Video Conferencing: The Closest Thing to Being There

Video Conferencing: The Closest Thing to Being There

Videoconferencing allows the attorney to expand his or her reach.

by Eric Goldberg, Benchmark Reporting Agency

No one can deny that technology has revolutionized the way we do business. When the first video conference was introduced at the 1964 New York World’s Fair, it was a futuristic dream that few could imagine becoming a part of every day life. Today, businesses cannot imagine staying competitive without it.

Video conferencing gives law firms, attorneys, their clients and associates the opportunity to participate in real time, face-to-face meetings without the time or expense involved in travel. The quality, availability and high definition of video conferencing make it quick and easy for colleagues to communicate and share data without making a trip to the airport.

Just think of the time and expense you’ll save in travel––hours that can be spent, and billed, more productively. Your clients will also appreciate the ability to meet with you expediently. When video is added to a meeting, participants’ facial expressions of concern or satisfaction can be seen and addressed immediately, without the frustration of crossed emails or missed phone calls.

Not only is video conferencing convenient and sensible, it makes a compelling visual impact while cutting costs as you manage an ever-growing caseload. You’ll complete more meetings in a day, resulting in effective decisions and focused projects, thereby increasing productivity and profitability.

As a Principal of Benchmark Reporting Agency, Eric Goldberg oversees and is active in the day-to-day sales and marketing for the company. He also coordinates all of Benchmark’s video conferencing and video streaming worldwide — nearly 5,000 deposition suite options. He has been with Benchmark since 2000 and knows the court reporters, the firm’s capabilities, and the most efficient way to serve clients’ needs. 

Kenny Zais, President of O’Brien & Levine Court Reporting, Featured in Two Important Online Articles

Kenny Zais, President of O’Brien & Levine Court Reporting, Featured in Two Important Online Articles

O’Brien and Levine is a leader in electronic legal services.

Kenny Zais, the president of O’Brien & Levine Court Reporting in Boston, MA, is being featured online in two blogs. Read Kenny Zais’ thoughts about how legal professionals are working with electronic exhibits here and read how O’Brien & Levine is leading the way with electronic depositions here.

Protecting Privacy Within E-Discovery Deadlines

Protecting Privacy Within E-Discovery Deadlines

Most discovery is handled electronically.

By Karen Whalen

A complete and competent review of the clients’ electronic documents for confidential materials may be impossible to accomplish within the strict discovery deadlines, making privacy difficult to protect. Electronic discovery is the only form of discovery today – clients no longer retain folders of documents in a filing cabinet. They only maintain an electronic file. Yet, the deadlines for document production remain the same as when paper discovery was the norm.

Clients may hand their attorneys a hard drive (or multiple hard drives) of electronic record that include voluminous .pst files of all emails on the subject matter or project – including emails to and from their personal attorneys, corporate attorneys or even the attorneys who were provided with the hard drives to respond to discovery. Paralegals are the ones who are tasked with the job of culling from the clients’ electronic files the attorney-client communications and other privileged documents prior to the production of the records. How does the paralegal review electronic documents within the time constraints allowed by discovery – especially emails covering a long time period that can number in the tens of thousands, not counting attachments?

Software Programs Are Not the Sole Review Tool

There are many litigation software programs that manage electronic documents; however, no matter what method is used. An eyes-on document review is involved somewhere in the process. Sophisticated programs include “predictive coding,” which locate documents similar to those which have been designated as privileged. There are tools to highlight certain key words, such as “litigation” and “claim,” plus attorney names, law firm names, and email addresses of counsel. However, clients forget to give you all the names of their personal attorneys, law firm email addresses may not have the word “law” in them, and even attorney signature blocks in emails may not identify the sender as legal counsel – so those types of communications are not easily identified and not captured by key term searches.

