Legal Writing – Declarations

In the last two posts, we discussed some of the key points about legal correspondence.  This post will be dedicated to exploring the uses and construction of a declaration.

The declaration is a legal document that provides the factual support for a legal argument.  It is most frequently attached to a motion or other request for relief.   It is the means by which the facts are put before the court in a way that is acceptable under the court rules.

The declaration is signed under penalty of perjury which makes the facts being attested to acceptable to the court as support for the request being made.  Typically, you might have a motion for Summary Judgment or to Compel Discovery and attached to the motion, in addition to the Memorandum of Law, the Notice of Motion and any exhibits, would be a declaration of the attorney and/or the party attesting to the facts foundational to the legal arguments being made.

The following is typical of how a declaration would start:

I, ________________ [name of the declarant or person making the declaration], declare as follows:

1.  I am the ________________________[plaintiff, defendant, attorney for plaintiff or defendant, etc.]

This is a statement of the position of the declarant vis-a-vis the litigation.  It would identify any potential bias the declarant might have so the reader of the declaration could take that into account when weighing it.

A typical paragraph 1 for an attorney would be as follows:

• I am an attorney licensed to practice in all of the courts in the State of California, and I am the attorney of record for ___________ [plaintiff, defendant, petitioner, respondent, moving party] herein.   The information contained in this declaration is within my personal knowledge, and if called upon to testify to it, I could and would do so competently.

This paragraph establishes the personal knowledge and competency requirements for testimony.

The paragraphs which follow will lay out the foundational facts for the relief being requested.  The declaration could have 3 paragraphs or it could have 103 depending on the number of facts that need to be laid out.  It is best to have short paragraphs that establish one or two facts each.  The declaration ends with a statement that the declaration is signed under penalty of perjury.

The writing of declarations is part art and part science.  The stronger the writing, the more convincing and effective the declaration.  Writing strong declarations takes practice.  The ability to put together a coherent and cogent declaration is a skill highly desirable and sought after in a paralegal and in an attorney.

You’ve Got Mail – Legal Correspondence (Part 2)

In addition to knowing the structures and formalities of a business letter, a paralegal or legal assistant, must be familiar with the types of legal correspondence common to the field or practice of law in which he or she is working.

The following is a non-exhaustive list of the types of correspondence that you might run across in a civil litigation practice:

• Transmittal Letter - letter used to send documents or information to the client.  It is relatively short and should include a description of whatever is being transmitted or sent to the client.
• Confirmation Letter – letter used to confirm information, conversations, and/or important dates to the client.  Typically it will follow a conversation or meeting with the client.
• Demand Letter – letter used to outline the client’s claims/demands for settlement.  Typically such a letter will provide detailed information about amounts incurred, injuries sustained, damages or other information relevant to the client’s claim.  The letter will also outline the relevant law and the client’s rights arising out of the law/legal relationship.  Often a demand letter will include a dollar amount or other terms of settlement.
• Notice of Termination of Relationship – this letter is used by the lawyer to send notice to the client that he or she is no longer the attorney for the client.  This may be sent after a meeting with a potential client during which the lawyer determined he or she was unable or unwilling to represent the client.  It may also be used where the relationship between the lawyer and the client has broken down, and the lawyer is no longer ethically able to continue the representation.
• Conflict Letter – this letter may be used by the attorney to notify potential and/or prior clients that a potential conflict of interest exists between the clients that may impact the attorney’s representation of one or both of the clients.  Typically such a letter will include a waiver of the potential conflict for the parties to sign.

You’ve Got Mail – Legal Correspondence in review

Legal Writing, as indicated in the prior post, consists of 3 basic categories:

• Correspondence
• Declarations
• Legal Memorandum

The category to be addressed in this post is correspondence. At a very minimum, a paralegal should know the basics of business letter writing and the special applications that it has in the legal environment.

The first thing to consider is the purpose of a business letter.  In a legal environment, a business letter might be used for any of the following purposes:

• Communicate factual information
• Send documents to client, counsel or the court (transmittal letter)
• Confirm important dates and appointments
• Request information from client or opposing counsel
• Confirm information provided to a client, service provider or opposing attorney
• Summarize a legal opinion of the attorney regarding a client’s rights and/or obligations (Opinion Letter)
• Initiate Settlement (Demand Letter)

In preparing any of the above letters, the paralegal must follow one of the recognized format for business letters.  The best choice is whatever the office is already using.  Even if you feel your format is superior, wait at least 60 days from your hiring to suggest a change.

A business letter should contain all of the following:

• Letterhead (name and contact information for person sending the letter)
• Date
• Name and address of person to whom the letter is being sent
• Reference Line (brief statement of the subject matter to be addressed)
• Salutation (“Dear Mr. Smith,”)
• Body of the Letter (meat and potatoes of the communication)
• Closing (“Sincerely,”  ”Yours very truly,” etc.)
• Signature
• Notation regarding copies and enclosures, if any

Legal Writing – What’s it all about?

