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Paralegals can’t get away from the fact that everything we do involves communication. Whether it is communicating with a client, the court, a judge or even the local copy shop, we need to know how to communicate.  Paralegals are called on to be the liaison between clients, witnesses, experts and counsel.  Strong communication and writing skills are essential in fulfilling this role.  This is not something that is easily taught and/or learned in a classroom.  For most of us, this is something we learn over time and/or while on the job.  As liaison, you must thoroughly understand the legal concepts of confidential communications, work-product and conflicts of interest.  You must also understand the dangers of giving legal advice which is often sought.    


A.        Clients – Communication, Correspondence and Guidance


1.         Communication is the process of exchanging information and ideas.  It is the activity of communicating, activity of conveying information, something that is communicated by, or to, or between people or groups - a connection allowing access between persons or places.  Here are some rules of effective communication:  clarify your ideas before you communicate; identify and examine the true purpose of each communication; follow up your communication; be sure your actions mirror and support your communication; be mindful of overtones and use your time wisely.  Keep in mind the level of communication.  Do not give legal advice in a client communication.  If you relay legal advice to a client, be sure your communication indicates the advice is from the attorney.  Understand attorney work-product doctrine.  Be mindful of potential conflicts of interest.  Educate yourself on concepts of confidential communications.  Do not predict the outcome of the client matter to a client.   Here are three (3) ways a paralegal is often utilized to communicate with clients.


Client Interview:  Your role as a paralegal may be to conduct client interviews.  The general purposes of the client interview are to determine facts, to identify evidence, to locate leads for additional information, to assess damages and to evaluate the client as a witness.  A client interview may have additional specific purposes.  Determine the purpose of the interview.  Communicate that purpose both to the attorney before the interview and to the client during the interview.  Once the goals are set, prepare to conduct the interview and accomplish those goals.  The purpose of the prospective client interview is to determine the prospective client’s needs and to obtain facts and information which will assist the lawyer in determining whether to offer legal representation.  In addition, during the course of the client interview, you should sort out facts and determine the source, i.e. personal knowledge or otherwise develop leads, identify physical evidence and evaluate potential remedies.  Your role in the client interview will depend on the practice area, your experience and skill level, and the attorney’s practice habits.  You may be asked to conduct the interview alone or to assist the attorney in conducting the interview. 


Prepare for the interview:  Research the facts and the law.  Read the file, including correspondence and client documents.  Prepare a chronology and/or cast of characters to assist you in grasping the facts of the case.  Understand the legal issues of the case.  Review the appropriate statutes, case law, etc.  Prepare the interview site.  The atmosphere must be professional and confidential.  If possible, arrange to conduct the interview in a conference room to avoid interruptions and to maintain a sense of confidentiality.  Make sure materials related to other cases are not in this client’s view.  Arrange to hold all calls.  Prepare an outline for the interview.  Determine what types of documents you would like the client to bring to the interview.  Communicate your document wish list to the client, along with confirmation of the time, date and location of the interview.  If there is time, follow any verbal communication with written communication.  Arrange for and anticipate a client’s special needs, if any.


Conduct the interview:  To conduct an effective interview, you must immediately gain the trust of the client and understand the client’s situation.  Although every interview is unique, all clients have problems and are probably worried or upset over the circumstances surrounding the lawyer’s representation.  Approach each interview with the understanding the client is in a crisis or stressful situation.  Put the client at ease by conducting the interview in a confidential and comfortable environment.  Eliminate any behavior that may be considered pressure. For example, avoid the traditional seating arrangement, in which the paralegal sits behind a desk with the client on the other side, reinforcing the authority image.  Instead, arrange the seats “catty corner” using an end table or smaller desk.  Act relaxed, not nervous.  Maintain eye contact. Watch for facial and body language.  Maintain a sincere, interested attitude.  Having the ability to listen is essential to effective interviewing.  Listening is not only hearing.  Effective listeners work at listening, resist distractions and judge content.  Effective listeners interpret, follow body language, paraphrase to check for understanding and do not let past experience, bias, expectation of what will be said or attitude distract them from listening. Let the client know you are on his or her side.  Be thorough, leaving the impression no stone has been left unturned and you will always be accessible.  Work to have the client place confidence in your ability.  During the course of the interview, determine the client’s needs.  What does the client expect, want or need?  What types of documents are in the client’s possession or control related to the matter at hand?  How many documents are there?  Where are the documents located?  If the documents are voluminous, determine the personnel resources of the client.  How can the documents be copied?  Are there personnel to assist in the collection of documents?  Communication is a two-way street.  You must understand the client, and the client must understand you.  Modify your vocabulary to match the educational background of the client.  Avoid legal jargon.  Be alert for signals that the client does not understand something.  If you do not understand industry terminology, ask questions.  An interview should be conversational, with the client interviewee at ease.  Maintain eye contact with the client as much as possible during the interview.  Avoid distractions.  While note taking may be a distraction in the course of the interview, you must take notes, so do not be afraid to take outline form or shorthand notes using abbreviations.  Fill in the details immediately following the interview.  Use ice-braking techniques to put the client at ease and conduct an effective interview.  Offer the client a beverage. Talk “small talk” on the way to the conference room or location of the interview.  Do not discuss case matters in the hallway or restrooms - this gives the appearance of a lack of confidentiality or professionalism.  To get the client talking and more relaxed, begin the interview with preliminary data and routine information such as addresses, telephone numbers, employment and educational information.  State the purpose of the interview.  Begin the body of the interview with a narrative.  Ask open-ended questions to encourage the client to narrate his or her story.  Narrative questions begin with “Tell me about…”  Obtain details later.  An interview may be more productive after the client has been allowed to say what he or she wants to say.  Listen and watch while you interview.  How is the client reacting to your questions?  Listen for hints or leads to other information.  Be flexible, not tied to your outline.  Do not ask difficult questions at the beginning of the interview.  Do not alienate the client with blunt, direct questions.  Avoid suggesting answers, ask non-leading questions such as who, what, when, how and where.  Follow up on details after the narrative has been told.  To insure the client remains at ease during the interview, ask “why” questions carefully.  “Why” questions sometimes evoke defensiveness.  Rather than “why” ask “what were your reasons?”  Focus on only one issue per question.    As you ask questions, be supportive.  Nod your head.  Paraphrase the client’s responses from time to time to check for understanding.  Explore judgment questions, such as time and distance, so that judgment statements do not trap the client.  Role-play time and distance to insure the accuracy of the statements.  Taking accurate notes is essential for an effective interview.  Any discussions of fees (i.e. trust account and retainer) should be discussed with the attorney. Have the client execute any authorizations (medical, tax, employer) at the interview and explain why you want these items.