Another type of document not uncovered by a key word search is the non-relevant email, such as an invitation to a company picnic or a private social event. Worse yet (and unfortunately I have encountered this on more than one occasion) is the need to eliminate pornographic materials from client documents. Calendar invites to the company baseball game are innocuous, but off-color jokes and private photographs when included in a document production are an embarrassment and a terrible infringement of the client’s privacy. The client may be guilty of including such materials within the electronic files (most likely the emails are long forgotten by the client), but the client is relying on his attorney to protect his privacy. (I am using the masculine pronoun to include both genders, since this is not a gender-based phenomenon.)

In addition, even if the paralegal is using complex software, documents still need to be reviewed for content, since some privileges are not obvious to recognize and must be determined by a document reviewer. Therefore, regardless of the review platform, it is best practice to review the clients’ electronic documents one-by-one (called linear review) rather than relying on predictive coding or key word searches alone. The key word search is ideal for locating relevant client documents on the client’s servers and classifying critical documents within collections produced by other parties, plus it is an excellent aid for identifying privilege terms, but it should not be used as the only tool for a privilege review.

Privilege Review May Not Be Completed By Deadline

Tedious and time consuming, linear review involves scrolling through email chains of duplicate emails, examining email addresses to identify lawyers, and analyzing content in order to make complex decisions as to what is privileged and the basis for the privilege. Clients may forward emails from their attorneys to third parties, which waives the attorney-client communication privilege. This usually happens pre-litigation, before the representing attorney becomes involved and has the opportunity to advise the client not to forward emails containing legal advice. The privilege “in anticipation of litigation” requires legal analysis. In-house corporate attorneys wear several hats and it can be difficult to tell which communication is actually privileged. Often only a portion of the email is privileged. Keeping redactions consistent and tracking the basis for the privilege for inclusion in a privilege log can be laborious.

All of this e-discovery is expected to be completed within a fairly quick time period. Federal Rule of Civil Procedure 26(1)(C) states that the deadline for initial disclosures is within 14 days after the parties’ Rule 26(f) conference, which is supposed to take place as soon as practicable or at least 21 days before a scheduling conference. Therefore, the initial disclosures deadline is somewhat dependent on when the judge sets the scheduling conference, although most judges are eager to set those quickly. Federal Rule of Civil Procedure 34(b)(2)(A) states that the time to respond to requests for production of documents is 30 days after being served with the requests.

No matter how the deadline is calculated, there are occasions when it is impossible to perform a linear review within the deadline. Either the documents are produced without a page-by-page review, which is obviously not ideal, or extensions of time are agreed upon.

Rolling Productions by Agreement

Large productions are better managed if parties can agree to produce documents when reviews of subsets are completed, rather than by the discovery deadline. The email directory of the company president can be produced in an initial production, the email directory of the project manager in a supplemental, and so on. After all, it takes time to analyze the records that are produced by other parties. One can only ingest a voluminous production in sections, anyway. The disadvantage of rolling productions is that they can take several months to come to an end. There have been times when documents are still being produced as depositions are taking place – even of expert witnesses. Rolling production agreements often contain the caveat that if key documents are produced after critical depositions have taken place, deponents may be re-deposed to provide further testimony as to the documents from a later production. But, there are instances when document productions are compelled outside of the scope of litigation, when accommodations for rolling productions may not be an option.

Response Time for Subpoenas Can be Ridiculously Quick

Federal subpoenas are governed by Fed. R. Civ. P. 45(d)(3), which states that a subpoena may be quashed or modified if it fails to allow a reasonable time in which to comply. However, the rule is vague as to the actual time that is required to be given for compliance, except to state that objections must be served before the earlier of the time specified for compliance or within 14 days after the subpoena is served. Local federal rules may clarify this rule or impose different time restrictions or further clarify Rule 45. For example, a subpoena for a deposition must be served 14 days in advance of the appearance date per District of Colorado, Local Civil Rule 30.1. In any event, the deadline is not long enough for a voluminous electronic document production and allows no room for procrastination.

