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Solution Manual for Introduction to Paralegalism: Perspectives, Problems and Skills, 8th Edition

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    i ’S MANUAL TO A CCOMPANY I NTRODUCTION TO P ARALEGALISM Perspectives, Problems, and Skills EIGHTH EDITION William P. Statsky SOLUTIONS GUIDE

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    ii Contents Course Planning .......................................................................................................................... iii Teaching in a Paralegal Curriculum ........................................................................................... vi The Skill of Studying .................................................................................................................. x Note Taking ................................................................................................................................ xi Basic Writing Skills .................................................................................................................... xi Chapter 1: Introduction to The Paralegal Career ........................................................................ 1 Chapter 2: Paralegal Employment .............................................................................................. 18 Chapter 3: On-the-Job Realities: The Assertive Paralegal ......................................................... 39 Chapter 4: The Regulation of Paralegals .................................................................................... 53 Chapter 5: Attorney Ethics and Paralegal Ethics........................................................................ 69 Chapter 6 Introduction to the Legal System ............................................................................... 88 Chapter 7: Introduction to Legal Analysis.................................................................................. 96 Chapter 8: Legal Interviewing ....................................................................................................114 Chapter 9: Investigation in a Law Office....................................................................................123 Chapter 10: Litigation Assistantship...........................................................................................135 Chapter 11: Legal Research ........................................................................................................149 Chapter 12: Legal Writing ..........................................................................................................158 Chapter 13: Computers in a Law Office .....................................................................................164 Chapter 14: Introduction to Law Office Administration ............................................................169 Chapter 15: Informal and Formal Administrative Advocacy .....................................................178 Review Questions and Answers..................................................................................................181 How to Study Review Questions and Answers ..........................................................................312

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    Introduction to Paralegalism: Perspectives, Problems, and Skills iii COURSE PLANNING Over the years, different teachers have used the various editions of the book in several ways: • As the text for a course that introduces the students to law, paralegal roles, ethics, and core paralegal skills • As the text for a separate course in legal ethics • As the text for a separate course in litigation • As the text for a separate course in legal research and writing The following comments are relevant to planning for any of these options. COMPETENCY-BASED LEGAL EDUCATION Course planning should begin at the end. When your students have completed this course: (1) What specific information do you want them to know about the paralegal career and about the legal system? (2) What specific skills do you want them to have at an introductory level? The answers to these two questions constitute the course competencies . A competency-based curriculum is simply one that identifies and targets knowledge and skill competencies at the outset of the course. Admittedly, the distinction between a knowledge competency and a skill competency is somewhat artificial. To demonstrate what you know is as much a skill as to draft a complaint. The knowledge competencies call for the skills of understanding and of organizing material in such a way that it can be communicated effectively to others. Yet for planning purposes, it is useful to separate knowledge from skill, not because they are independent entities, but because the separation can help us as teachers to conceptualize a course into building blocks. Knowledge Competencies The answer to the first question (What specific information do you want the students to know about the paralegal career and about the legal system?) identifies the knowledge or informational competencies of the course. This knowledge or information falls into two categories: • That which the students must understand and give back to you in examinations, e.g., the basic ethical rules governing paralegals • That to which you simply want to expose the students without requiring that they memorize it or be tested on it, e.g., the names of local paralegal organizations As teachers, we sometimes blur this distinction, or we don’t make the distinction until we finally sit down to write an examination. It is recommended that the distinction be made at the beginning of the course. The chapters of Introduction to Paralegalism contain a great deal of information. No doubt you will want to supplement this information from your own experience and research. How much of this information do you want the students to know by the end of the course? What information do you simply want to expose them to? Consider preparing a detailed