Following the interview:  Immediately after the interview, prepare a detailed summary memorandum.  The summary memorandum must reflect all relevant details, including the date and time of the interview, documents collected, witness names, addresses and telephone numbers.  It must also contain information on damages, detailed information concerning the client’s knowledge of the facts related to the matter, leads to additional information and a to-do list that describes documents to be collected and investigation to perform.  The communication with the client doesn’t end after the interview.  You will need to follow up on any requests made during the interview.

Discovery:  A paralegal will be called on to assist the client in answering discovery (interrogatories, request for production of documents, requests for admissions, etc.)  Good lines of communication are needed in order to obtain relevant information in order to prepare substantial responses to all discovery requests.  All discovery requests received should be copied and sent to the client for only their review at this point.  You should then go through the discovery requests and prepare draft responses based on information in the file.  Once complete, contact the client to obtain any additional, more specific and/or updated information in order to complete any incomplete responses.  Inform the client you have prepared draft responses which will then be provided to the attorney to review and make further revisions.  Advise the client you will be sending them a copy of the draft answers/responses which they will need to review and confirm all information is correct.  You will need to answer any questions the client may have about a particular way a response was prepared, the style and/or the format of the answers/responses.  Ask the client to execute the verification/certification and send back so the answers/responses can be finalized and sent to the other side so the litigation can proceed.


Paralegals also play a big role in coordinating the client’s deposition.  You will need to again answer any questions the client may have about what a deposition is, the purpose of a deposition and types of questions ordinarily asked during a deposition.  If a client has never been deposed, you need to discuss in detail the process of a deposition so they are better prepared and more relaxed.  You will have to coordinate the deposition preparation meeting between the client and attorney.  Normally a meeting a day or two before the deposition works best to keep the preparation fresh in the client’s mind.  If too much time passes between the preparation and the deposition, the client may forget much of what was discussed during the meeting.  Once the deposition and preparation meetings are scheduled, be sure to confirm in writing the date, time, location and provide directions.  It is also a wise idea to allow time for a brief preparation meeting just before the deposition begins.  Be sure to calendar the dates so you can call the client the day before to remind and confirm.  


Trial:  Trial preparation is another area where the attorney will rely heavily on the paralegal’s assistance in communicating with the client.  You will be in control of making all arrangements for the trial preparation meetings, providing the client with preparation assignments (for example to review their deposition transcript, discovery responses, exhibits, etc.), and coordinating a mock trial (see Title V, section C).  You will also be the person who the client will lean on during the course of the trial.  While the attorney is busy preparing for opening/closing, next witness or the next day, the client will need someone to calm their nerves, answer any questions (again never predicting the outcome of the case or giving legal advice) and  warning the client of potential dangers which surround them in a court room.  You have to remember you have been to court over and over again but the client on the other hand may never have seen the inside of a courtroom except perhaps from television.   Clients need to be told not to talk to jurors in or outside the courtroom during the course of the trial, instructed on appropriate actions in and outside of the courtroom which include no chewing gum/eating candy in front of the jury (you don’t want them to think that you think you are at the movies), no shacking head in either a yes or no position or making faces while witnesses are on stand and not to feel too relaxed where you are saying to much in front of the other side.  These little things that you know to do and not to do in the courtroom comes second nature to us but clients need quite a bit of guidance in this unusual setting.  Jurors watch everything during trial, not just the evidence of the case.  Jurors watch the attorney, attorney’s staff, client and even your own expert’s behavior.  Jurors will watch the way your client looks, walks, talks and acts in and outside of the courtroom.  So the client needs to be aware of those potential dangers. 

2.         Correspondence:  Before we discuss a paralegal’s written communication with

clients we should briefly review four important things every paralegal should know before they attempt to correspond with the client, attorney-client privilege, attorney-work product, conflict of interest and the danger of giving legal advice. 


Attorney-client privilege is a legal concept which protects communications between a client and his or her attorney and keeps those communications confidential. This privilege encourages open and honest communication between clients and attorneys. However, in the United States, not all state courts treat attorney communications as privileged. For instance, Washington state law, and the federal courts when applying federal law, only protect client communications - an attorney's communication will only be protected as privileged to the extent it contains or reveals the client's communications.  In contrast, California state law protects the attorney's confidential communications regardless of whether they contain, refer to or reveal the client's communications. In addition, the United States Supreme Court has ruled that the privilege generally does not terminate upon the client's death.


