Midterm not quite finished

Question #1: Interviewing is one of the fundamental skills that paralegals and legal assistants must master. Assume that you have been asked by an attorney at your law firm to train a new paralegal to be a proficient interviewer. In a comprehensive and detailed memorandum to your new colleague, provide the following information:

• Define interviewing in the legal context, discuss the types of legal interviews that a paralegal might do, explain the purposes of interviewing, and provide a detailed step-by-step explanation of the interviewing process;
  
• Explain in depth what skill a proficient interviewer must possess, and provide detailed strategies to help your colleague develop those skills;
  
• Provide detailed information that will assist your new co-worker become a superior interviewer (i.e. discuss ways to formulate questions, question types and why they are effective, ways to prepare for an interview, the interview environment, etc. ); and
  
• Share all additional knowledge, insight and suggestions that will assist your new colleague master interviewing.
  

  Be sure to define any key terms that you use that you use in your memorandum, and provide useful examples to illustrate your discussion. Include all statutory, case law, source citations and references.
  

  November 15, 2010
  

  
   

  Via Hand Delivery
  

  
   

  
   

  Snidley C. Whiplash Attorney
  

  450 North Avenue
  

  Battle Creek, Michigan 49017-3397
  

  
   

  Re: Interviewing for Paralegals
  

  
   

      Dear Mr. Whiplash:
  

  
   

      As you requested please find enclosed the following information on Interviewing for Paralegals for our office.
  

  
   

  Please review the assignment at your convenience and submit any and all corrections to me. I will then forward to all new paralegals on your staff.
  

  
   

  If any additional information is required I would be pleased if you would contact me at 269-580-8889 or by email at k0018598@kellogg.edu.
  

  
   

  
   

  Sincerely,
  

  
   

  
   

  ----------------------------------------------
  

       Paralegal Student ID # 7676    
  

  
   

  
   

  Interoffice Memorandum on Interviewing
  

  In the law there are at least four major types of interviews conducted
  

• Intake interview
  
• Initial client interview
  
• The follow up interview
  
• The field interview of someone other than the client
  

  Interviewing for a paralegal is to assist their attorney with the gathering of facts, proper interviewing can mean the difference of success and failure for the firm's clients.
  

  The purpose of the intake interview is to determine if our firm can accept the potential client by screening for ethics issues such as we have represented or talked to the opposing parties or if it is a type of case the firm handles and can we as a firm work with the type of person the client is i.e. angry or uncooperative and untrusting etc… and how knowledgeable the client is.
  

  If the intake interview does not shoot up any red flags the firm can decide to continue and using information from the intake interview to set up an Initial client interview where more in depth question will be asked, usually a check list of required information will be used as a start of the interviewing process and based on the answers and conversation with the client additional areas of inquiry will be explored. The lawyer will then take that information and possibly assign the paralegal with field investigation of the facts. Then using all the information gathered there maybe a follow up interview to clarify the facts
  

  
   

  
   

  
  

  
   

  We will discuss each one in detail starting with the intake interview. When a client first contacts the firm we must gather enough information to determine if the firm has a conflict of interest so there will not be an ethics problem with an existing or past client. Depending on the firm a receptionist or a Paralegal may collect the basic information such as address, telephone numbers, court location, any deadlines, and type of case such as divorce or criminal charges. Then an Intake memo will be drafted using a Heading and below that the memo will contain the name of who wrote the memo the supervisor's name, the date of when the interview was conducted and when the memo was written and all of the other data collected during the intake interview. Once the client has been vetted and there are no ethics or other problems an Initial Client interview will be conducted.
  