Attorneys may receive a phone call from a client, not a party to a lawsuit, who was served a month previously with a records subpoena to produce documents the next day, because the client delayed until the deadline was imminent before calling his attorney. An extension of time is sought, but the party requesting documents does not usually agree to several months of extra time, which is realistically the time production could take. In a worst case scenario, the client may not call his attorney before producing a hard drive of the electronic files pursuant to a records subpoena prior to the client being brought into the suit in an amended complaint or a third-party action. The client may not even mention that documents were produced pre-suit, and the lawyer is left to discover copies of his client’s records, including privileged documents, in production sets from other parties. Clients who do not think about contacting their attorneys before producing electronic files may not review their files for attorney-client communications before production.

I recently supervised a production set of our client’s documents that had already been produced by another attorney who represented the client before our firm entered an appearance. The documents were voluminous, in native format, included .pst files, and were not Bates-numbered. I sent the documents to a vendor for conversion to a universal format (.tif) and Bates-number branding, then re-produced the documents to all parties. They contained attorney-client communications. I did not review them before re-producing them. I knew better than that: even though the documents were already produced, privileged documents should not have passed through my hands and out the door. But, there you have it. It happens to all of us, and I’ve done this more times than I want to admit.

Clawback Is Inevitable

The Federal Rules of Civil Procedure anticipate the need for “clawback” – a vivid word used to describe the withdrawal of privileged documents from production. (See Fed. R. Civ. P. 26(b)((5)(B).) There are also many ethics opinions at the state level to cover situations in which clawback is necessary. However, if parties can agree in advance to a clawback procedure, it can prevent adversarial positions and motion work concerning disputes. Protective orders, scheduling orders and case management orders are the likely instruments to memorialize clawback agreements.

Software programs are invaluable tools, but should not be used as the sole process for reviewing documents for privilege, in spite of difficult-to-meet deadlines during electronic discovery. Examination of electronic documents page-by-page may seem too time consuming and lack the excitement of a page-turner novel, but it goes a lot further to insure the protection of the client’s privacy and to prevent the production of privileged documents.

Karen Whalen, ACP, RP, is a paralegal with more than 20 years of experience at Hall & Evans, L.L.C., in Denver, Colorado.  Ms. Whalen earned her B.S. degree from Northern Illinois University and her post-graduate paralegal certificate from Roosevelt University. She earned the ACP (Advanced Certified Paralegal in the Litigation Specialty) and PACE (Paralegal Advanced Competency Exam) registered paralegal credentials.  Ms. Whalen has previously presented CLE accredited seminars on ethics, legal writing, medical records evaluation, and trial preparation for the Institution for Paralegal Education, Half Moon, LLC, and the Colorado Bar Association.  Ms. Whalen has written articles for Facts & Findings and authors a regular column on “Technology” for The National Paralegal Reporter.

 

Your Facebook Password or Your Job?

Your Facebook Password or Your Job

Should your Facebook and other social media platforms be made accessible to employers?

By Eric Matusewitch, PHR, CAAP

Imagine you’re interviewing for a paralegal position. Your resume is polished. Your answers are crisp. The questioner seems impressed. Before the meeting is over, though, you’re asked to hand over your Face book username and password.

Sounds implausible, but it could happen. Recent reports of employers requesting that applicants turn over their social media passwords have grabbed headlines in Forbes, Fox News, CNN, and on many other media outlets and blogs. While this relatively new practice may aid employers in screening job applicants, it may also lead to legal challenges under various federal and state statutes.

No Law Prevents Asking for Passwords

No federal law prevents an employer from asking for an employee’s password to his or her social media websites. Legislation, though, has been introduced in Congress to address the issue. In March 2012, the House of Representatives rejected an amendment to the Federal Communications Commission Process Reform Act of 2012 (H.R. 3309) that would permit the Federal Communications Commission to enact rules prohibiting telecommuting companies from requiring job seekers to disclose passwords for social networking sites. One month later, the House also rejected an amendment to the Cyber Intelligence Sharing Protection Act (H.R. 2353), which similarly bars employers from demanding Face book and other social media passwords from applicants and employees.