Under the work-product doctrine, "tangible material or its intangible equivalent" that is collected or prepared in anticipation of litigation is not discoverable, and may be shielded from discovery by a Protective Order, unless the party seeking discovery can demonstrate that the sought facts can only be obtained through discovery and those facts are indispensable for impeaching or substantiating a claim.  That is, the party unable to obtain the information has no other means of obtaining the information without undue hardship. For example, the witness may have left the country. Where the required showing is made, the court will still protect mental impressions of an attorney by permitting redaction (with an accompanying privilege log) of that part of the document containing the mental impressions. 


In the legal profession, the duty of loyalty owed to a client prohibits an attorney (or a law firm) from representing any other party with interests adverse to those of a current client.  The few exceptions to this rule require informed written consent from all affected clients. In some circumstances, a conflict of interest can never be waived by a client. As perhaps the most common example encountered by the general public, the same firm will not represent both parties in a divorce case.  A prohibited or undisclosed representation involving a conflict of interest can subject an attorney to disciplinary hearings, the denial or disgorge of legal fees, or in some cases (such as the failure to make mandatory disclosure) criminal proceedings. In the United States, possible conflicting clients of a single attorney are deemed as possible conflicts for all lawyers associated with a law firm. Law firms often employ software in conjunction with their case management and accounting systems in order to meet their duties to monitor their conflict of interest exposure, and obtain waivers when necessary or appropriate.


Legal advice is the giving of a formal and binding opinion regarding the substance or procedure of the law by an officer of the court, ordinarily in exchange for financial or other tangible compensation.  Legal advice is distinguished from legal information which is the reiteration of legal fact.   Printed legal materials, such as directions and how to manuals, are generally not considered legal advice.  Accordingly, directions on how to fill in a motion form and other court documents do not constitute legal advice.  The danger of providing legal advice is it constitutes the unauthorized practice of law.  The "unauthorized practice of law" (UPL) is prohibited in every state by statute, regulation or court rules.  Interpretations of the term "unauthorized practice of law" vary among jurisdictions. For example, the use of independent paralegals in California is tolerated to a high degree.  Many of the activities paralegals perform in California would be considered the "unauthorized practice of law" if performed in New York.  Most unauthorized practice of law is unintentional.  Probably the most common violators are accountants, paralegals, public notaries, and people who formerly worked for an attorney.  Many times what seems to be "common knowledge" or "just helping out a friend" in fact crosses the line into the practice of law. For instance, many accountants who represent small businesses will "fill out some forms" to create a corporation.  They are drafting legal documents which requires a law license. A notary public who reads instructions, asks questions, and tells a person which forms to use and how to fill them out may be providing legal advice.  Buying a legal form in a store and helping a friend fill it out involves giving legal advice and drafting legal documents.  In most states, unauthorized practice of law is a criminal offense.  However, while there are cases of individuals being prosecuted for the unauthorized practice of law, absent fraud, theft, or serious violations of consumer protection laws, the common practice is simply to explain to the person that the questioned activities constituted unauthorized practice of law and detain an agreement that the person will cease and desist.


A paralegal is often a liaison between the client and the attorney.  Paralegals have frequent client contact and should be available to the client, even when the attorney is not.  Apply the same principles to written communications to the client as used in written communications to attorneys.  Use clear and concise language, correct grammar, and correct spelling in your communications.  Indicate your title under your signature on all correspondence.  Signing correspondence on law firm letterhead without a title may lead the reader to believe that the letter writer is an attorney.  Be sure to note on all communications with clients the words “ATTORNEY-CLIENT PRIVILEGE CONFIDENTIAL COMMUNICATION.”   If not, the document may be discoverable.  Lawyers are under an ethical duty to keep their client advised of work performed and events occurring in the legal matter.  At least in part, keeping a client advised of events pertaining to his or her matter may be the paralegal’s responsibility as liaison.  As a matter of course, the client should receive photocopies of all pertinent correspondence between attorneys and third parties, all pleadings, discovery (including deposition transcripts) and motions filed with the court.  Further, the client is entitled to and should receive most of your work product.  This is particularly true of organizational memoranda and chronologies.  Check with the attorney before sending any work product to the client.

3.         Guidance:  Most paralegals work under the direct supervision of an attorney.  According to the National Federation of Paralegal Associations, a 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.  This person may be retained or employed by a lawyer, law office, governmental agency or other entity or may be authorized by administrative, statutory or court authority to perform this work.  There are three general categories of paralegal practice:


Traditional Paralegal: A paralegal who works with supervision by and/or accountability to a lawyer;

Freelance/Contract Paralegal: A paralegal who works as an independent contractor with supervision by and/or accountability to a lawyer; and

Independent Paralegal: A paralegal who provides services to consumers with regard to a process in which the law is involved and for whose work no lawyer is accountable.  Also included under the category of Independent Paralegal are the following: 

Special Advocate: A paralegal who is authorized to participate in court proceedings involving specified classes of parties or cases.  The special advocate may be referred to as a “court appointed special advocate” (CASA); and

Agency Representative: A paralegal who is authorized by statute or agency rule to provide representation in agency proceedings.


The foregoing terms are not all inclusive of the titles used within the paralegal profession but are meant to provide a general overview of the evolution experienced by the profession in recent years.