  "The initial client interview is critical because it sets the foundation for the entire litigation process." So it is important to work on your interviewing skills. In small and solo practices the Attorney may be the one that handles the initial client interview or has the paralegal assist. In larger firms or in more standard types of cases it may just be the paralegal to conduct the interview. If the duty falls to you the paralegal then you must use many diverse skills to get all of the pertinent facts. You should ask your lawyer if there are any specific areas of inquiry they require. It is important to group the facts in groups that are relevant to the legal question being asked. (Statsky, 2009)The way to decide how to do this is by the use of six different methods. These methods overlap and will be used when needed during the interview. Ask your lawyer for instructions each different lawyer may have different requirements but always remember it is the facts which are important and it is better to error on the side of caution and get too many facts then not enough. Write a check list; ask if one is already used by the office, some cases have many details required such as bankruptcy. But a check list is just a starting point and you should use the answers to it and common sense to formulate more questions as you interview, be flexible. Do some basic legal research into the subject before the interview you may turn up additional questions to ask.
  

  One of the most important methods is Fact Particularization: it is when you apply the 5 W's and the H to the fact who, what, where, when why and how. You must assume that you don't really know that much about each fact and ask questions from all angles to get closer to the truth. Ask also how the client feels about fact and also have them make analogies. When have you seen it done that way before? Or Did it sound just like a train? You should also ask for documents or anything that can back up what the client tells you or gives you a different perspective about the fact. Another avenue when asking about facts is to get the client to tell you how sure they are about the facts you can use a scale like they use in your doctors office 1-5, 5 being the worse pain you have ever felt to 1 no pain. Just convert it to only a guess to absolutely certain. When the client gives you a vague answer make sure to firm it up by using this technique or ask some other Corroborative question like "Was anybody else there to hear it?" If not make it plain in your notes that you need some other method to confirm that fact.
  

  There are different ways of asking questions that will get you a different type answer, here are a few different question types.
  

• Open ended: Why are you here today?, Tell me what happened? What would you like to happen? How can I help?
  
• Closed-ended questions: Was the bank open when you went inside? What is your date of birth? Were you driving? Do you own a car?
  
• Overview Questions: Please tell me the reason you are seeking a Bankruptcy? Please give me a brief explanation of the events leading up to this?
  
• Timeline questions: Please tell me what happened in the order that it happened. What happened next?
  
• Leading questions: You had the shotgun and he had the pistol, right? When you hit him he fell down?
  
• Corroborative questions: Do you have the cash register slip for that purchase? Is there store video of the shoplifter? Was anyone with you when it happened?
  
• Combination questions: Did you stop runaway or fall when hit? (Multiple choice) or Did you go to the meat counter and did you like their steak prices? (add on question)
  
• Wrap up questions: Is there anything else you would like to add? Or What else should I have asked?
  

  There are different times to use each type of question except during interviewing the Combination question is not a good idea because it can lead to confusion on the answerer's part.
  

  If a client is nervous as well as they might be if they have to consult a lawyer it can be sometimes reassuring to start the interview with close ended questions that the can answer easily like their name and birthdate etc… and once they feel more comfortable you can move on to more open ended questions then perhaps to Corroborative questions and go back and use fact Particularization to hone in on the answers you received.
  

  There a several more preliminary steps to take before the interview begins first how do you want you and the client to sit? If you sit higher and at the head of the table you take a position of dominance or control. What the client is facing is also important, having them facing a blank wall as opposed to a window or picture will help keep them focused on you and your questions. If it is at the desk you work at all files need to be put away and the computer screen can not have anything on it. You should not have conversations about any other clients while the client can hear and you should make sure that no one else not connected to the case can hear the client or you talking. When the client arrives you should be alerted so you can greet and take the client back to the interviewing area that you have already prepared the seating arrangement and have a pad and paper for the client to take notes if they want to. Make them comfortable and offer refreshments. You should have sent them a letter before the interview telling them what to bring and how to get to the office and how long it might take now is the time to go back over what you will be talking about the items requested and how long it might take. Make sure to tell the client you are not a lawyer and you can not give legal advice but you will forward any questions the client has to the lawyer and you will get back to them with the lawyers answers. Let them know what they say to you is confidential and refrain from using legal jargon such as attorney client privilege. They might not understand or have a false knowledge of from watching TV or movies. As you begin interviewing the client use attentive listening techniques such as leaning forward, using verbal clues like uh huh, yes I see. It is important for you to project calm assurance being sure of yourself helps the client to believe in your competence.
  