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    iv Introduction to Paralegalism: Perspectives, Problems, and Skills syllabus in which you identify what information the students will be expected to know after studying each chapter or segment of the course. Here are some examples of information that can be the basis of knowledge competencies in the course: • Any of the key terms that follow every chapter in the book and that are defined in the margin and in the glossary • The vocabulary of litigation and of our legal system (see Chapter 10 in this instructor’s manual) • The vocabulary and abbreviations of legal research (see Exhibits 11-1 and 11-2 in Chapter 11) Methods will be suggested later on covering this material in class. It is recommended that you encourage the students to compile terminology/vocabulary lists on the material that they must know. The first step in mastering the knowledge competencies is to collect definitions through designated readings in the assigned text. The sooner they start, the better. Some end-of-chapter assignments focus on definitions. See also the section on definitions in “How to Study Law,” printed at the beginning of the book. Skill Competencies The answer to the second question (What specific skills do you want the students to have at an introductory level?) leads to the skill competencies of the course. Answering this question enables you to identify the specific tasks you want the students to be able to perform according to predetermined standards. The book covers a number of these tasks at an introductory level, e.g., legal analysis, interviewing, investigation, digesting, and legal research. Since there are many more skills covered in the book than you will be able to teach in an introductory course, there are a number of different ways in which you can cover skills in the course: 1. Talk about the skills in class, and the students read some materials on them. 2. Do everything mentioned in (1), above, plus engage the students in exercises on the skills, e.g., writing exercises, group problem solving in class, role playing, etc. 3. Do everything mentioned in (1) and (2), above, plus require as a condition of passing the course that the students demonstrate proficiency in the skills according to standards of performance that you identify. For these skills, the students should be given a limited number of times to redo the task involved until high professional standards are met. Under the first approach, you can cover many skills in the course. You will cover fewer under the second approach, and fewer still under the third. The following is a list of some of the skills that could be covered in the course: • Break a rule into its elements (Chapter 7) • Phrase legal issues (Chapter 7) • Brief a case (Chapter 7) • Apply a case (Chapter 7) • Prepare an intake memo following a client interview (Chapter 8)

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    v • Take a witness statement (Chapter 9) • Draft a complaint (Chapter 10) • Draft a set of interrogatories (Chapter 10) • Digest discovery documents (Chapter 10) • Research a problem in a traditional library (Chapter 11) • Research a problem online (Chapter 13) • Write a memorandum containing legal analysis (Chapters 7 and 12) Later in this instructor’s manual, other skills will be mentioned along with suggestions on how to cover them in the course. Tell the students that they are about to enter a career that requires high standards of performance. A minimally acceptable document is not good enough: skilled attorneys constantly redo or redraft work products until they are done properly. This needs to be said to the students over and over. Yet they are unlikely to internalize this reality unless you force them through a rewrite process. It is important that you ask them to do things over—to redo them—until standards are met. This could be done for one or two of the skills mentioned above for the course. There is considerable educational value in making the students feel what high standards mean through such a process. To be sure, you cannot ask for a rewriting of everything. You need to select certain work products and stand by your announcement that a C paper (and maybe even a B– paper) is not good enough. Resources on Competency-Based Education • nces.ed.gov/Pubsearch/pubsinfo.asp?pubid=2002159 • ceph.org/assets/Competencies_TA.pdf • en.wikipedia.org/wiki/Competency-based_learning TEACHING IN A PARALEGAL CURRICULUM In this section of the instructor’s manual, we present some general observations on the art of teaching an introduction course, or indeed, any course. Compare these notes with your own instincts and experiences. In almost every course, a vast amount of material is presented to the student. As teachers, we constantly wonder: How much do they actually absorb or use ? The teaching/learning experience can involve different levels of the senses: reading, listening, discussing, etc. The following text presents one suggestion on the impact of this variety. How We Learn Students learn , retain , and use : • 10 percent of what they READ • 20 percent of what they HEAR • 30 percent of what they SEE • 50 percent of what they both SEE and HEAR Introduction to Paralegalism: Perspectives, Problems, and Skills