Traditional paralegals constitute a “majority” within the profession.   Traditional paralegals work in law firms, corporate legal departments, and in a significant number of government agencies, including the federal and state court systems.  When law firms and corporate legal departments began hiring more paralegals, there came a need to manage the paralegal personnel and the work they were performing.  Therefore, from within the ranks of traditional paralegals came the paralegal manager (sometimes referred to as a paralegal coordinator.)


Freelance/contract paralegals are self-employed and act as independent contractors who are retained by attorneys from various sectors (both public and private) on a case-by-case basis. Freelance paralegals posses expertise and provide necessary support directly to attorneys on an as-needed basis, thereby providing an economically feasible alternative to hiring a full-time employee.


Independent paralegals are relatively new to the profession and are challenging the boundaries for the delivery of legal services.  Independent paralegals often provide assistance directly to the public and offer a wide variety of services, depending on their area of expertise. Services included document preparation (also referred to as scrivener services), and providing information about the legal system and pro se procedures within various courts. 

For the most of us, all contact with clients (whether by phone, letter or in person) should be done under the direct supervision of an attorney.  The paralegal needs to discuss with the attorney from the start of employment how the firm and/or attorneys will monitor this function.  Some firms will have written policies, others will just have verbal instructions, and a few firms will leave it up to the paralegal to learn it on their own.  Whatever the case may be, it’s the paralegal’s responsibility to assure this is done properly. 


B.         Fact Witnesses and Expert Witnesses

Witnesses are persons who give evidence in a cause before a court and who attests or swears to facts or gives or bears testimony under oath.  Expert witnesses are persons with specialized knowledge, skill, experience, training or education who, once qualified, are able to provide testimony concerning opinions formed. 


Witnesses:  The paralegal’s first order of business is to identify all potential fact witnesses to the case.   The paralegal should first look at the opponent’s pleadings and discovery to determine whether they identify any witnesses.  You then need to review your own file material to include client claim file, police report, subpoenaed records and correspondence to identify any additional witnesses.  You should contact the client to obtain information on any potential character and/or additional fact witnesses.  Start a witness list which will set forth name, address, phone number, witness’ role in case, where witness’ name was obtained from and a notes section to keep track of whether the witness was contacted by you,  gave a statement, deposition status and/or possibility of calling the witness to testify at trial.  This list will need to be updated throughout the course of the case and will be heavily relied upon throughout trial preparation.  Once all witnesses have been identified, talk to the attorney to determine whether depositions will be necessary.  If so, the paralegal will need to coordinate scheduling of the deposition(s).  The attorney should avoid talking to fact witnesses.  This could cause problems later in the case if the other side thinks the attorney is coaching the witnesses’ testimony.  Adversaries will often use this direct attorney contact evidence for jury purposes.  It’s always safest for the attorney to have the paralegal be the only contact person with coordinating the witnesses’ deposition and trial testimony.  Through the course of the case, a paralegal should always keep his/her eyes and ears open for any new witnesses named.   For depositions and trial testimony of witnesses, you will need to subpoena these witnesses to attend and testify.  Ideally you will meet with the attorney to discuss which if any of the witnesses will be deposed and/or called to trial.  You will need to make sure you have plenty of sealed subpoenas from that specific court.  In the Pennsylvania counties, you will need to allow some time to request the sealed subpoenas and for the court to mail them back but for Federal Court the attorney’s signature is all you need to seal the subpoena.  So be sure to prepare and have all subpoenas ready before you meet with the attorney.  You will also need to read the court rules to determine the correct witness fee.  In Pennsylvania state cases, pursuant to 42 Pa. C.S. § 5903 “every witness, except a salaried police officer attending a coroner’s inquest during working hours, shall be paid at the rate of $5.00 per day during the necessary period of attendance.”  It also notes “every witness, except a salaried police officer attending a coroner’s inquest during working hours, shall be paid mileage at the rate of 7˘ for each mile circular actually and necessarily traveled between the place named in the subpoena and the place of residence of the witness.”   In Federal cases, pursuant to 28 U.S.C. § 1821 “a witness shall be paid an attendance fee of $40 per day for each day’s attendance.”  It also notes the witness will be paid for expenses (mileage, toll charges, parking, taxicab, etc.).


