' said Mary Kubichek, who has been organizing mock trials for more than 10 years as director of the college's paralegal program."


"Paralegal licensing is good news"

After a hard-fought legislative battle, independent paralegals in in Ontario will become a regulated profession on May 1. This Toronto Star article outlines why licensing is needed:

"In recent years, the need for regulating paralegals has been the subject of considerable comment by Ontario judges and in two Ontario government reports. The most recent comment occurred in a Superior Court decision of Justice Deena Baltman last October. It was published last month in the Ontario Reports.

"In December 2002, Pamela Elliot received an eviction notice from her landlord claiming rent arrears of $2,700. Shortly afterward, the Ontario Rental Housing Tribunal issued an eviction order against her.

"Elliot contacted Vince Chiarelli, a paralegal, to stop the landlord's eviction. He promised her in writing that for a fee of $1,200 plus expenses he could file an appeal to Divisional Court and obtain a stay which would 'prevent or significantly delay the eviction proceedings.'

[snip]

"Eventually, Elliot sued Chiarelli in Small Claims Court to recover the money she paid him, based on professional negligence, breach of contract and alleged violations of the Business Practices Act.

[snip]

"'As a legal service provider,' Justice Baltman wrote in her decision, 'Mr. Chiarelli had a duty to provide good advice. Instead, Mr. Chiarelli advised Ms. Elliot to pay him nearly $1,800 so that he could postpone her eviction by what he knew could only be a matter of weeks. That was bad advice.'"


"Sunshine and Judge Seidlin"

Have to point to this very smart blog post about Judge Seidlin, of "judging on TV" fame:

"In 1933, Supreme Court Justice Louis D. Brandeis advised, 'Sunlight is the greatest disinfectant.' True to this notion, Florida is known as the Sunshine State not only for its weather -- it has long been a leader in open government. But when it comes to cameras in the courtroom, does openness serve an injustice?

"After watching Judge Larry Seidlin's on-camera antics in the Anna Nicole Smith proceedings, Norm Pattis thinks so. At his blog Crime & Federalism, he says Seidlin singlehandedly rests the case against cameras in the courtroom. 'The judge sniveled and emoted like a pro se in traffic court for the cameras today, when he gave the lifeless body of Anna Nicole Smith [PDF] to the lawyer for her five-year-old daughter.'"

Highly recommend reading the entire post (& links)!


Jury Finds Paralegal's Sexual Harassment Claims True

Bad behavior from lawyers who have no excuse. But I've seen this kind of news before:

"A law firm specialising in sexual harassment cases has itself been proven to have practised sexual harassment and ordered to pay $368,000 to a Roseville woman who worked at the firm as a paralegal.

"The Martinez-Senftner Law Firm, Roseville, CA, handles a variety of civil and criminal work, including sexual harassment cases. The victim's identity has been withheld following the two week trial which found that the law firm should have known about the allegations but did nothing to stop them. The woman received $68,000 general damages and $300,000 punitive damages. The law firm was named in the suit along with Jim and Wayne Senftner, the law firm owner's husband and son."


Fulbright's Third Annual Litigation Trend Survey Findings

Very interesting survey about litigation trends in the U.S. Number of lawsuits...ouch!
"Here's a sample of the findings:
  • Large U.S. companies face an average of 305 pending lawsuits.
  • For the largest U.S. companies, those with $1 billion or more in annual gross revenue, the number of lawsuits soared to 556 cases, with an average of 50 new disputes emerging each year for close to half of them."
Tip of the hat to Law Librarian Blog for this info.

"How Many Lawyers Does It Take to Make You Sick?"

Yep, the answer to this question totally depends on the firm!

Plaintiff: Amy Seiler

Defendants: Harry J. Mulry Jr.; Gregory G. Shaub, doing business under the firm name Mulry & Shaub L.L.P.

Accusation: A paralegal toils for a small law firm and gets bouts of "stomach distress, headaches and disagreeable fits of temper." Oh, and don't forget those "digestive upsets."

"In a lawsuit [PDF] filed last week [11/16/2006] in Brooklyn Federal Court, Amy Seiler says her bosses at Mulry & Shaub in Port Washington negligently dragged their feet in hiring a replacement for an outgoing receptionist. And so for the next two months, Seiler was forced to work two jobs for the price of one."

Does this sound familiar to anyone out there? How would you have handled this situation?


CNN's Nancy Grace Sued Over 'Grilling' that 'Led to Suicide'

When does an aggressive interviewer go too far? Guess we'll find out with this wrongful death lawsuit:

"Relatives of a mother who committed suicide after CNN's Nancy Grace aggressively questioned her about the disappearance of her son sued the network and the talk-show host Tuesday, accusing Grace of pushing the woman over the edge.

"Melinda Duckett shot herself to death on Sept. 8, one day after taping a segment on Grace's CNN Headline News show in which Grace interrogated Duckett about her whereabouts on the August day that 2-year-old Trenton Duckett was reported missing. The network aired the segment after Melinda Duckett's death.

"Investigators have since named Melinda Duckett as the prime suspect in his disappearance."

CNN has mostly supported Grace; others perhaps not so much. What do you think?


"Game of 'Rock, Paper, Scissors' Ordered to Settle Dispute"

Now this is both funny & smart news!

"A federal judge, miffed at the inability of opposing attorneys to agree on even the slightest details of a lawsuit, ordered them to settle their latest dispute with a game of 'rock, paper, scissors.'"

"The argument was over a location to take the sworn statement of a witness in an insurance lawsuit.

"In an order signed Tuesday, U.S. District Judge Gregory Presnell scolded both sides and ordered them to meet at a neutral location at 4 p.m. June 30 to play a round of the hand-gesture game often used to settle childhood disputes. If they can't agree on the neutral location, he said, they'll play on the steps of the federal courthouse."