Give the Reporter a Hand to Get a Clean Deposition Transcript

by Julie Brook, Esq.

This material is reproduced from the CEBblog™, Give the Reporter A Hand To Get A Clean Depo Transcript, ( copyright 2014 by the Regents of the University of California.  Reproduced with permission of Continuing Education of the Bar – California.  (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site,

give-the-court-reporter-a-hand-to-get-a-clean-deposition-transcriptWhen you’re taking a deposition, you know that ensuring a complete and accurate record is vital. So don’t take the person who’s dutifully taking down the proceedings for granted: Assisting the court reporter is not only polite, it might be the key to a clean depo transcript to use at trial.

Helping the court reporter starts even before the deposition begins by

  • Showing up early to organize documents for convenient reference and mark them as exhibits.
  • Giving the reporter a copy of the case caption so the transcript will include the correct case name and court number.
  • If the deponent is an expert, offering the reporter a written glossary of unusual terms that will be used during the deposition.

Once the deponent and other counsel show up at the deposition, you can help the court reporter by identifying everyone there, including the party each counsel represents.

During the deposition, help out the reporter by:

  • Spelling technical words or proper names into the record;
  • Controlling the examination so that two people aren’t talking at once (and if they do, ensuring that the reporter records the deponent’s statements before others’);
  • If you’re working with a relatively inexperienced reporter, making sure he or she understands that interrupting the examination to ask for an answer to be repeated is preferable to guessing at what was said;
  • If you are uncertain whether the deponent’s answer was recorded correctly, asking the court reporter to read back the last question and answer and, if the answer is incorrect, asking the deponent to repeat the correct answer;
  • Checking in with the reporter at a break about any transcription problems; and
  • During unusually long or technical depositions, occasionally asking if the reporter would like to take a short break.

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Even with all of the technology available, Massachusetts court reporters remain the reliable source for accurate and timely court reporting and transcripts that are crucial to attorneys’ work every day. These reporting professionals have also now evolved to bring innovative ideas and new technology into the work of legal professionals both in the area and across the country.

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Summit Court Reporting is an important asset for today’s law firms.

More and more lawyers are taking on cases that present new challenges. These lawyers are working to enhance the way they work by partnering with top Philadelphia court reporters, and Summit Court Reporting is the leader in providing the services necessary for today’s legal work.

Summit provides all of the important services that today’s attorneys need throughout all phases of their casework. Indexing, online repositories, and courtroom presentation can all help lawyers make an impact in different ways.

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New Appellate Decision on Deposition Time Limits May Benefit Defendants in Asbestos Litigation

by Sally Hosn

New Appellate Decision on Deposition Time Limits May Benefit Defendants in Asbestos Litigation

Asbestos has been linked to a number of serious problems in people who have been exposed to the material.

On January 8, 2014, the California Court of Appeal issued an opinion holding that the deposition time limits for certain cases may be extended past the seven-hour rule set by the California Code of Civil Procedure. Under Code of Civil Procedure1] section 2025.290, the deposition of a witness by opposing counsel must be limited to a total of seven hours of examination, except under certain circumstances, such as complex and preference cases. (§ 2025.290, subd. (a).)When a case is designated as complex, and a physician has signed a declaration that the deponent is unlikely to survive longer than six months, the deposition time limit may be extended to a total of 14 hours of examination. (§ 2025.290, subd. (b).) However, according to the recent California Court of Appeal ruling, the Court has discretion to allow depositions to extend any time limits imposed by section 2025.290.

In Certainteed Corporation v. The Superior of Los Angeles County (Jan, 8, 2014, B253308) __Cal.App.4th ___, the Court of Appeal responded to a trial court’s request to issue an opinion regarding the trial court’s authority to allow additional deposition time in asbestos cases, reiterating its earlier stance that such extra time is permitted on a case-by-case basis. In issuing its opinion, the appellate court analyzed the deposition time limits statutorily imposed by section 2025.290. In particular, the Court focused on the section of 2025.290 which states that “the Court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent.” (§ 2025.290, subd. (a).)

Traditionally, this has been read as only applying to the seven-hour time limit. However, in the opinion of the Court of Appeals the word “section” implies that the Court’s ability to extend deposition time limits applied equally to the seven-hour and 14-hour deposition time limits. The Court of Appeal held that “both the seven-hour limit and the 14-hour limit are presumptive only and are plainly subject to the discretionary authority of the trial court to allow additional deposition time.” (Certainteed v. The Superior of Los Angeles County, __Cal.App.4th__[p 4].)