  Take notes, it shows you care about what they say, so be careful when you stop taking notes not to convey you don't care. Use the client's name, everybody's favorite sound is the sound of their own name and it helps build a personal connection. Paraphrase back what they tell you and have them check the accuracy so they can see how important it is and make sure you understand what they are trying to tell you. When one of their answers opens up a line of inquiry not covered in your prepared questions make sure to follow up on it, it shows you are not trying to just fit them in a preconceived one size fits all solution even if the case seems routine to you, it is not routine for your client. On the same point something not to do; don't finish their sentences for them, or act impatient with the speed that they answer your questions. Avoid interrupting unless absolutely necessary to clarify a point.
  

  Watch their body language to get clues to how they are reacting to your questions and use your own body language to convey messages to them; such as leaning back and putting your pencil down across your writing pad would be construed as disbelief. After you have completed your questions ask the client for a minute to review your notes carefully reread them and jot down any additional follow up questions you have to ask. When you have finished with those ask the client if there is anything else they needed to tell you. After that ask them if they have any questions for you, but be careful not to give legal advice on the based on the facts of the case. Thank them for there time, remember they are your client you owe your job to them. Let the client know the next steps in the case and when you will contacting them next. Make sure they have your contact information. As soon as you can, start writing the Memorandum while it is still fresh in your mind, do not wait till you can do research at least start and go back and fill in the research later. Make sure to also note the client the personality traits you observed during the interview and inform your lawyer in the memorandum Your interviewing skills will improve with practice. Ask your attorney any questions you have about the interview process. Keep your checklists and as you do more and more interviews keep refining them and comparing them with other Paralegals lists. Look for articles in paralegal newsletters and for continuing education seminars.
  

  
   

  Question #2: This question has three (3) parts, and requires you to provide comprehensive and detailed information!
  

  Part #1 – Describe in detail the generic federal court system in the United States. Discuss the structure of the court system, the levels of the courts, the names, locations, and the functions of each level of court in the system, characteristics of each level of the court in the system, responsibilities of each level of the court in the system, and any special or unique features of the various courts. You may attach a diagram, but use that as an illustration – a diagram alone is NOT a sufficient answer to this question.
  

  Part #2 – Describe in detail the federal court system in the Western part of Michigan (NOT the generic federal court system!). Discuss the structure of the court system, the levels of the courts, the names locations, and functions of each level of court in the system, characteristics of each level of court in the system, responsibilities of each level of court in the system, and any special or unique features of the various courts. You may refer to some of the information that you have already provided in part #1 of this question when appropriate. You may attach a diagram, but use that as an illustration – a diagram alone is NOT a sufficient answer to this question.
  

  
   

  PART #3 – Describe in detail the Michigan state court system in Calhoun County, Michigan ( NOT the federal court system!). Discuss the structure of the court system, the levels of the courts, the names, locations, and functions of each level of court in the system, characteristics of each level of court in the system, responsibilities of each level of court in the system, and any special or unique features of the various courts. You may attach a diagram, but use that as an illustration – a diagram alone is NOT a sufficient answer to this question.
  

  Generic Federal Court System
  

  The federal court system was enacted by the U.S. Constitution article III
  

  Article III
  

  The judicial power of the United States
  

  shall be vested in one supreme Court,
  

  and in such inferior Courts as the
  

  Congress may from time to time
  

  ordain and establish. The Judges,
  

  both of the supreme and inferior
  

  Courts, shall hold their Offices
  

  during good Behaviour, and shall,
  

  at stated Times, receive for their
  

  Services, a Compensation, which
  

  shall not be diminished during
  

  their Continuance in Office.
  