Experts:  Experts are consultants, usually hired on an hourly basis.  The obvious difference between expert and fact witnesses is the former are allowed to give opinions and inferences based upon their specialized knowledge.  The proper use of an expert witness can bring a matter to a successful conclusion.  Special rules apply to expert witnesses.  Federal Rules of Evidence Rule 701 – 706 covers opinions and expert testimony. A paralegal’s task related to experts includes locating potential experts; interviewing potential experts; providing materials for analysis (which needs to be constantly updated); performing background investigation of experts; serving as liaison with experts; and preparing experts for legal proceedings.  The paralegal should consider using the following resources in locating potential experts:  the client, in-house databases or expert witness files, bar and trial association files and databases, advertisements in law journals and other publications, jury trial reporting services, the public library, the yellow pages, professional associations, expert witness locating services; value-added online services, to which one subscribes and pays a fee and of course, the internet.  To focus a little bit on in-house databases, all paralegals should have an expert bank.  If the firm does not have one, you need to start one on your own.  To start or to improve your expert bank, sort all CVs into experts’ fields.  Some experts’ CVs may appear to have two specialties.  You can copy the CV and put it under two or more categories.  It’s better to have more than to later waste time looking for it when in fact it is under another category.  As advertisements from experts come in, be sure to update your bank.  If updated advisements and CVs come in from experts, be sure to toss the old advisements and / or CVs.  No need to have ten old advisements/CVs from one expert.  It’s a waste of space.  Also on down time, you should go through your expert bank to determine if you need any updated CVs and fee schedules.  Once you find a hand full of potential experts, you will begin the interviewing process of the experts to request current CV and fee schedule and to discuss case issues, damages and conflict check to determine whether that expert is qualified, interested and to confirm they are not already hired by the other side as an expert.  Before the attorney picks the expert, you will need to conduct background investigation on the expert.  First you should do a basic Google search.  This normally pulls up any advertisement by the expert, notifications of seminars the expert is involved in, current contact information and sometimes a current CV.  There are companies who only cater to background searches on experts.  With theses types of searches, you pay a small fee but get great information on the expert which includes testimonial history, disciplinary actions, list of articles written by the expert, list of articles naming the expert and challenges to exclude the expert.  These types of searches are also done with opponents’ experts.  You want to determine how many times the expert testified and on which side of the case the expert usually testifies.  The last thing you want to do is find out at trial while your expert is on the stand that he was disqualified to testify as an expert.  It doesn’t look good and jury will most likely not believe a word he/she testifies to after something like that is discovered on cross-examination during trial.  The paralegal often serves as liaison between the expert and the attorney by providing the expert with case documents and information, scheduling depositions and preparation sessions, and maintaining regular contact with the expert with regard to progress report and needs of the expert.  Caution should be used in communicating with experts.  All documents provided to the expert and correspondence between the expert and counsel are potentially discoverable.    As trial approaches, constant contact with the expert is vital.  Be prepared for all trial pre-payment requirements the expert has, often a flat fee.  You need to keep the expert posted of any and all case deadlines and trial notices.  If the expert report due date has been changed over and over again, you must inform the expert of all changes each and every time.  Once trial approaches, you will need to obtain and maintain the expert’s schedule.  If you are in a trial pool, it is more difficult to schedule the expert on a particular date and time to testify so obtaining and maintaining the expert’s schedule is extremely important because the case can’t go (well at least) to trial without your expert.  Consider scheduling your expert for a videotape trial deposition if live testimony is not a feasible option. 


C.        Focus Groups/Mock Trials


A focus group is an exploratory, creative conversation with jurors guided by one or two consultants. A focus group usually takes half a day or an evening. A mock trial is a structured, argumentative case presentation in which attorneys present both sides of the case. A mock trial usually takes at least one day if not more.  Focus groups and mock trials are exceptionally helpful tools for attorneys on the verge of litigation or facing an impending trial date. This process allows the parties' attorneys to present their case to a panel of citizens, just like in a jury trial. However in this process, the attorneys are allowed to observe deliberations in order to identify what issues the mock jury found compelling and to see how they viewed the facts and the evidence presented.  This process facilitates settlement negotiations by giving the parties an idea of what might happen at trial and how strong or weak the various positions are. Focus groups and mock trials are far less time consuming and less costly than actual litigation, while providing essential information that can help the parties evaluate settlement offers.


The type of jury research using surrogate jurors can vary.  It is designed to answer any question we may have about how jurors may receive our case as a whole, or any piece of it.  Most people only think about the traditional mock trial - right before trial, for “bet the farm cases” and only if you are “certain” you are going to trial.  Research can be used much more broadly than that.  It can take many forms depending on the situation for which you are using it:

1.         To gain a better understanding of general opinions in a particular venue – telephone surveys about a community attitude survey can tell us, for example, what is the reputation of UPS as a service provider, employer and a corporate citizen in a particular venue.

2.         To help us begin to put our case story together early in discovery – research early in the case may involve giving potential jurors some information about the case in a neutral format so we may see how they develop the story for themselves.  This allows us to follow their lead in putting our story together and navigating our discovery process, instead of asking them to follow ours later on.

3.         To determine how best to test one or two particular issues when we have a limited budget for a case  instead of conducting a large exercise that tests the whole case, Smaller research exercises may be used to test out how jurors understand one complex issue, how they perceive one witness, etc.

4.         To see how jurors value a case to inform appropriate settlement negotiate – When we are wondering if we should accept a particular settlement demand/offer, negotiations further or take a particular case to trial, research can be designed to assess how jurors value a case in terms of damage awards.  This can provide a realistic view of the risk if we move forward, and help determine a reasonable settlement.

5.         To test our key themes and strategies as we approach trial – traditional focus group exercises provide surrogate jurors with presentations of arguments, facts, testimony and evidence from each side of the case, assess individual decision making and reactions to case strategies, and then allow jurors to deliberate as a group to see how jurors form their own arguments for each side of the case.  This kind of exercise is helpful in evaluating case strategies, developing themes and helps us assure our arguments are as effective as possible in educating and persuading jurors.

6.         To assess how jurors are receiving the case and witnesses at trial – a small sample of surrogate jurors may sit in court during trial and provide feedback on their perceptions at the end of each day – allowing us to take a pulse on how jurors are receiving the case witnesses and arguments on a daily basis. 

Jury research gives a glimpse into the process by which jurors understand and view the case.  Through jury research we may assess key attitudes in the venue of the trial; how those attitudes impact the way jurors receive the case, profiling characteristics of the best and most dangerous jurors for a particular case; strategic voir dire questions that will best identify the most dangerous jurors; juror perceptions of the witnesses; both side’s case strengths and weaknesses; what information or evidence is the most/least important to jurors in making their decisions; acceptance or rejection of the key case strategies; the arguments jurors use to successfully persuade other jurors in deliberations; risk in terms of damage awards and damage accelerators and/or mitigators.  Quality jury research should:

1.         Be conducted in the venue of the trial.  The only exception is when the venue is too small, or if there is a concern for confidentiality or jury contamination.  In that situation a geographically and demographically similar venue should be utilized.