Most recently, in February 2013, Representative Elliot Engel (D-NY) reintroduced stand-alone legislation – the Social Networking Online Protection Act (SNOPA, H.R. 537). SNOPA would make it unlawful for employers and institutions of higher education to require or request user names, passwords, or any other means for accessing private email accounts or personal accounts on any social networking website. The bill, which would subject employers to a civil penalty of not more than $10,000, was referred to the Committee on Education and the Workforce.

Privacy of FB Posts

Employers who request applicants’ and employees’ login information may be in violation of the Stored Communication Act (SCA) or the Computer Fraud and Abuse Act (CFAA). The SCA prohibits intentional access to electronic information without authorization or intentionally exceeding authorization to access electronic information, and CFAA prohibits intentional access to a computer without authorization to obtain information.

In 2013, a New Jersey federal district court held that an employee’s face book wall posts were protected by the SCA. An important factor in the court’s ruling was the fact that the employee had configured her privacy settings to restrict her posts to her Facebook “friends.”

In this case, a paramedic working for a hospital made an alleged inappropriate post on her password protected Facebook account. The post was forwarded by the paramedic’s Facebook friends to management who disciplined the paramedic because of the post. Subsequently, the employee filed a lawsuit claiming the management violated the SCA and the common law invasion of privacy tort.

While the court granted summary judgment in favor of hospital management because management had not solicited the post, it found that “when users make their Facebook wall posts are ‘configured to be private’ for purposes of the SCA. The Court notes that when it comes to privacy protection, the critical inquiry is whether Facebook users took steps to limit access to the information on the Facebook walls.” The decision has been hailed as a huge victory for privacy because it recognizes that employers may not require employers to turn over their digital user names, passwords or password protected digital content.

Furthermore, on March 26, 2012, Senators Richard Blumenthal (D-CT) and Charles Schumer (D-NY) sent letters to the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission calling on those agencies to investigate whether the practice of asking for Face book passwords during job interviews violates the SCA or the CFAA. In a press statement to accompany the release of those letters, Schumer said: “Employers have no right to ask job applicants for their house keys or to read their diaries – why should they be able to ask them for their Facebook passwords and gain unwarranted access to a trove of private information about what we like, what messages we send to people, or who we are friends with?” (The DOJ had not issued an opinion as of February 2014.)

In addition, requiring the disclosure of social media passwords of job applicants and employees opens the door to potential discrimination charges under federal and state civil rights laws. Job bias statutes such as the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act of 1964, prohibit an employer from making employment decisions based on factors like age, race, sex and physical condition—all things which, most likely would be readily revealed by even a quick perusal of a potential employee’s Facebook page. So, for example, if an employer used Facebook to discover that an applicant is being treated for cancer and rejects the job seeker for that reason, the employer would be susceptible to a discrimination claim under the ADA and parallel state and local statutes.

State legislatures have also jumped into this fray. In April 2012, Maryland became the first state to enact legislation prohibiting employers from asking prospective and current employees for access to password-protected material on their personal social media accounts. Since then 12 other states (Arkansas, California, Colorado, Illinois, Michigan, New Jersey, Nevada, New Mexico, Oregon, Utah, Vermont and Washington) have passed similar statutes. These laws generally prohibit employers from requesting or requiring job applicants or employees to:

  • Share their social media account names and passwords with the employers;
  • Log into their social media account(s) in the employer’s presence so that the employer can view the account (“shoulder surfing”); and
  • Befriend them on social media to gain access to their respective profiles.

These state laws also prohibit employers from retaliating or threatening to retaliate against job applicants or employees who refuse to comply with the employer’s request for access to an individual’s social media account. These statutes, however, carve out exceptions allowing employers to request an employee’s social media password when an employer is conducting an investigation into allegations of employee misconduct or illegal activity.