This latest decision indicates that deposition time limits in asbestos cases have become much more flexible. This ruling from the Court of Appeal should greatly benefit asbestos defendants. Generally, asbestos cases involve many defendants and plaintiffs that are often both elderly and ill. Such factors severely limit a defendant’s ability to effectively depose plaintiffs within the time limits previously required under section 2025.290. However, going forward, upon a showing that such factors affect the ability to fairly examine a deponent, the Court may in its discretion, allow a deposition to extend beyond the time limitation previously imposed by section 2025.290.

Sally Hosn is an associate in the toxic torts department of Poole & Shaffery, LLP. Ms. Hosn’s practice primarily focuses on defending entities against toxic torts and chemical exposure claims.

Greening Your Legal Practice

By Carter E. Strang

Greening Your Legal Practice

What are you doing to ‘green’ your legal practice?

Economist Barbara Ward said “[o]ur only choice, whatever our dogma, is to protect the Earth. This is our common progress or our common ruin. There is nothing in between.”

It is incumbent upon attorneys to help protect the earth because we are part of the problem: The typical attorney uses between 20,000 and 100,000 sheets of copy paper alone per year, much of it wastefully, resulting in environmental harm and unnecessary expense.

However, something as simple as resetting printers to print documents double sided results in significantly less waste as well as cost savings. One firm that followed this practice reduced its paper use by 1,760,135 sheets, which saved 150 trees and 61,604 gallons of water and prevented the release of 97 tons of CO2 emissions. It also resulted in a yearly savings of over $13,000, a true “win-win” for the firm and the environment.

Discussed in this article are practical steps attorneys, their firms, corporate and government law departments, legal non-profits, and other law organizations (“firms/offices”) can take to “green” their practices by reducing office waste and costs.

Bar Association Programs

An ideal way to green your law firm/office is to take advantage of an existing bar association program. Various programs exist at the national, state and local bar levels, including the ABA-EPA Law Office Climate Challenge and Massachusetts Bar Association Lawyers Eco-Challenge.

Participation in a local (municipal or county) bar association green program is particularly advantageous because of the enhanced ability to work closely with bar staff and local attorneys in a way that enhances the local community. One such program, offered through the Cleveland Metropolitan Bar Association, is profiled below.

Should participation in a bar association program not be practical, your firm/office can still implement any of the bar or individual firm/office green initiatives discussed in this article.

Cleveland Metropolitan Bar Association Green Initiative

Launched in 2008, the Cleveland Metropolitan Bar Association Green Initiative (CMBA/GIP) may well be the most comprehensive local bar program of its type in the United States.

The CMBA/GIP is coordinated by its Green Initiative Committee, composed of a broad cross section of bar association members employed at law firms/offices, as well as non-lawyer affiliates (e.g., court reporting firms). The core mission of the Committee is to promote sustainable environmental practices at law firms/offices.

The CMBA/GIP capstone is the Green Certification Program which certifies law firms/offices which adopt environmentally responsible practices. Just shy of 50 Cleveland area firms/offices are now certified. The CMBA Green Certification criteria include firm/office recycling, responsible paper use, and energy saving efforts. The criteria can be found at

Recently, CMBA added a Green+ Certification level for those firms/offices that demonstrate a commitment to the environment above and beyond that required for basic certification. Green Certified firms/offices proudly display the “CMBA Green Certified” or “CMBA Green Certified+” logo on their websites and other marketing materials.

Each year, a law firm/office that has adopted new and innovative green practices is chosen to receive the CMBA Green Innovation Award – an award made of 100% recycled materials.

The CMBA Green Committee also holds an annual “Greener Way to Work Day.”   On that day, all bar association members and affiliates are encouraged to take green commutes to work (public transportation, carpooling, biking, etc.). A luncheon program is held to honor those who are green certified and to present the annual Green Innovation Award.

The program includes participation by green vendors (e.g., recycling companies) which are provided booths in return for financial support for the luncheon. Local governmental entities have embraced the event, including the Regional Transportation Association, which provides discounted mass transit vouchers.

The CMBA Green Initiative Committee also created a Carbon Footprint Calculator for legal services organizations, which can be used to determine the carbon footprint per hour of legal services rendered.   The CMBA published the Calculator along with other useful information – including recycling information – in the bar journal and posted it on the Committee website.

The Green Initiative Committee has also partnered with local organizations and companies to promote green activities. One such effort is its partnership with OneCommunity and RET 3 Job Corporation to reduce a significant environmental hazard – e-waste. Their Green Computing program refurbishes computers for donation to local urban schools, reducing the “digital divide” between the quality and quantity of computers used in wealthy and impoverished school systems. What cannot be fixed is responsibly recycled, with nothing going to landfills.

The CMBA promoted the Green Computing program by encouraging local law firms/offices to donate their unwanted computers – and even assisted in collecting them.

Firm/Office Green Initiatives

Law firms and offices are required – as part of the CMBA Green Certification Program – to create their own green committees to implement the CMBA certification requirements and serve as a liaison to the CMBA Green Initiative Committee.