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    Introduction to Paralegalism: Perspectives, Problems, and Skills • 70 percent of what they DISCUSS with others • 95 percent of what they are given the opportunity to TEACH someone else See Take Charge of Your Training Room (from Marie Wallace), Ellen Callinan, editor, 3 Perspectives 8, 9 (Fall 1994). Do you think these percentages are accurate? Of course, it is difficult, and perhaps impossible, to know for sure. Mathematical information is always easy to attack. But there certainly is a ring of truth to this hierarchy. It gives us something to think about as we plan our courses. Characteristics of a Good Paralegal Teacher Good paralegal teachers are logical, organized, alert, concrete, practical, fair, sensitive, secure, and effective. ■ A logical teacher: • Knows that an understanding of a particular topic usually presupposes an understanding of several subtopics • Will not try to cover a topic until its subtopics have been covered ■ An organized teacher: • Starts on time and ends on time • Fills each class session • Has a plan for the orderly presentation of topics during the class • Gives the students an overview of the topics that will be covered • When presenting a list, numbers the items in the list (“There are four main kinds of …”) and refers to the numbers during the lecture (“First …, second …, third …, etc.”), at regular intervals • Summarizes material covered ■ An alert teacher: • Makes eye contact with the students • Does not lecture to the back wall • Does not assume that the students fully understand something simply because it was covered earlier in this course and/or in other courses • Will try to reinforce topics covered earlier before introducing new related topics • Never assumes that the students understand something simply because they are silent when the teacher asks, “Do you have any questions?” following a lecture or a reading assignment ■ A concrete teacher: • Avoids the law school professor’s habit of asking questions that are never answered in the course • Gives definitions of all major black-letter principles mentioned in a lecture, even if the definitions are spelled out in the textbook vi

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    Introduction to Paralegalism: Perspectives, Problems, and Skills • Gives examples of these definitions and knows the power of well-placed “war stories” to illustrate the definitions • Repeats the definitions ■ A practical teacher: • Stresses the real world rather than solely the world of theory • Lets the students know what they can expect when employed as a paralegal ■ A fair teacher: • Covers (in class) every topic or theme that the exam will cover • Explains how the students should do the assignments and provides examples of what is wanted in the assignments • Understands that the students are not attorneys and may need considerable help in completing some of the assignments, particularly the skills assignments • Does not leave the students to wonder what the teacher’s standards of evaluation will be (explanations through examples are given on when an assignment answer or an exam answer will earn an A grade, a B grade, etc.) • Does not let particular students dominate the class discussion ■ A sensitive teacher: • Avoids the use of he, him, man , etc., in examples that are meant to refer to both sexes • Avoids examples that tend to reinforce stereotypes of any group in society • Never makes fun of a student, even if the student invites ridicule ■ A secure teacher: • Is not afraid of asking the students about the weak spots in his or her teaching and of taking steps to overcome these weaknesses • Is always looking for ways to improve as a teacher ■ An effective teacher: • Communicates a sense of enthusiasm about the subject matter of the course • Communicates a sense of enthusiasm about being with these particular students • Is obviously prepared for each class session What Irritates Students about Teachers • Monotone delivery • Too many digressions • Speaking too fast • Rambling • Disorganization • Condescending attitude toward students (treats them like children) • Thinking his or her (the teacher’s) point of view is always correct • Keeps class beyond the end of session vii

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    Introduction to Paralegalism: Perspectives, Problems, and Skills • Arrives late for class • Forgets that students are also taking other classes What Irritates Teachers about Students • Talking during class • Sleeping during class • Chewing gum, eating, drinking noisily • Surfing the Internet or texting during class • Being late • Cutting class • Acting bored or apathetic • Not paying attention • Being unprepared • Creating disturbances Sometimes the behavior of students and of faculty becomes circular, with each contributing to the undesirable response of the other. Example: students yawn, gaze around the room, and otherwise look bored. The instructor reads this behavior as students not caring and concludes, “If they’re not interested, why should I try to be interesting? I’ll just do it and get it over with.” So, there’s nothing but lecture and endless instructor talk, and more students get bored and yawn and gaze around. See Drew Appleby, Faculty and Student Perceptions of Irritating Behaviors in the College Classroom, Journal of Staff, Program & Organization Development , 41–46 (Spring 1990); 4 The Teaching Professor 1 (October 1990). Common Errors Teachers Make in How They Ask Questions in Class • Asking too many questions at once • Asking questions of the students but answering them yourself • Asking questions only of the brightest or most likeable students • Asking difficult questions too early in the class session and/or in the course • Always asking the same types of questions • Asking questions in a threatening way • Not indicating a change in the type of question • Not using probing questions • Not correcting wrong answers given by students • Ignoring answers • Failing to build on answers See G. Brown & M. Atkins, Effective Teaching in Higher Education 73 (Methuen, 1988); 4 The Teaching Professor 6 (October 1990). viii