The enforcement procedures and penalties for violations of these statutes vary among the states. For example, Michigan, Utah and Washinton expressly provide a private right of action in the event of violation, although the other states are silent on this point. The penalty in Michigan is limited to $1,000 per occurrence, plus reasonable attorneys’ fees and costs. Utah caps awards at $500 per violation.

According to the National Conference of State Legislatures, as of February 6, 2014 similar bills had been introduced or were pending in at least 25 other states (including Florida, Georgia, Massachusetts, New York and Ohio).

Finally, employers who request or require that applicants and employees hand over their social media passwords must sidestep another minefield; social media websites’ terms of service. For example, section 4.8 of Facebook’s Statement of Rights and Responsibilities states “you will not share your password, let anyone else access your account, or do anything that might jeopardize the security of your account.” In a March 23, 2012 post on its website, Face book’s Chief Privacy Officer Erin Egan warned employers that Face book will “take action to protect the privacy and security of our users, whether by engaging policymakers, or where appropriate, by initiating legal action.”

Given the rapid legal developments in this area, employers should be extremely cautions about requesting or requiring an applicant’s or employee’s social media password(s). Many individuals currently live, or will soon live, in, “protected password” states. In addition, employers must be concerned that this practice may discourage otherwise qualified individuals from applying for job vacancies. Finally, asking employees or job applicants for their login information could generate negative media attention.

Eric Matusewitch, PHR, CAAP, is a member of the Montgomery County, Maryland Committee on Hate Violence (Office of Human Rights) and former deputy director of the New York City Equal Employment Practices Commission. He also taught courses on employment discrimination law for New York University and the Long Island University Paralegal Studies Program. Eric has written the Manager’s Handbook on Employment Discrimination Law (Andrews Publications, 2000). He was a member of the Advisory Boards of the Berkeley College Paralegal Studies Program and the New York City Paralegal Association. He holds Masters’ Degrees in Political Science and Library Science, and a Certificate in Paralegal Studies. He is certified as a Professional in Human Resources by the Society for Human Resource Management, and as an Affirmative Action Professional by the American Association for Affirmative Action. He may be reached at ematuse@aol.com.

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 http://www.clemetrobar.org/Green/.

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.

Conclusion

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.

Good, Better Best: Never Let It Rest

By Beth Hill

GOOD, BETTER, BEST, NEVER LET IT REST

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.

Communication

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 hill@burtblee.com

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 monica.lacks@gmail.com

**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 hindinking@wtotrial.com

Reprinted by permission of the National Federation of Paralegal Associations www.paralegals.org

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.

New Technology from Birmingham Court Reporters

 

New Technology from Birmingham Court Reporters

New technology from Birmingham court reporters gives attorneys new tools in their casework.

Birmingham court reporters are prepared to bring new technology to legal professionals that enable them to work with greater efficiency. This new technology can help eliminate some travel, make necessary travel more productive, and connect lawyers and their cases in new ways.

Connectivity is one of the cornerstones of the new innovations that Alabama court reporters can bring to law practices. It is the engine behind videoconferencing and the streaming of video, audio, and data that can change the way the attorney approaches his or her cases.

Lawyers can now work with co-counsel over secure, broadcast connections and enhance collaborative work. Legal professionals can also work on shared documents, photos, videos, and graphics that are shared online in password protected portals.

This same technology can be applied when the attorney must depose a witness. Remote depositions that use videoconferencing can help eliminate some travel, and realtime reporting is another key element of this technology. From the mouth of the deponent to the reporter’s equipment to the lawyer’s laptop or tablet, testimony moves at the speed of light. This gives the legal professional an unprecedented level of immediacy to their work.

More legal professionals are seeing how the innovations provided by today’s court reporters can be a way to enhance the dogged work of attorneys on behalf of their clients. This new technology can enhance the firm’s work and bring cases into the 21st century.