  The federal courts do not enforce the law they decide if it is constitutional or the intent of the law as written by the legislature. The federal judges are protected from the pressures of popular and political opinion by several rules the founding fathers set up one is that they are appointed for life and only can be removed by impeachment, death or retirement. Their pay can not be lowered while in office.
  

  Are federal system is setup with checks and balances to keep our government running smoothly and for the people. The court is affected in different ways by each of the other branches The Executive Branch; President and his cabinet, Attorney Generals office etc… The executive branch appoints the federal judges with the "advice and consent" of the Senate
  

  Congress decides how many judges there will be and where they will work congress also sets the budget for the federal courts. Congress also has the power to create federal courts other than the Supreme Court and to determine what types of cases the other courts can hear.
  

  The lowest Federal court is the Federal trial court. Trial courts are broken up into District Courts which is the "Principle court" which can hear most types of cases, it is a court of dual jurisdiction i.e. it can try criminal ( crimes against the people) i.e. the people v. John Doe or a Civil case John Doe v. Santa Claus (people v. people). There are also Trial specialty courts; each district has Bankruptcy court. The Federal District courts are finders of fact they may use a jury or have a bench trial. They hear testimony from witnesses and experts they use written documents and other evidence to prove or disapprove a case. All of what is put on the record in this level is what they have to use in the higher courts to decide appeals. However to be heard by the Federal trial court there are several requirements "diversity of citizenship" the litigants must be from different states or one of them from a different country also the amount in dispute must be greater than 75,000 dollars. It has to be an actual case or controversy not a hypothetical problem. If a civil case the person bringing the suit must actually have suffered a harm or damages (have standing) and the court must have legal way to remedy that harm if the constitution or federal statue do not give the judicial branch a specific power to correct a wrong they can not hear the case.
  

  The next level is the appeals court you have an automatic right to an appeal to the federal appeals court from federal trial court you must do so within 21 days of the signed judgment of the trial court. The court speaks through its written order not what it is verbally says. The appeals court can only look at the written record to decide if the trial court judge made an error. The Federal appeals court can decide to confirm the judgment of the trial court (agreeing with it) Remand it or send it back to the trial court with instructions to do something a different way and try again. Or overturn the judgment (reversing it). The appeals court consists of three judges or that sit En banc or all at once. If two out of three agree they write the majority opinion if you do not like that answer you can apply to the SUPREME COURT of the United States For a writ of certiorari. There are 9 justices on the Supreme Court and they use the rule of 4 to decide if the will hear your appellant case.
  

  So if 4 of them want to hear it they will grant you a writ certiorari. Less than one percent of cases are granted a writ. For the court to hear your case it needs to be a rule not reviewed before or new or novel application of the law or political like Gore v. Bush the presidential campaign with hanging chads and such. Or for two different appellant courts in different federal districts to have came up with a different answer to the same legal question. They have the same options and restrictions that the appellant court had but the Supreme Court is a court of last resort there is no higher court to hear an appeal.
  
  

  
   

  UNITED STATES SUPREME COURT
  

  
   

  
   

  U.S. Courts of Appeals
  

  12 Regional Circuit Courts of Appeals
  

  1 U.S. Court of Appeals for the Federal Circuit
  

  
   

  U.S. District Courts
  

  94 judicial districts
  

  U.S. Bankruptcy Courts
  

  U.S. Court of International Trade
  

  U.S. Court of Federal Claims (for suing the government)
  

  
   

  
   

  FEDERAL COURTS
  

  AND OTHER ENTITIES
  

  OUTSIDE THE
  

  JUDICIAL BRANCH
  

  Military Courts (trial and appellate)
  