The firm/office green committees have served as incubators of sustainable office practices which go beyond the CMBA certification requirements and are worthy of duplication by other firms/offices. Below are some examples of firm/office initiatives.

  • Earth Day programs, featuring speakers, green vendors, raffles, and prizes for those that bicycle, car pool, or take public transportation to work that day. One law firm featured local grown/organic wine and appetizers at its program.
  • Bicycle clubs that promote recreational bicycling and the use of bicycling as transportation to work. One law firm arranged for the free use of showers for its participants.
  • Green programs in collaboration with other tenants of the same office building and the building owner. One firm’s efforts led to a building-wide recycling program and a green fair in the building lobby.
  • Screen saver modes for firm/office computers that remind personnel to turn off their computers at the end of the day.
  • Compost programs for coffee grounds and leftover office food.
  • Discontinuance of disposable cups and water bottles.
  • Adoption of a “single stream” waste handling program wherein all non-food office waste is put in the same container and is separated later by the waste handling company.
  • Green “give aways,” such as a reusable grocery bags/totes with the firm/office logo, a BPA-free water bottle, a solar calculator or flashlight made from recycled materials, etc.), along with information about the beneficial impact of their use.
  • Green newsletters and websites that include profiles of green activities and committee members, discussion of green practices in the home, and interactive postings. One firm posted a “freeboard” where unwanted personal items are offered at no cost for anyone that wants them (bikes, furniture, etc.), reducing solid waste disposal. The same firm also had an interactive posting site for ride sharing.
  • Workplace contests that promote green practices.
  • Educational environmental DVDs using firm/office personnel. One firm created a series of DVDs that promoted recycling and reductions in energy use both at the office and at home. The DVDs utilized firm personnel as actors in humorous but thought-provoking skits. The DVDs were shown at firm functions and posted on the firm website.
  • Merging “wellness” health initiatives with green initiatives, such as firm support of a local bike ride for charity, resulting in fewer visits to the doctor and possibly lower firm/office insurance premiums.
  • Reusing/repurposing/recycling litigation/trial binders.   One firm instituted a program to reuse as many binders as possible, repurpose those not suitable for reuse by sending them to local urban schools, and recycle those no longer in a condition for use by anyone.

A suggested “best practice” for a law firm/office green committee is to include representatives from each occupational group (partners, associates, of counsel, paralegals, IT personnel, and legal secretaries). Staff members in particular appreciate being included in a decision-making part of the firm. If your firm/office has multiple offices, include representatives from each office on the committee and conduct meetings via video conferencing.

Finally, remember that keeping your committee events fun and interesting will increase interest and participation.


In light of our recent (April 22) celebration of Earth Day, consider it to be a fitting time to green your firm/office and become part of “our common progress” rather than our “common ruin.” Adopting even just a few of the ideas discussed above will help protect the earth and improve your firm’s bottom line as well.

Carter E. Strang is a partner in the Cleveland offices of Tucker Ellis LLP. He is a member of the DRI Toxic Tort & Environmental Law Section and is listed in the Top Rated Lawyers Guide to Energy, Environmental and Natural Resources Law. He is Immediate Past President of the Cleveland Metropolitan Bar Association and a past president of the Federal Bar Association, Northern District of Ohio Chapter. He founded the CMBA Green Initiative, served as chair of its Green Initiative Committee, and currently serves as a member. He was also instrumental in the creation of the Tucker Ellis Green Initiative Committee, upon which he also serves. The firm received the CMBA Green Innovation Award and is CMBA Green+ Certified.

Export Control Reform: Where Are We Now?

by Jon P. Yormick and Mark J. Sundahl


Export Control Reform: Where Are We Now?

New regulations involving the export of ‘dual use’ items are taking hold.

Five years have passed since the Obama Administration launched the Export Control Reform Initiative (ECR) in 2009.   This initiative was undertaken to remedy the complexity, ambiguity, and occasional absurdity of the existing regulations governing the export of military and dual-use items (i.e., items that have a civilian as well as a military application). While significant progress has been made in reforming this critical area of law, the project is not yet complete.

The primary thrust of the ECR effort is to move less sensitive items and technologies from the United States Munitions List (USML) to the Commerce Control List (CCL). Items on the USML are subject to the strict controls of the International Traffic in Arms Regulations (ITAR) which, with few exceptions, require a license from the U.S. Department of State’s Directorate of Defense Trade Control (DDTC) prior to the export of the listed items (known as “defense articles”). Those items and technologies that are transferred to the CCL will be subject to less strict controls of the Export Administration Regulations (EAR) which regulate the export of dual-use commodities and technologies.