Many paralegals (and even some lawyers) report writing as the weakest skill area, especially legal writing.

Legal writing (writing done most often by lawyers and paralegals) breaks down into the following categories:

• Correspondence (letters, emails, inter-office memos regarding facts)
• Declarations (used as factual support of motions or other documents files with the court)
• Memoranda of Law (persuasive or objective analysis of a legal issue with supporting primary sources of law)

These categories cover about 90% of the writing done by lawyers and paralegals.  Each of these categories of writing requires a slightly different set of writing skills in addition to the basics of spelling, punctuation, grammar, structure and style.  Mastering all three is essential for a successful paralegal.

Several upcoming posts will go into more detail about each type of writing.  Feel free to post specific questions if you have them.

Legal Ethics – More on UPL (Unauthorized Practice of Law)

The California Rules of Professional Conduct (CRPC) which apply to lawyers in California and by extension their support staff including paralegals provides the following on UPL (Unauthorized Practice of Law):

Rule 1-300 Unauthorized Practice of Law

(A) A member shall not aid any person or entity in the unauthorized practice of law.

(B) A member shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction

This, of course, is to be read in concert with the prohibition in Business and Professions code 6450. The bottom line for the paralegal is that not only can he or she not engage in UPL, but also they cannot aid or assist anyone in UPL. This is an area in which paralegals need to be vigilant to avoid trouble and potential liability.

Legal Ethics – Confidentiality

In California, attorney ethics are governed by the California Rules of Professional Conduct. Specifically, California Rule of Professional Conduct (CRPC) 3-100 provides in relevant part: (A) A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule.

California Business and Professions Code section 6068(e)(1) states it is the duty of an attorney “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”

These two sections read in concert outline the duties of an attorney with regard to confidentiality.

An exception to keeping client confidences is carved out for clients who engage in criminal conduct, but most situations will be governed by the general rule that an attorney (and all those working for the attorney) are required to keep all client information confidential. One of the underlying purposes for client confidentiality is to allow clients to feel they can safely tell the details of their situation to the attorney which, in turn, allows the attorney to better represent the client.

A related issue is the issue of the attorney-client privilege, which is actually an evidentiary issue rather than an ethical issue.

For Paralegals in California, the ethical rules that govern paralegal conduct are the same as those which govern attorney conduct in the state. Therefore, Paralegals must keep all client information confidential. This can sometimes be challenging when a good client story comes along, but consider that you could be the client of an attorney one day, and you would certainly not want your “story” being repeated to friends and relatives of the office staff. Keep quiet!

Paralegal Essentials – Contention Interrogatories

There is a sub-set of Special Interrogatories known as Contention Interrogatories.  Proper drafting this type of interrogatory is very important for discovery.  It is part art and part science.  The following is a good article which gives some valuable information and samples of this type of interrogatory.  The one drawback is that it is written for plaintiff’s counsel.   As with all information, you must filter and apply it to the type of work you are doing at the time.  Not everything will be applicable or helpful.

Everything the Plaintiff’s Lawyer Needs to Know About Contention Interrogatories

Legal Writing – Citations

When you are writing a Legal Memorandum, it is important to use the correct citation format.  Citations allow the reader to verify the statements about the law you are making and the to locate the quotations that you give.  The following are some basic rules of citation:

Parts of the citation –  Brown v. Board of Education, 347 U.S. 483 (1954).

• Brown v. Board of Education – Case name
• 347 – Volume number in which case is found
• U.S. – Name of the Reporter in which the case is found
• 483 – Page in the Reporter on which the case begins
• 1954 – The date of the decision

Every citation that you have for a case should have all of these parts.

Unauthorized Practice of Law (UPL)

An area in which California paralegals often get into trouble if they are not careful is UPL (Unauthorized Practice of Law). According to California Business and Professions Code section 6450, paralegals in California shall not do the following:

Provide legal Advice
Represent a client in court
Select, explain, draft or recommend the use of any legal document to or for any person other than the attorney who directs and supervises the paralegal.
Act as a runner or capper, as defined in Sections 6151 and 6152.
Engage in conduct that constitutes the practice of law
Contract with or be employed by, a natural person other than an attorney to perform paralegal services.
In connection with providing paralegal services, induce a person to make an investment, purchase a financial product or service, or enter a transaction from which income or profit, or both, purportedly may be derived.
Established the fees to charge a client for the services the paralegal performs. . .

Paralegals need to learn this list of “shall not” conduct in order to avoid crossing the line into UPL. Paralegals, by definition, work for attorneys. They do not work for members of the public directly. Those who work for the public directly may not call themselves “paralegals.” This may be unpopular among some who call themselves “paralegals,” but it is the law.

Discovery: Objections

Here’s a good discussion of some of the more common discovery objections by CEB.

Shoot Back with 10 Discovery Objections