  Court of Veterans Appeals
  

  U.S. Tax Court
  

  Federal administrative agencies and boards
  

  Western Michigan federal court system
  

  Court's Name	Western District of Michigan
  Court's Address	110 Michigan St., NW, Grand Rapids, MI 49503 (Headquarters) 229 Federal Bldg., Marquette, MI 49855 410 W. Michigan Ave., Kalamazoo, MI 49007 315 W. Allegan St., Lansing, MI 48933
  Court's Phone Number	(616) 456-2381 (Grand Rapids - Headquarters) (906) 226-2021 (Marquette) (269) 337-5706 (Kalamazoo) (517) 377-1559 (Lansing) ELECTRONIC FILING HELP DESK: (800) 290-2742 or (616) 456-2206
  Court's Email Address	General Questions: info@miwd.uscourts.gov Electronic Filing Questions: ecfhelp@miwd.uscourts.gov
  Court's Hours	Office Hours 8:30 a.m. - 4:30 p.m., Monday-Friday, except Federal Holidays Phone and ECF Help Desk hours 8:00 a.m. - 5:00 p.m., Monday-Friday, except Federal Holidays

  
   

  U.S. Court of appeals for the Sixth District
  

  Court Address:
  100 East Fifth Street
  540 Potter Stewart U.S. Courthouse
  Cincinnati, OH 45202
  

  Phone: (513) 564-7000
  

  
   

  Supreme Court of the United States
  

  
   

  
   

  The Federal trial court for the western part of Michigan is called the United States District court for the Western district of Michigan it has its headquarters in Grand Rapids and Court locations in Kalamazoo, Lansing and Marquette I have covered in the general court description what the court has jurisdiction over.
  

  If you appeal a judgment by the district court it will be handled by U.S. Court of appeals for the Sixth District. The Sixth district handles cases from several states which include Michigan, Kentucky, Ohio and Tennessee. The appeals court was founded by the Evart act in 1891 to replace the circuit courts that existed at the time it was then called the Circuit court of appeals but in 1948 the name was changed to the United States Court of Appeals for the Sixth Circuit. In some other Districts they do not have separate appeals courts for the Bankruptcy court but the Sixth district does. The court is held by statute in Cincinnati, OH
  

  If the case is appealed again they have to get permission to go to the Supreme Court of the United States please see the generic section for the details.
  

  
   

  
   

  
   

  State of Michigan Court system
  

  The District court is a court of general jurisdiction it handles civil cases person v. person and Criminal Cases the state or the people of v. person. Civil cases must be under 25,000 dollars and criminal case that involve less than year in jail. They also handle most of the traffic violations and land lord tenant disputes they have bench (the judge decides) and Jury trials The District court also has the Small claims court it handles civil cases less than 3,000 dollars. All criminal cases start in District court and that is where bail is set and they decide if the defendant will be charged with a felony or misdemeanor (cases where the accused, if found guilty, cannot be sentenced to more than one year in jail) if a felony the case is moved to the Circuit court. Our District court in Calhoun County is the 10^th district court of Michigan. District court judges are elected for a term of 6 years.
  

  37th Judicial Circuit Court
  

  Calhoun County constitutes the 37th Judicial Circuit and currently has four Circuit Judges. This is a court general jurisdiction like the district court but in civil cases the dollar amount must be over 25,000 dollars and in criminal cases it involves Felony charges ( go to prison, sentences longer than year) it also hears appeals from the district court and Probate court. Much like other appeals court it only looks at the written record when hearing these appeals. They also have Jury and bench trials. It has several divisions' the Family court which has jurisdiction on domestic relations child custody and mental health cases like guardianships and conservatorship. The family court does not use jury trials for domestic relations or adoptions; another division is the Probate court which handles wills and trusts
  

  The trial court to sue the State of Michigan is the COURT OF CLAIMS in the 30^th Circuit Court of Ingham County there are no jury trials and it is for claims over 1000 dollars against the State of Michigan.
  