The other goal of the ECR is to transform the USML into a “positive” list, i.e.,a list that describes the controlled defense articles and technologies with specificity in order to enable companies to more easily determine when their products are subject to the ITAR. Unlike the CCL (which is a positive list), the descriptions of items on the USML have been notoriously broad. As a result, a manufacturer’s product may fall within the scope of the ITAR even if the item has no inherent military application. For example, prior to the ECR, all parts and components that were “designed” or “modified” for incorporation into a controlled item were subject to ITAR control. This was true even if the part taken by itself had no inherent military application, such as a screw that had been painted “army green” for use in a tank. This overly broad language of the USML has required a multitude of lower-tier manufacturers to be regulated under the ITAR with its annual registration requirement (even if the manufacturer does not export or only had a single transaction involving a defense article or technology), licensing mandates, and threats of severe penalties – civil, criminal, and debarment.

The proposed revisions to the ITAR (and those already in effect) fix this problem to a large extent by describing with specificity those items that are subject to the ITAR. Blanket categories, such as “spacecraft,” have been replaced by lists of technology with clear specifications that attempt to include only those items that are of true military value – and which therefore deserve the strict controls of the ITAR. Perhaps most importantly, the number of parts and components that are controlled has been significantly reduced and now generally exclude those parts that have no inherent military or intelligence applications. This has been achieved by subjecting to the ITAR only those parts and components that have been “specially designed” for use in a defense article. The new definition of “specially designed” excludes any fasteners (nuts, bolts, screws, etc.), as well as any part that has performance specifications equivalent to an item regulated under the lower tier of export controls of the EAR. It also sets up a “catch and release” structure so that articles and technologies that are initial caught under the new “specially designed” may nonetheless be “released” from the jurisdiction of the ITAR if the item is not specifically listed on the USML.

At the outset of the discussion of the ECR, there was hope for the eventual unification of the two regimes. If this is accomplished, we will have a single list of controlled items, rather than the existing bifurcated system based on the USML and the CCL, and this single list of items would be subject to a single set of regulations administered by one agency. At this point, a unitary “one-stop shop” approach to export controls is not likely to evolve within the near future. This goal may be realized in the next wave of reforms, but the current project will be restricted to the transfer of items from the USML to the CCL and the transformation of the USML to a positive list.

ECR Progress to Date

Last April, in these pages of the CMBJ, we wrote that the initial noticeable steps of the ECR had occurred in early March. At that time, we explained that the Administration had issued its first “38(f) notice” to Congress regarding USML Category VIII (Aircraft and Associated Equipment) and the newly established Category XIX (Gas Turbine Engines and Associated Equipment) and that the first transfer of items from the USML to the CCL would likely occur in October 2013. Despite a federal government shutdown last October, ECR forged ahead with the first transfers effective on October 15, 2013.

Since then, the Department of Commerce and the Department of State have been and continue to be engaged in transferring appropriate items on the USML to the CCL pursuant to the “38(f) process” as provided under Section 38(f) of the Arms Export Control Act which requires the President to periodically review the USML ‘‘to determine what items, if any, no longer warrant export controls under’’ the ITAR. Items moved to the CCL are now and will continue to be grouped under the new “600 Series” category that will also contain certain significant military items that are already on the CCL.

So how far along are we in this process? The process has moved forward methodically through the review and revision of each category of the USML. The amendments to the following categories have already gone into effect: Category VI (Surface Vessels of War and Special Naval Equipment), Category VII (Ground Vehicles), Category VIII (Aircraft and Related Articles), Category XIII (Materials and Miscellaneous Articles), Category XVII (Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated), Category XX (Submersible Vessels and Related Articles), and Category XXI (Articles, Technical Data and Defense Services Not Otherwise Enumerated).

Amendments with respect to other categories go into effect in a few short months on July 1: Category IV (Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs, and Mines), Category V (Explosives and Energetic Materials, Propellant, Incendiary Agents, and Their Constituents), Category IX (Military Training Equipment), Category X (Personal Protective Equipment), and Category XVI (Nuclear Weapon, Design, and Testing Related Articles).

We are still awaiting the publication of final rules with respect to two categories of the USML for which proposed rules have been published: Category XI (Military Electronics) and Category XV (Spacecraft Systems and Associated Equipment). The proposed changes to Category XV have been particularly momentous — and generated the greatest volume of public comments.   On May 24, 2013, the DDTC issued proposed rules that will transfer (for the most part) all but the most sensitive space technology to the CCL, thus restoring the appropriate level of control to civil space systems that existed prior to an unauthorized disclosure of controlled technology resulting from a 1996 failed launch of a U.S. satellite from China. Those items that would remain on the USML include satellites and spacecraft with significant military value, such as the ability to detect nuclear detonation, track missiles, destroy other satellites, or strike targets on Earth. However, some aspects of the proposed rule remain controversial, such as the retention on the USML of any hosted payload that is funded by the U.S. Department of Defense (regardless of the payload’s capabilities), as well as any “man-rated” spacecraft, even if such spacecraft (such as Virgin Galactic’s SpaceShipTwo) has no military application. The continuing debate over these issues could delay the issuance of a final rule for Category XV into next year.