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    ix Resources On Effective Teaching • www.fau.edu/ctl/EffectiveTeachingStrategies.php • www.facultyfocus.com/topic/articles/effective-teaching-strategies • serc.carleton.edu/NAGTWorkshops/coursedesign/tutorial/strategies.html • www.aft.org/pdfs/americaneducator/spring2012/Rosenshine.pdf THE SKILL OF STUDYING Students want to know the law! They insist on it. Ironically, however, the most valuable thing you can teach them about the law is how to study it. The techniques of learning are critical in school and on the job. Frequently, a central concern of a paralegal faced with a new task on the job is as follows: How do I handle this? I never covered this in school. I’ve never had an assignment like this before. What do I do? This paralegal obviously needs on-the-job learning skills. Arguably, the most effective paralegals in the country are those who are not intimidated by what they do not know—because they know how to go out and obtain what they need. In short, the most effective paralegals are the ones with the most effective learning skills. This is the theme of the “How to Study Law” material printed in the textbook just before Chapter 1 begins. If learning skills are so important, why are they rarely, if ever, taught? (Have you ever heard of a course on studying?) The topic is considered too abstract. Teachers prefer to go right to the meaty aspects of a course such as how to incorporate a business, how to draft an order to show cause, or how to file a challenge to a will. Study tips are occasionally provided in an orientation or in the first class of a course. But there is usually no systematic guidance on studying. Teachers usually act on the assumption that students already know how to study. It is admittedly difficult to teach someone to study, or more to the point, to teach someone to increase the effectiveness of his or her study techniques. Points that can be made in a lecture about studying include: • Successful attorneys and paralegals consciously or unconsciously are perpetual students. • No attorney or paralegal has ever been graduated from school knowing all the law. Every student should be told to read and reread “How to Study Law” at the beginning of Introduction to Paralegalism before Chapter 1. Outside of class, try to concentrate your attention on selected students who may have developed weak study habits. Ask the class to identify what it thinks are, or will probably be, the most difficult aspects of studying law. Ask for individual volunteers to make suggestions. Then have a general discussion on the suggestions. Who agrees or disagrees with a point made? How does the class think a particular problem of studying can be handled? What ideas does the class have to overcome the interference with studying that a student has identified? A class discussion can be very helpful in emphasizing and adding to the guidelines outlined in “How to Study Law.” The goal is to raise the consciousness of the students about the process of studying. Bring the topic out of the background. Involve the students in an analysis of the process of studying. A lot Introduction to Paralegalism: Perspectives, Problems, and Skills

