How to Use (and Not Abuse) a Legal Assistant

What is a legal assistant?  Well, I found two definitions on the web:

“Legal assistants, also known as paralegals, are a distinguishable group of persons who assist attorneys in the delivery of legal services. Through formal education, training and experience, legal assistants have knowledge and expertise regarding the legal system and substantive and procedural law which qualify them to do work of a legal nature under the supervision of an attorney.”

 

“As defined by the National Federation of Paralegal Associations, paralegal is a person qualified through education, training or work experience to perform substantive legal work that requires knowledge of legal concepts and is customarily, but not exclusively, performed by a lawyer.”

 

To me, a legal assistant is a person who can assist me in the practice of law.  All too often, that means undertaking some of the “cookie-cutter” work that has to be done.  What it really means is freeing the attorney to do the things that only attorneys should do.

 

            Cookie-cutter may sound somewhat degrading, but I do not intend it to be that way, because it really means that a competent legal assistant can be handed, for instance, a new eviction case and told, “prep this,” and the assistant will:

None of this requires supervision, and it frees up the attorney for other things.  I call it cookie-cutter work, because the general shape of a landlord tenant case is fixed; the only variables are such things as the landlord’s name, the tenant’s name, the address, and the rent rate or the reason for eviction.  Every case is going to have a notice to quit, a summons, a complaint, a court date, a judgment.  Some, but not all, are going to have a writ of restitution.  What’s the two things that the legal assistant cannot do, in that list?  That’s right, sign the pleadings and attend the court hearing.

 

            This is generalizable to most types of law practices.  How many think that each case an attorney takes on is new, unique, and challenging?  Well, maybe for some lawyers, but not for my practice.  Sure, I have the occasional litigation file that walks in that is out of the ordinary, but the bulk of my practice, my bread and butter, are the same types of cases from a relatively few clients.  By analyzing the process for these cases and breaking them down into sequential steps, I can easily let my legal assistant handle those parts that do not need my direct attention and free me up for those that do.

 

Another example:  for about 5 years, I worked for a foreclosure mill, a firm called Shapiro & Alt.  We received about 120 to 150 new files each month.  About 80% were foreclosures, the remaining 20% were bankruptcy referrals, because if you start a foreclosure on someone’s home, a certain percentage will file bankruptcy to save the house.  At one point, I had 3 foreclosure assistants, a bankruptcy assistant, and an eviction assistant working under my supervision.  I had an office manager, a runner, and a boss who lived and worked full-time in Chicago, IL.  I was the sole full-time attorney responsible for about 1400 files open at any one time.  How did I manage?  We had some pretty detailed procedures in place.

 

Anyone know the process on foreclosure by advertisement?  The statutory process is:

What in that process HAS to be done by an attorney?  Trick question: NONE of it.  I actually had a mortgage company that does its own foreclosures.  They do not have an attorney do any of it.  They do have an attorney for those things an attorney MUST do; appear in court. 

 

There are some definite steps to be taken to process a foreclosure; here’s how it works:

 

The client sends us a file.  Content varied, but usually we got:

A copy of the mortgage

A copy of the note

A copy of any assignments of the mortgage

A printout showing the principal balance, the due date, the interest rate, any late charges, advances for taxes, and other sums owed

From that, our steps were to:

 

All right, I told you earlier that NONE of it required an attorney, but I will tell you now that I did two of these 20 steps; anyone want to guess which ones?

 

I reviewed the title work, and I reviewed the mortgage.  Why?  Because sometimes strange things show up in title.  There might be an IRS lien, which requires a special notice to the IRS.  There might be a Lis Pendens, which means you have to look at the court file and see what the case is all about.  There might be a missing assignment in the chain of title to the mortgage, and that has to be located and recorded.  There might be defects in the chain of title before the mortgagor ever bought it which could defeat his title and therefore your mortgage.  Some of these things we probably could have taught an assistant to catch, but we felt it was better overall for the attorney to review the title because you never know what might show up.

Why did we review the mortgage?  Because if the requirements of the mortgage regarding defaulting the mortgagor are not followed, the foreclosure is invalid and can be set aside.  Some require notice, some don’t.  Some say notice must be given 10 days, some 20, some 30.  Mortgages are pretty standardized, but the standards do change over the years.  I can tell you that, depending on which FNMA/FHLMC form was used, the default paragraph was either paragraph 10, 17, 18, or 21. 