As we also stated last year, companies that manufacture or export defense articles that are currently subject to the ITAR, but will be transferred to the CCL later this year will face a lighter regulatory compliance burden. Generally, although a license will still be required for items transferred to the CCL’s new “600 Series” category (unless the item is being exported to Canada), a number of license exceptions may permit export without a license. Of particular significance is License Exception Strategic Trade Authorization (STA). Under specific circumstances and upon meeting certain EAR requirements, this license exception is available when products or technologies are exported to a NATO country and to those located in other allied countries, such as Australia, Japan, New Zealand, and South Korea. If a license is required, the on-line licensing process under the Department of Commerce regulations are less complicated.

ECR is here. Companies that have not yet reviewed the jurisdiction (USML v. CCL) under which their products and technologies are governed under ECR cannot afford to wait any longer to determine how ECR affects their export compliance processes and procedures, and their customer relations.

Good, Better Best: Never Let It Rest

By Beth Hill


Can you visualize where your law firm will be in five years?

A quote from George Burns says it best. “Get your good better and your better best.” This is good advice because there is no time to rest on one’s laurels. As paralegals, we are responsible for our own professional growth and career development. It is not up to our employers to nurture our knowledge. We must each take the tactical steps necessary to ensure continued growth.

The legal profession is on a course of constant change. Law firms, in particular, used to be able to count on client loyalty and a sizable retainer from clients who regularly provided the firm with work, which in turn helped to reduce certain costs, such as marketing costs. Today, however, clients shop around and demand top legal services at reduced costs. They can often change counsel on a case by case bases. In today’s uncertain market, it has become increasingly important for paralegals to develop a strategic plan to keep their careers on the correct paths.

How will your job be different in five years? What will happen with the firm for which you work? We really don’t know what the future holds, but what we do know is that change is constant. Succeeding in a demanding, changing workplace requires a strategic career plan. Employers want to retain employees who provide the best value. Look at yourself as a business with a product to sell, and create a strategy for marketing your work-place value. You can employ a strategic process of improving your worth and setting new goals for your career path.

How do we keep that competitive edge? Below are some important steps you can take today to furture-proof your career.

Remain Tech-Savey

The skills you have today may not be sufficient for tomorrow. Much of the change today involves new technology. Technological skills are some of the most sought after skills in the present legal market. You will most likely find yourself at high risk of losing your job if you are without the technological understanding and ability. Paralegals must make themselves proficient with a growing array of word processing, spreadsheet, telecommunications, database, presentation and legal research software. Force yourself to keep your technical skills current.

Knowledge Is The Key

Learn all you can in the area of law in which you work in to set yourself apart. Distinguish yourself with your knowledge. Invest in additional education; read books and magazines; take webinars; and attend seminars and workshops. Determine what you need to know and learn; and work to overhaul your professional image. Participate in professional development; become a member of your local paralegal association which promotes professionalism, ethics and eduction for its members. Becoming a valuable paralegal involves expense, tuition, time and effort. A little investment of your own funds and time will pay lasting dividends for years to come. Pay for additional courses and take exams such as the PACE to validate your skill set and knowledge.

Cross Training

While it’s important to know all you can about the area of law in which you currently work, it is just as important to realize that in a down-economy, the type of work you do may need to shift to another area in the firm. For example, real estate work may have been plentiful in the past, but today, bankruptcy, collections and foreclosures have increased, and your help may be needed in those areas. If you can demonstrate your knowledge and willingness to make the change, you are ahead of the game.

Develop Transferrable Skills

Continue to work on developing transferable skills that are universally sought by employers. Leadership, communication, innovation, stress management, and interpersonal skills are fundamental requirements.

Create A Success Journal

This is important to think about when you are not looking for a job. Be proactive and take inventory of what you do well. Track you duties, projects and results.

Develop Resilience

B ecuause we don’t know what the future holds, setbacks are inevitable. Those who will emerge successful are the ones with the ability to bounce back. We have to develop our resilience skillsand use that resilience to meet the challenges that have become a regular part of our work. Resilience is your capacity to deal with stress, aversity and uncertainty. When we practice resilience, we are in a better position to adapt to ongoing changes.