2.         Use surrogate jurors matched to the demographic profile of the people in the venue.  Recruiting should be a scientific process that assures a representative sample (e.g., not all teachers in the summer, not all unemployed).

3.         Ensure confidentiality by carefully screening participants for any connection with any of the case parties, witnesses, counsel, etc.

4.         Have conducted by professionals who have expertise in social sciences, research methodology and statistics.  Such professionals understand how to maintain the integrity of the research data and, therefore ensure quality results.

Once your firm decides to conduct either a focus group or mock trial, the paralegal will assist in hiring a provider.  First you will need to conduct searches to locate providers who offer this type of service, if you don’t already have this type of information on file, you should keep copies of all search materials so if this comes up again, you don’t need to recreate the wheel.  Next you will contact all potential providers to discuss what they offer, conflict of interest and pricing.  Once quotes begin flooding into the office, you and the attorney will need to sit down and review each proposal to determine what each provider offers in their services.  You shouldn’t always just go with the cheapest quote.  You will need to step back to determine why they are the cheapest.  Are they cutting corners just to get in the lowest bid so they are hired?  Are they conducting quality jury research?  Are they going to take the extra steps to ensure confidentiality?  You need to compare each proposal to see what each provider is offering and what you are actually paying for.  Once you decide on a provider, the paralegal will be the person that works with the provider in coordinating the focus group/mock trial.  This entails coordinating file material which includes list of participants (i.e., parties, attorneys, etc. to be used in screening participants for the research), outline of both plaintiff and defense presentations, narrative scripts of both presentations and video clip designations for witnesses, jury instructions and verdict sheets.  You will need to be the contact person for any questions the provider may have, all additional requests the provider may have and confirmation of scheduled focus group/mock trial. 

SOURCES: The National Federation of Paralegal Associations, Inc., © (2005) and (February 1996).  Reprinted with permission.  Pennsylvania Rules of Civil Procedures 42 Pa. C.S. section 5903.  Federal Rules of Civil Procedures.  28 U.S.C. section 1821.  Trial Graphix.




A.        Documents and Lists that will prove to be Invaluable

The four things I can’t live without during trial are the pre-trial memorandum, trial exhibit list, trial witness list and witness notebook. 


To a paralegal the pre-trial memorandum is the bible in your case during trial.  This document lists every piece of paper exchanged through the course of the case.  This document also lists every witness named in the case.  It’s a general list of any exhibits and/or witnesses who may be used and called during trial.  This document is the (you will note in section B) you will use intensely in trial preparation.  You will use it when preparing your exhibit binder.  You will use it when deciding what witnesses to subpoena for trial.  As trial progresses and you are tracking trial exhibits, your pre-trial memorandum will be a quick and easy reference on where the exhibit came from and what it will be marked as which makes your trial exhibit list (which will be discussed next) easier to keep track of and updated.  As trial progresses and the attorney continues to lose track of what witnesses he will call when, the pre-trial memorandum in a quick easy reference of all potential witnesses so no one will forget who they may want to call.    


Your trial exhibit list should be prepared before the start of trial.  There is no right or wrong way to prepare a trial exhibit list.  This generally will be used in-house but will be used and reviewed by you and the attorney all during trial to keep track of what exhibits were used by what party (either plaintiff or defendant), admission of exhibits, exhibits offered into evidence and what witnesses the exhibits were used with.  This list is also very helpful and may also be reviewed if case is appealed.  Your trial exhibit list can be short and to the point and name only exhibit number, description of exhibit and witnesses used with exhibit (see example E1).  Your trial exhibit list can also be detailed and list case caption, judge’s information, court reporter’s information, court clerk’s information, dates of trial, column for plaintiff’s exhibit, column for defendant’s exhibit, column for admitted, column for evidence, description of exhibit and column for witnesses the exhibit was used with (See example E2).  You can also prepare one that suits you and your firm.  It doesn’t matter what your trial exhibit list looks like, as long as you track your exhibits used during trial, in a logical and organized fashion.  The same concept goes for preparing your trial witness list.  This list doesn’t have any specific format.    The trial witness list will identify which witnesses testify for each and every day.  I know when I’m on trial, by the third day I can’t remember which witnesses testified on which days.  If you don’t, most likely the attorney won’t either.  At trial you and the attorney are so busy preparing for the next witness, next exhibit and next day that once the day/week/weeks are over, it’s hard to remember who went when.  This document again may only be for in-house use.  The more detailed the list, the nicer it appears for the attorney to review.   The list should have case caption, judge’s information, dates of trial and list each day, each witness called (see E3).  You can also add the length of time each witness’ testified.  But again, this list can be prepared to the needs of you and your attorney. 