  COURT OF APPEALS OF MICHIGAN
  

  Has four districts and 28 judges you have the automatic right to appeal from the Circuit Court or the Court Of Claims you must appeal within 21 days of the written judgment unless it has to do with parental rights you only have 14 days You may file at any of the four district courts. The appeals court only works from the previous courts record. You can appeal the decision from this court to the State. Or Federal Supreme court if you have a federal issue but only if the courts grants it.
  

   

  
   

  The Supreme Court of the State of Michigan
  

  Have 7 justices who are elected by a non partisan ballot. The justices consider applications to see what appeals they want to take, they use the rule of three to decide if they will take the case i.e. if three judges want to then they take the case it is the Court of last resort in State matters.
  

  
   

  
   

  
   

  
   

  Question #3: You have been invited to speak to a group of students enrolled in an "Introduction to Paralegalism" class at a local community college. These Students know very little about being a paralegal or legal assistant, and the instructor for the class has asked you to cover the following material for this eager group of students:
  

  • Define the terms "legal assistant" and "paralegal" and explain how / when each term should be used in Michigan;
    
  • Discuss in depth the importance of paralegal education and formal training, discuss the characteristics of reputable formal education programs, and explain to the students how they can research and locate a reputable educational programs;
    
  • Explain in detail the differences between registration, voluntary certification, and licensure/regulation, provide detailed information on the each of the various voluntary certification examinations- including their value to a paralegal, and discuss the status of licensure/regulation in Michigan;
    
  • Identify and discuss in depth the functions, role, and value of membership in each of the major paralegal professional organizations (ie NALS, NALA,NFPA, etc.), and provide contact information for each of these organizations;
    
  • Identify and explain in depth the role of the American Bar Association (ABA) and the Association of Paralegal Education (AAfPE) in the growth and development of the paralegal profession and quality paralegal education and training; and
    
  • Provide a comprehensive discussion of the various career opportunities and options for paralegals, including work sites, compensation, specialty areas of practice, etc.
    

  Question #5 – Explain why paralegals and legal assistants in Michigan must comply with all of the provisions of Michigan's Rules of Professional conduct for lawyers licensed to practice law in Michigan.
  

  Michigan paralegals are bound by the quoted following law MCL 600.916 since a paralegal is not a licensed attorney they would be in contempt of court if they gave legal advice or set fees for legal services ie the unauthorized practice of law.
  

  
   

  "REVISED JUDICATURE ACT OF 1961 (EXCERPT)
  Act 236 of 1961
  

  
  
  600.916 Unauthorized practice of law.
  

  Sec. 916.
  

  (1) A person shall not practice law or engage in the law business, shall not in any manner whatsoever lead others to believe that he or she is authorized to practice law or to engage in the law business, and shall not in any manner whatsoever represent or designate himself or herself as an attorney and counselor, attorney at law, or lawyer, unless the person is regularly licensed and authorized to practice law in this state. A person who violates this section is guilty of contempt of the supreme court and of the circuit court of the county in which the violation occurred, and upon conviction is punishable as provided by law. This section does not apply to a person who is duly licensed and authorized to practice law in another state while temporarily in this state and engaged in a particular matter.
  

  (2) A domestic violence victim advocate's assistance that is provided in accordance with section 2950c does not violate this section.
  

  
  History: 1961, Act 236, Eff. Jan. 1, 1963 ;-- Am. 2000, Act 112, Eff. July 1, 2000
  

  
   

  
   

  
   

  
  In the Michigan Rules of Professional Conduct paragraph (b) copied below it makes the lawyer responsible for the conduct of the non-lawyer
  

  
   

  
  (1.0, MRPC) Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
  

  With respect to a nonlawyer employed by or retained by or associated with a lawyer:
  

  (a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
  

  (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
  

  (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
  

  (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
  

  (2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable
  remedial action.
  

  Michigan Rules of Professional Conduct
  

  Comment - Rule 5.5
  

  [1] Limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. Paragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3. Likewise, it does not prohibit lawyers from providing professional advice and instruction to nonlawyers whose employment requires knowledge of law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.