Be Proactive

Let’s face it: some attorneys do not utilize paralegals effectively. They just do not know what type of work to give paralegals. Take the initiative and seek out substantive work. Know all you need to know and understand about the area of law in which you work. This in turn will demonstrate your abilities, and the profitability for the firm will increase. Effective paralegal utilization equals increased profitability. Avoid limits on the scope of your position. Seek new assignments and challenges. Find a niche area of expertise and become that go-to person.


You cannot underestimate the importance of communication with the clients you serve. It is fundamental to the practice of law. Paralegals serve as an important liaison between clients, experts, vendors and other legal professionals. Keep communication with clients a top priority. Return calls promptly and keep clients updated on their cases. Happy clients also make happy bosses.

Work With Passion

Be passionate about your work and you will have the greatest chance of success. I believe paralegals are passionate people We believe in what we do, and we believe that our work makes a difference in the lives of others. It is that very passion that drives us to be the best that we can be. When we work with passion, we work harder, have more energy, get more creative and most of all we inspire others who work along side us.

With the New Year well underway, which promises to be filled with challenges and uncertainties, now is the time to focus on your personal strategic plan to future prof your career. As Judge Judy accurately declares, “The time to change was yesterday; the time to wake up is now.”

Beth Hill has been a paralegal for 26 years specializing in Estate Administration, Estate Planning, Tursts an Trust Administration. She is currently employed at the law firm of Burt, Blee, Dixon, Sutton & Bloom, LLP in Fort Wayne, Indiana. She currently serves as the Vice President and Secondary Representative of the Northeast Indiana Paralegal Association. She can be reached as

What Interns Do May Determine What They Are Due

By Monica Levine Lacks

What Interns Do May Determine What They Are Due

What are interns doing in your business?

For college students, summer often means the temporary retirement of books and backpacks, and the chance to “play grown-up” with a resume-building internship. And for the businesses and institutions who retain and train these future “grown-ups,” summer may bring an opportunity to utilize low-cost or no-cost labor to accomplish outstanding tasks, while grooming potential members of their future workforce. Or maybe not. Lawsuits challenging the legality of unpaid and “underpaid” internships under the Fair Labor Standards Act, and a six-factor test issued by the U.S. Department of Labor, raise questions as to whether interns must be paid in accordance with U.S. wage and hour laws, and their state equivalents (in Ohio, R.C. 4111.01 et seq). Among the factors that may present the greatest hurdle for employers are that the internship – which must be “similar to training which would be given in an educational environment” – also be “for the benefit of the intern” and that that the employer derive “no immediate advantage” from the intern’s activities.

These and other factors have formed the basis for a number of class actions against employers utilizing summer and longer-term interns. In April 2010, the U.S. Wage and Hour Division published Fact Sheet No. 71, articulating six factors to help “for-profit” sector employers determine whether interns must be paid under the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA). The criteria include:

  1. That the internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship;
  6. The employer and the intern understand that the intern is not entitled to wages for time spent in the internship

To show that an employment relationship does not exist (and that the FLSA’s minimum wage and overtime requirements do not apply to the intern), all six of the factors must be met. Notably, the Wage and Hour Division has pointed out that the requirements do not apply to internships in the public sector and for non-profit charitable organizations.
Granting in part the plaintiff’s motion for summary judgment, and conditionally certifying a class of plaintiffs under the FLSA, the United States District Court in Glatt v. Fox Searchlight Pictures, Inc., S.D.N.Y. No. 11-06784, 6/11/13, rejected the employer’s position that its unpaid interns met the six-factor test. As a result, the court found that two interns working on the set of the movie “Black Swan” were misclassified as unpaid interns and were entitled to damages under the FLSA and its New York state equivalent. As to the first factor, the court emphasized that, while classroom training is not a prerequisite, “internships must provide something beyond on-the-job training that employees receive.” In Glatt, the subject interns “did not acquire any new skills aside from those specific to the [the employer’s] back office, such as how it watermarked scripts or how the photocopier or coffee maker operated.” Addressing the second factor, the “benefit of the intern,” the court pointed out that while the plaintiffs received some benefits from their internships, such as resume listings, job references, and an understanding of how a production office works, those benefits were “incidental” to working in the office like any other employee. Because the employer received the benefits of their unpaid work, which would otherwise have required paid employees, the employer, not he plaintiffs, primarily benefited from the relationship.

The court found that the third factor – regarding the displacement of regular employees – was not met because the interns performed administrative tasks that might otherwise have been done by paid employees, such as reconciling invoices, drafting cover letters, organizing file cabinets, making photocopies, and running errands. For these reasons, the employer obtained an immediate advantage from the interns’ work (the fourth factor). The fifth factor – that the interns knew they were not entitled to a job at the end of the internship – was satisfied by the employer.

The undisputed fact that the interns knew they would not be paid (the sixth factor) may be of particular interest to employers. The court observed that this fact added little, “because the FLSA does not allow employees to waive their entitlement to wages.” In short, an understanding between the employer and the intern that the internship is unpaid will afford an employer little if any protection.