 

The file, with the title work and a checklist on top, would be delivered to me by the processor.  It got to where I could scan a mortgage and the title work in less than a minute.  I checked off any problems.  If there were none, I never saw the file again.  If there were, the assistant would do what was checked and give back to me for verification.  The assistant can do EVERYTHING else, freeing me up for reviewing all those titles, covering the eviction hearings, and covering the bankruptcy hearings.

 

Bankruptcy files were the same way, compartmentalized and procedurized:

For New cases:

The only thing I did here was sign the proof of claim if there was no objection.  If the plan was objectionable, again I had a checklist and we had form pleadings into which the assistant could plug in the variables.

 

For Motions for relief from the stay

Here, I had a checklist on which I would fill in the parameters of the motion, and the processor did the rest.  I signed it, I attended the hearing.

 

Anyone been to a chapter 13 call?  Judge Shapero has a call on Tuesdays, Judge Brown on Wednesdays, and Judge Rhodes on Thursdays.  I don’t know what they’re going to do when the new judges take the bench; probably Mondays and Fridays.  There’s a hundred cases on the docket.  If you figure 1.5 debtors per file (some are single files, some are husband and wife), one debtor’s attorney, 1-2 creditor attorneys, and the trustee with his staff or 4-5, you’ve got a court room packed tighter than sardines in a can.  It’s a zoo.  One some days, I would have 8 to 10 cases with hearings.  I drew up a Chapter 13 Info Sheet with check boxes to tell me what was happening on the file:  were we objecting to confirmation and if so, why.  Was it a motion for relief from the stay and if so, why.  I had check boxes and blanks to fill in for the results of the hearing.  At the end of the day, when I got back to the office, I gave the files with the Info sheet to the processor, and he would know to draft a letter to the client with the results of the hearing and whether to have the courier get a copy of an order from the court.  With a well-trained processor, I could get file on the day of the hearing, knowing that the proof of claim, the obejction to confirmation, and/or the motion for relief were in the file, tabbed and indexed, with an Info Sheet filled out, and I could return the file to the processor at the end of the day and know that the work that did not specifically require my attention as an attorney would be taken care of.

 

That was a few years ago; Shapiro & Alt merged with another firm in 1997 and I went out on my own.  My practice has morphed some.  I still do evictions and foreclosure and bankruptcy, but not with the same volume.  Now, I have a much more litigation oriented practice, mainly quiet title actions.  There is still room for a legal assistant, although not FIVE assistants like before.

 

What can the legal assistant do in quiet title litigation?  Well,

 

I think you have a basic understanding of how I have used legal assistants over the years.  About the only thing that I do not routinely let my legal assistant do is to talk with clients and/or interview witnesses.  This is a personal idiosyncrasy;   I feel I have a much better handle on the facts of a case if I have talked to the witnesses directly rather than having reviewed a transcript or a legal assistant’s interview notes.  I prefer to have direct client contact for marketing reasons; clients are much more reassured when they are speaking directly to the person who is handling their legal work.  They want to know that the attorney is accessible.  I suppose if my practice grew substantially, or if I took on some complex litigation with hundreds of potential witnesses, I would let the legal assistant do more of this, but frankly, I like my practice where it is and have no interest in expanding.  Again, personal idiosyncrasy.

 

How not to abuse a legal assistant?  Do not ask them to do things that only lawyers can do.  A legal assistant/paralegal cannot give legal advice, represent a client in court, set a fee, or accept a case, which functions are generally considered the practice of law.

 

Someone comes into the office with a land contract that is in default.  There are two remedies:  forfeiture and foreclosure.  In fact, I have made up a sheet, mainly for marketing purposes, which explains the differences between the two processes.  My legal assistant can give the client a copy of the form.  He can explain any of the terms to the client.  He can take the basic information from the client and even prepare a spreadsheet which computes the current principal balance based upon the client’s payment records. He CANNOT tell the client which process is right for his circumstances; that is giving legal advice.

 

He can give the client a copy of my fee schedule.  He can explain what is included in the standard fee and what is not.  He CANNOT tell the client whether he will be billed the standard fee or a different fee.  That is setting a fee.

 

He can prepare a standard retainer agreement which has the basic client information on it. He can research in my client records whether we have a conflict with a current or former client.  He CANNOT tell the client that we will take his case. 

 

I have a huge trial; there are four boxes of pleadings, 16 witnesses, 10 exhibits and a power-point presentation.  The legal assistant can organize everything.  He can deliver all of it to court.  He can sit with me at the counsel table.  He can put the exhibits up on the easel.  He can run the powerpoint presentation.  He CANNOT address the judge or the jury.  That is representing a client in court.