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    Introduction to Paralegalism: Perspectives, Problems, and Skills can be accomplished simply by making the students aware of the need for improvement. It’s not enough simply to say, “Be motivated” or “You’re going to have to be responsible.” These admonitions are, of course, true, but some concrete guidance in the critical but elusive arena of studying should also be provided. NOTE TAKING Because note taking is so critical to the practice and study of law, you might try an experiment. Have everyone watch a thirty-minute news program and take detailed notes. Everyone should watch the same program, but nobody should tape it (except perhaps the teacher). In the next scheduled class following the news program, go over some of the fine details mentioned in the broadcast, e.g., names, dates, or what someone was wearing during an interview. Have a mock contest. Allow every student to ask the rest of the class a factual question based on the program. See how many of the other class members can answer the question solely from their notes on the program. A good question is an extremely narrow one, e.g., how many people were in the room when the mayor was interviewed for 20 seconds on the proposed highway construction? BASIC WRITING SKILLS Finally, a word about writing—not memo or brief writing, not contract drafting, but the much more mundane and perhaps unpleasant topics of spelling, punctuation, sentence structure, and paragraph structure. The legal profession is finally realizing that serious deficiencies exist in this realm of writing for many law students and hence for many practicing attorneys. Some large law firms, for example, have hired part-time English teachers. A recent popular column in the magazine The Practical Lawyer is called “The Grammatical Lawyer.” It covers topics such as the distinction between that and which in clauses. A comparable level of concern has arguably not occurred in paralegalism. Most teachers of paralegal courses understandably take the position that it is someone else’s responsibility to worry about spelling and grammar. Unfortunately, students can spend hundreds of hours in classes where the topic of basic writing is never mentioned. They write scores of papers (exam answers or class assignments) in which the topic is given minimal or no attention. Consequently, the students are left with the impression that they do not have spelling and grammar problems. And some don’t. Many students, however, face disaster when they start writing cover letters and résumés and when they start submitting written work products on the job. The proverbial ton of bricks awaits the student who does not realize, for example, that the following words are incorrectly spelled: accomodate, forseeable, and goverment . What should a conscientious teacher do? You can’t abandon your syllabus; you can’t turn your course into a grammar class. But you can at least do the following: • Stress the significance of spelling and grammar. • Regularly point out writing lapses in papers that are submitted in your course. • Ask other teachers in the program to do the same. x

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    Introduction to Paralegalism: Perspectives, Problems, and Skills • Insist, whenever possible, on rewriting that corrects the lapses emphasized in the guidelines on spelling and grammar in the “How to Study Law” section of Introduction to Paralegalism . Finally, there are core writing assignments at the end of each chapter that cover both basic writing skills and legal writing. Their importance should be emphasized. xi

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    1 CHAPTER ONE Introduction to the Paralegal Career 1. Overview 2. Two Truths and a Lie 3. Precourse Surveys 4. Can You Follow Directions? 5. Identifying Course Requirements 6. Realities: Becoming a Paralegal in Today’s Market 7. Information versus Themes 8. An Idea for a Final Exam Question 9. Organize a Paralegal Association 10. The Major Players 11. Websites of the National Paralegal Associations 12. Local Resources and Events 13. “Day in the Life Of” 14. Law and Lawyers in the Media 15. Paralegals in the Media 16. What’s a Paralegal? 17. Are We a Profession? 18. STP: Surviving the Plunge 19. Lawyer Bashing 20. Films with Attorney Themes 21. Introduction to the Assignments 22. Assignment 1.1 23. Assignment 1.2 24. Assignment 1.3 25. Assignment 1.4 26. Assignment 1.5 27. Assignment 1.6 28. Assignment 1.7 29. Assignment 1.8 30. Assignment 1.9 31. Assignment 1.10 32. Assignment 15.7 1. O VERVIEW Chapter 1 serves as an orientation to the course and to the entire paralegal field. The chapter: • Identifies the major players in the creation and further development of the field • Answers some of the most commonly asked questions about paralegals • Provides a historical overview of paralegals