A witness notebook is an absolute necessary when the paralegal is the person who will be coordinating the witnesses’ testimony during trial.  I personally used to work off of my witness list which is prepared when the case is first opened (discussed in Title V, section B) but if your witness list is anything like mine, it’s hard to lug around with you during trial.  The witness list of course is still with me during trial but I recently started using a pocket notebook which is in size only 3x5 in/7.6x12.7cm and extremely easy to carry around without even noticing it’s there.  During trial a paralegal will need to coordinate witnesses and experts testimony.  If you’ve ever tried to do this before, it’s next to impossible to schedule a specific time and date for a witness to appear and testify live.  Before trial begins and after you subpoenaed the witnesses to appear and testify you will need to obtain from each witness their home phone, work phone, cell phone, e-mail or any other numbers so you can keep in touch with them during the course of trial and update them on when potentially they could/will be called.  Although they can be annoyed, the witness usually appreciates your efforts to minimize inconvenience and reduce how much time they sit in the court house.  As trial is moving along, depending on how slow or fast the case is moving, you will need to update every witness to let them know how it is moving and at this moment when you think they will be called.  Never, ever give a specific date and time since it is unlikely that date and time will stay the same throughout the course of the trial.  Always give an approximate date and time so the door is always open to change.  You will need many different ways to contact them since most of the time you won’t know who you will need for the next day until that evening, after you leave court and meet with the attorney to discuss the strategy for the next day.  The more you do to update the witnesses, the better chance you have of each witness actually appearing on the exact date and time you want them there.  The notebook is small enough to get in your pocket and stay with you every second of the day/night during trial.  You have every witness’s contact information at your finger tips so you can call at any given moment.  Carrying around a big red well with contact information is not practical.  It is also easy to misplace or leave the red well behind at court with all the files and boxes going in and out of the court house each day.  You can also keep in your notebook a list of each witness’s availability during trial.  This way if the attorney decides he wants to call Jane Doe at 9:00 a.m. the next day, you can take a quick look at your notebook and see Jane Doe is not available until 12:00 noon the next day.  It is easier to change the order of the witnesses with the attorney before you even begin calling the witnesses.  If you find out a witness is not available until you call them the evening before, by then you may have called a few other witnesses.  So now you need to meet with attorney to discuss changes in line-up for the next day, and then contact all the witnesses and change the order of appearance as needed.  So if you know all witnesses’ availability before the start of trial and it’s listed in your trial notebook, coordinating the witnesses during trial runs smoothly.   


B.         Organizing Trial Files for Easy, Efficient Access


The day a file comes in the office is when you should begin to prepare it for trial.  Now to most people that would be a joke but it’s true.  From the second that file is opened, a paralegal should set the file up in an orderly fashion.  Typical files should initially be set up accordingly:  correspondence, pleadings, discovery, research (specifically identified), client claim file, invoices, bills/expenses, memoranda, in-house emails, witness list, service/contact list and subpoenaed records list.  If you start organizing a file the minute it is opened, you save time and your client money in trial preparation to get it ready for trial.  It doesn’t just stop there.  A paralegal will continuously review, organize and update the file throughout the life of the case overseeing a legal secretary’s efforts, as needed.  But if your firm is anything like mine, an attorney will come along and take the entire file apart, and never say anything to you.  Portions of the file will be in the attorney’s office, portions of it in the filing cabinet and the rest of it in the conference room.  If you calendar each case, every three to six months, to sit down and reorganize the file, it will stay in order and be ready for trial.  But that is not always the case with certain firms and/or files.  There are times where you just can’t get to all the files to clean them up or keep them in order as the case progresses.  There are situations wherein a call comes into the firm from the court “Trial starts tomorrow at 9:00 a.m.”  Regardless of whether or not you were able to keep the file in order, it now needs to get ready for trial.  There are times where you have months to get ready for trial but for the most part, you don’t want to get trial ready to early on the chance it settles.  Why charge the client for trial preparation if the case will likely settle before trial.  There are also cases, and this may apply to larger firms, wherein different departments work on different stages of the case.  For example you could be on the trial preparation team wherein all this team does is prepare the files to go to trial.  This means a totally different department (discovery team) had complete control of the file before it comes to you.  Hence, messy file!  In any case, whether you knew months in advance or a short notice call comes in from the court; it’s time to get your file ready for trial. 


First order of business is to organize the file which includes updating with current correspondence, pleadings and discovery.  Review lists and charts to ensure they are current.  This includes subpoenaed records lists to confirm all subpoenas/authorizations have been complied with.  If not, make calls to follow-up on previously requested documents.  Issue any subpoenas/authorizations to obtain any updated records (sometimes it is just as easy to call the provider/entity and ask if any updated records exist which will save time if no records exist).  If updated records do exist, you can try to prepare a letter and include a copy of the original subpoena/authorization and request the updated records.  If a subpoena was originally sent in, you can advise they are still under subpoena and request the updated records.  If an authorization was originally submitted, you may have a harder time getting the records without an updated executed authorization.   Be sure all medical binders are current to include all updated medical records, dates of service, further/revised summary of treatment, medical bill charts, etc.  If the trial will occur out of town there will be packing involved.  It’s best to pack your boxes in the order a file is kept.  Start packing all discovery, then pleadings, subpoenaed records, experts, research, miscellaneous, etc.  Even if the trial is local, it might make sense to pack the case any way and bring it to the courtroom.  You never know when you will need something and it’s better to have it at your finger tips.  You must also be sure to pack supply box(es).  If you are on the road, you will need one for the hotel and one for the courtroom.  If you are local, one for the courtroom is all you will need.  These boxes should stay in the courtroom.  There is no need to bring the entire file to and from the court house every day.  Most courts have security at the entrance of the building.  There is no need to waste so much time carrying your boxes back and forth and dealing with metal detectors and long lines.  You should only bring the specific documents needed that night to review in order to prepare for the next day.  Depending on what technology you plan to use in the courtroom and depending on what the courtroom may already have for your use (see Title VI, section C), you will need to also bring with you to the courtroom extension cords, electrically tape (to tape down any and all wires), TVs, VCR, DVD, CD players, laptop, projectors, screen, easel, hand carts and things of that nature.   