The Glatt court distinguished the facts before it from the “trainee” exception established in Walling v. Portland Terminal Co., 330 U.S. 148 (1947). In Walling, the United States Supreme Court held that “trainees” attending a week-long course for prospective railroad breakmen were not employees covered by the FLSA. The program in that case was used purely as a training device for the trainees’ benefit; did not expedite company business; and occasionally impeded it. Accepting the “unchallenged findings” that the railroads obtained no “immediate advantage” from the trainees’ work, the Supreme Court concluded that they were not employees under the FLSA. Walling, 330 U.S. at 153.

In November 2013, the Glatt defendants’ interlocutory appeal of the trial court’s summary judgment order was certified by the United States Court of Appeals for the Second Circuit. Significantly, in February 2014, the court of Appeals denied appellants’ motion to stay pending appeal the district court’s ordering permitting issuance of notice to putative class members, creating further challenges and costs for the appellants. While the district court’s conclusions remain subject to change, its findings suggest that employers will be closely scrutinized under the six factor test regardless.

Such was the case in the Northern District of New York, where another putative class of interns sought damages under the FLSA and its New York equivalent. The plaintiff in Kozik v. Hamilton College, C.A. No. 6:12-cv-1870 (LEK/TWD), brought an FLSA action alleging that interns in Hamilton College’s athletic department were working long hours – sometimes 80 or more hours per week – with the college’s varsity sports programs, performing the same jobs as fully paid assistant coaches. The interns, who were not students at the college, alleged that they received flat pay at monthly or other intervals at a rate well below minimum wage and overtime provisions. During their “in season” varsity sports, interns allegedly were required to travel with their assigned teams, often working ten hours or longer at a time. During the off-season, they were required to perform “game management duties” (arguably enabling the college to avoid hiring workers for games), as well as participating in recruiting activities and showcases and camps. The lead plaintiff maintained that the interns’ salaries of $1100 per month or $275 per week resulted in an effective hourly wage of as little as $2.60 in some weeks, and that they never received overtime pay. Kozik settled in January 2014, while the plaintiff’s motion for conditional collective action certification was pending, and four months before trial.

A number of other lawsuits have been brought by putative classes of interns – all alleging that they were unpaid or underpaid in violation of the FLSA. While the litigation stems primarily from the state of New York, the federal coverage of the FLSA potentially exposes employers nationwide to litigation and potential damages resulting from alleged misclassification of interns. Employers – many of whom seek to create relationships of mutual benefit by hiring student interns for the summer or longer terms – are well advised to scrutinize those arrangements to determine their wage and hour obligations, if any, under the FLSA and their analogous state laws.

Monica Levine Lacks is a Cleveland attorney. She has an extensive background in labor and employment law, as well as ERISA denial of benefits litigation. She annually participates in the CMBA Bench-Bar Run for Justice. She has been a member of the Cleveland Metropolitan Bar Association since 2006. Monica can be contacted at

**Printed by permission of the Cleveland Metropolitan Bar Association**

The Importance of Networking and Growing Future Leaders

by Debra Hindin-King

The Importance of Netowrking and Growing Future Leaders

Networking can be an important part of your professional life.

How often have you heard that networking with other paralegals will enhance your circle of friends and make your life more rewarding? Paralegals routinely rate very highly the importance of networking within their profession. Numerous paralegals feel it is a top priority to enlarge their circle of friends, as well as a member benefit of their association. I have certainly found that to be true throughout my career, even today when I consider myself “seasoned” in the field.

My networking experiences have allowed me to become acquainted either virtually (LinkedIn, Facebook, Twitter) or in person with so many talented and gifted paralegals across the country. Often times I am in need of a referral for a court reporter, process server or an office in which to hold a mediation outside my home state. Through my network, I routinely connect with my paralegal friends to request assistance with such matters. Getting a trusted referral is so much easier and quicker than having your fingers do the walking through the yellow pages or spending time surfing the internet!

Attending professional events such as conventions and CLEs will also allow you to widen your circle of professional acquaintances. Many of the exhibitors at a convention may be helpful to you in future projects. Even though you may not be the sole decision maker when hiring an exhibitor for a project, you familiarity with these vendors may make it easier in the future to reconnect when the need is ripe. Often times at CLEs, an opportunity to network with other attendees may allow you to expand your circle of resources. Get to know those who have similar interests and passions about the paralegal profession; no price tag can ever be placed on the value of this experience.