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    2 Chapter 1 Introduction to the Paralegal Career In the following pages, you will find a series of class ideas you may want to consider in teaching Chapter 1 and other aspects of the course. Some of these ideas overlap. They are not presented in a suggested order; they are simply a potpourri of ideas, some of which may be helpful to you as you prepare your lectures for Chapter 1 and later chapters. 2. T WO T RUTHS AND A L IE The exercise “Two Truths and a Lie” can be useful to learn more about the students, to have them learn more about each other, and to start encouraging them to participate in class. Here is how the exercise works. • Tell the class that they should identify three facts about themselves that will help introduce them to the rest of the class. • Two of the facts will be true, and one will be false. • After each student lists his or her three facts, the rest of the class will vote on which fact is the lie. You should also join the fray. Tell three facts about yourself and let the students vote on which fact is the lie. Here is how one teacher describes the value of this exercise: “As a result of this exercise, the students are immediately interested. I learn things about them that might not otherwise come up, so I can connect with them. Because I [now] know unusual things about them, I learn their names more quickly and can establish interest in them as individuals, which is conducive to a good learning environment” (Gail Hammer, Introductions , The Law Teacher, p. 5 [Spring, 2004]). For more on the exercise, type “two truths and a lie” in Google, Bing, or Yahoo. 3. P RECOURSE S URVEYS Another idea for obtaining information about the students is to give them a short survey that will cover their present frame of mind. Why have they decided to enter this field? What prior experience have they had? What are their expectations? The director of the paralegal program may know the answers to many or all of these questions, but the teacher of the introductory course may not. You should consider using the following Precourse Survey or a similar form to obtain such information. If you use this form, photocopy the questions (a through g) and ask the students to fill out the form during the first class. Or ask them to fill it out at home and hand it in to you at the beginning of the second class. Precourse Survey To help us learn more about you, please answer the following questions: a. Describe your prior work experiences with attorneys, if any. (continued)

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    Introduction to Paralegalism: Perspectives, Problems, and Skills 3 b. What is your definition of a paralegal? c. Describe what you hope to be doing in your career in ten years. d. When this course is over, what do you hope to have learned or accomplished? e. List the main doubts or questions that you have about the paralegal field . f. Describe what you think the relationship between a paralegal and an attorney should be. g. What do you think of the current level of lawyer bashing in the media? ______________________________________________________________________________ Use the information from this survey to try to identify patterns of information about the students: • What are their major misconceptions about paralegals? • Is there a disparity of work experience among your students? A similarity? • What can you tell about their writing ability from the brief answers provided on the form? • What about their ability to follow instructions? Have they answered the questions that were asked? You may learn that some of the students have misinformation about the course and about the paralegal field. This might be quickly cleared up in your introductory lectures. Other data that

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    4 Chapter 1 Introduction to the Paralegal Career you learn from or about the students may call for more drastic steps, e.g., splitting up the class into sections or arranging counseling sessions with individual students. Here is another Precourse Survey form for your consideration. Using a somewhat different format, this survey more directly addresses some of the big issues in paralegalism. Asking the students to fill it out and then briefly discussing it could serve as a preview of what is to come in the remainder of the course. You might want to consider giving this survey twice: once at the beginning of the course and again at the end. Precourse Survey Read each statement and circle your reaction to it. a. Paralegals should be licensed so that they can deliver legal services directly to the public, independent of attorneys. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree Not Sure b. All paralegals should be required to take and pass an examination on state and federal law. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree Not Sure c. The unfavorable image that the public has of attorneys is unfair to attorneys. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree Not Sure d. A paralegal should be allowed to tell his or her spouse about cases the paralegal is working on at the office. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree Not Sure e. Finding the paralegal job you want will be relatively easy. Strongly Agree Somewhat Agree Somewhat Disagree Strongly Disagree Not Sure ______________________________________________________________________________ 4. C AN Y OU F OLLOW D IRECTIONS ? At the beginning of Chapter 1, the students are asked, “Do you know what time it is?” The exercise is designed to teach an important lesson about precision in the law. A comparable exercise is called How Well Can You Follow Directions? To find the instructions for this exercise, type “Can You Follow Directions?” in Google, Bing, or Yahoo. Photocopy and distribute the one-page instruction sheet. Give the students three minutes to complete the exercise. As you will see, the first instruction is: “1. Read everything carefully before doing anything.” Most students read this instruction very casually—in fact, too casually. Failure to follow instruction 1 causes lots of trouble, but the students won’t realize this until they complete the exercise.

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