C.        Evidence and Exhibits


You will need to meet with the attorney to discuss coordination/organization of trial exhibits.  First schedule a meeting with the attorney to discuss the case.  Bring with you to the meeting the Rules of Civil Procedure, whether it be State or Federal, local rules and copy of the case management order(s), if any, so you can review to determine whether there are any procedures for listing, naming, marking and/or exchanging of trial exhibits.  If none, you are pretty much on your own to decide how to prepare your trial exhibits.  If there are rules and guidelines to follow when preparing trial exhibits, you will need to follow that style.  Also bring with you to the meeting and a copy of the pre-trial memorandum (which you probably prepared) which most of the time will name every piece of paper in your file.  You will need to decide if you want to pull and mark entire files or hand pick certain documents from within those files.  If you decide to mark the entire file, you should pull any relevant documents from the file and mark one copy.  Once complete, you can begin to mark the copies as trial exhibits.  You will need to decide whether to further breakdown your exhibits depending on the content of exhibits.  An example is if you name defendants’ document production as D-5, you could break down this exhibit as a subpart (defendant’s answer to plaintiff’s interrogatories as D-5a, defendant’s response to plaintiff request for production of documents as D-5b, defendant’s supplemental responses to plaintiff’s request for production of documents as D-5c, etc.)     Most attorneys will decide to only use a number of specific exhibits at trial.  In this case you should still make one complete copy of file materials (depending on costs associated with reproduction).  From there mark those exhibits according to your pretrial memorandum.  Once complete, have the attorney review and tab which specific exhibits he/she will use at trial.  Further mark those exhibits accordingly.  At this point you are ready to make your trial binders.  Most courts require counsel to exchange trial exhibits before trial.  So make as many copies as there are counsel in the case.  You will then need to make extra copies of the trial exhibit binder for the Judge, witness stand, court reporter and court clerk.  This way during trial while the attorney is questioning a witness about a particular exhibit, no one is interrupting by blurting out they don’t know what exhibit the attorney is referring to.  Trial runs smoother if you are well prepared with your exhibits.  If you wait until you are in the courtroom to begin marking exhibits, your firm looks unorganized - and jurors take note of that! 


D.        Advance Planning With the Clerk and Other Court Staff


Once trial approaches, a paralegal should call the Judge’s law clerk and introduce him/herself, advise what case you are calling about and advise the date of potential trial.  Find out if that particular judge has any rules, policies or procedures he/she likes counsel to follow leading up to and during trial.  This includes all pre-trial filings, specific procedure for marking trial exhibits and policies or procedures for copies of trial exhibits (also discussed in Title VI, section C).  You will also need to find out what type of equipment is in the courtroom for your use.  This includes TVs, DVD player, VCRs, CD players, internet connection for laptop, projectors, screen, easel and things of that nature.  You then need to find out who you should talk to about arranging use of the courtroom equipment.  Some courts will have a specific department which handles requests for use of courtroom equipment.  Other courts will tell you the equipment is in there for your use and you will need to make arrangements for someone to run the equipment.  You don’t want to walk into court planning to use the TV but because you didn’t request it ahead of time, there is no TV and your only witnesses for the day are videos to play.  Whatever the case may be, you will need to be prepared.  From there you will prepare a list for the attorney to review and schedule a meeting to discuss what additional equipment you will need to bring to the courtroom for trial.  After you decide what additional equipment you should have, you will need to call the court to find out whom at court you should talk to about arranging outside equipment to be brought into the courtroom.  This does not always concern just equipment but some of the larger exhibits.  Some courts require you to make arrangements with security before you can bring in outside equipment and even larger exhibits.  Advance preparation also makes it easier the first day of trial when you are trying to get your boxes, equipment and larger exhibits through the front door, if it is arranged and okay with security beforehand, you can make it in the court house smoothly – and note potential jurors may be watching!



Case name

Court information






















































By:   Matthew S. Marrone, Esquire
ID No.: 82900        
1601 Market Street, Suite 2230         
Philadelphia, PA 19103
(215) 751-9192

   Attorneys for Defendants








NO.  05-05374



Presiding Judge:

 The Honorable Robert J. Shenkin
Chester County Court of Common Pleas
15th Judicial District
2 North High Street, Courtroom 2
West Chester, PA 19380        
(610) 344-6170 

Plaintiff(s) Attorney:

Michael DiGenova, Esquire
Badey, Sloan & DiGenova
1528 Walnut Street
Suite 1500
Philadelphia, PA 19102
(215) 790-1000
(215) 790-0604

Defendant(s) Attorney:
Matthew S. Marrone, Esquire
Lucas & Cavalier, LLC
1601 Market Street, Suite 2230
Philadelphia, PA 19103
(215) 751-9192
(215) 7519277

Trial Date(s):
March 19, 20, 21, 22 & 23, 2007

Court Reporter:
Helen Conover

Courtroom Deputy:
Richard Keeley

Plf No. Def No. Date offered Marked Admitted Description of Exhibits and Witnesses



By:   Matthew S. Marrone, Esquire
ID No.: 82900Attorneys for Defendants
1601 Market Street, Suite 2230
Philadelphia, PA 19103
(215) 751-9192










NO.  05-05374




Monday, March 19, 2007:                                Thursday, March 22, 2007


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Tuesday, March 20, 2007:                                Friday, March 23, 2007


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Wednesday, March 21, 2007:








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