Consider joining a paralegal organization or another legal professional group. It is amazing how quickly you will get to know others with similar interests and passions. Don’t be afraid to take on a leadership role within the group. Working with others toward a common goal is extremely rewarding, not only for you but for the organization as well. At the end of the day, you will feel better about yourself, and that your time spent was worthwhile in helping the group to succeed. In addition, nonprofit legal organizations are always looking for committed volunteers and leaders, representing yet another resource to connect with people who may have similar interests!

Leadership Management Styles

Do you need a B12 shot to help you become an effective leader utilizing your newly acquired networking skills? Consider various styles of leadership. What differences exist among various generations of leaders, ranging from Baby Boomers right up to Generations X, Y and Millennials?

Typically, younger generations seek rewarding work, flexible hours, more vacation time, and continuous training—and they don’t like someone watching too closely to check their progress. These workers and leaders want a less structured approach to management, as opposed to climbing the hierarchy of the corporate ladder. Often, younger workers may be ready to leave one job and move into something better in a very short period of time. Compare that to Baby Boomers, who view long hours as evidence of hard work and loyalty, and who may prefer more structure within the work environment. Historically, Baby Boomers tend to be less likely to leave after just a few years with their employer.

Younger generations value teamwork and encourage collaboration on projects, which will hopefully lend itself to a more transparent and fluid management style as leaders in their respective organizations. Although technology plays a major role in all of our lives, face-to-face conversation continues to be one of the most valuable methods to convey ideas, exchange information, and formulate plans to allow organizations to pay forward the value of networking for future members.

Association Structure

The million dollar question is how to structure your association to ensure the new generation (“young hungry leaders”) want to stay. Consider some of these ideas: 1) offer ongoing leadership training; 2) increase benefits for those assuming leadership roles, (for example, provide greater recognition for an individual’s contributions by profiling emerging leaders in online association newsletters, local papers, or by sending a letter to a leader’s employer about his/her role in the organization, or by recognizing leaders at annual meetings and social events, etc.); 3) provide latitude in the decision making process; 4) gain the loyalty and respect from younger generations via transparent communication and ongoing support; 5) encourage all leaders and members to be “green” – we all want to protect our precious environment for future generations; and 6) grow and nurture talent by providing challenges to validate and show members loyalty.

Bridging the generation gap is and will always be a challenging situation as it relates to leadership within an organization. Effective leaders should encourage free thinking and sharing of opinions to ensure all members, particularly those in leadership roles, within the organization feel empowered, and are appreciated as valuable contributors. Successful leaders follow through on commitments and take ownership of their own actions, non-actions and mistakes.

Leaders are learners and like to help others succeed. As Dwight D. Eisenhower stated, leadership is “the art of getting someone else to do something you want done because he wants to do it.” A leader often times leads by example, whether he intends to do so or not. Does that sound familiar to you in your organization? And finally, as Henry Miller declared, “The real leader has no need to lead – he is content to point the way.”

The art of networking goes hand-in-hand with the development of the leaders of today and tomorrow. Seize the opportunities to retool your leadership skill-set to include the resource of networking with your peers – an experience that will provide you with a challenging path down the road in seeking leadership opportunities to pursue within your association.

Debra Hindin-King has been a litigation paralegal for 23 years specializing in oil and gas royalty and commercial litigation. She is currently employed at the law firm of Wheel Trigg O’Donnell LLP in Denver. She is member of the Advisory Council, Organization of Legal Professionals, Rocky Mountain Paralegal Association, National Federation of Paralegal Associations, Co-Chair of the Paralegal committee of the Colorado Bar Association and member of the Colorado Association of Litigation Support Professionals. She can be reached at

Reprinted by permission of the National Federation of Paralegal Associations

Attorneys Finding Their Edge with Texas Court Reporters

Attorneys Finding Their Edge with Texas Court Reporters

Technology can give today’s lawyers an advantage in their work.

Today’s legal professional needs every edge to perform in a demanding legal field. Attorneys are facing bigger client rosters and court dockets that are growing more crowded, and it is important for the lawyer to be able to perform at their very best. Texas court reporters are helping in this effort, by providing a number of new technologies that are revolutionizing the way attorneys work on their cases.

Travel can be a challenge for attorneys. Time spent on the road could be time spent working on cases, and that can be an issue in law firms of all sizes. For smaller firms, travel can also be a large expense. Videoconferencing allows attorneys to work from their firm and expand their reach anywhere in the country. It can be used to work with other attorneys, and it can also be used to conduct depositions remotely. Coupled with realtime reporting. Lawyers can now use this important tools to work with deponents and witnesses anywhere while saving money on travel.

Texas court reporting firms also have a number of ways to serve the traveling attorney. Conference rooms and online repositories can offer a place to work and a place to store documents. This makes the lawyer more effective and make travel far more productive.
These new tools are just a few of the innovations offered by today’s top court reporting companies. They can help enhance the work of today’s attorney so that they can focus their efforts on better serving their clients.