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 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

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.

Filing an Answer?

If you or your client has been served with a Summons and Complaint in a civil matter in California, here are some things to remember:

1. Time is of the essence. You have 30 days to respond unless it is an Unlawful Detainer action (eviction), in which case you have 5 days.

2. An “Answer” is one of several responsive pleadings that can be filed in response to a civil Complaint. The others include a General Denial, a Demurrer, and a Motion to Strike. If you are not sure which one to file or you have received unclear instruction from your supervising attorney, you should do a little research to find out which is the best choice under the circumstances.

3. The filing of the Answer requires a filing fee (check the court web site).

4.  The Answer must be served on the plaintiff and all other parties who have appeared in the action.  A proof of service showing a copy of it was served on the Plaintiff should be attached to the Answer when submitted for filing. counsel.  The Answer can be served on the plaintiff or counsel (if represented) by mail.

4. The Answer needs to be verified by the defendant if the Complaint was verified.

Be sure to follow the California Code of Civil Procedure and California Rules of Court when preparing, serving and filing your Answer or other responsive pleading.

Discovery: What is the Scope?

In litigation, after the pleadings are filed, the parties begin “Discovery”, the exchange and gathering of information in preparation for settlement or trial.

The scope of discovery is very broad.  The scope includes anything relevant to the subject matter, admissible or reasonably likely to lead to the discovery of admissible evidence, which is not privileged.

The words “anything” and “reasonably likely to lead to the discovery of admissible evidence” let you know that in discovery, going on a “fishing expedition” is entirely acceptable (assuming no privilege applies).  Almost anything can be shown to be “reasonably likely to lead to the discovery of admissible evidence.”

The take away from this discussion on the scope of discovery is that almost everything is within the scope.  The main boundary will be privilege.  In other words, an objection to discovery on the grounds that the items or information being requested are not relevant is likely to fail.

Venue: Knowing where to file

The proper place to file a lawsuit is called “venue”, and it is not always intuitive.  It is possible; however, to get venue information relatively easily and painlessly.  For Los Angeles County, you follow the following link:

http://www.lasuperiorcourt.org/FilingLocator/UI/filingSearch.aspx

It is only a matter of entering the relevant zip code or city name.

For Orange County, you need to access the court web site and go to the link for locations:

http://www.occourts.org/locations/index.html

From there, you can click on the Court Designation List and  find out what cities are served by each location and then file your matter in the correct location.

Filing in the wrong venue does not invalidate your lawsuit, but it might result in considerable expense and delay if the other side files a motion for change of venue because you filed in the wrong court.

Tips on Writing Briefs

The following are a series of blog posts with tips from a judge on writing briefs:

A Brief Browse on Briefs (Part 1)

A Brief Browse on Briefs (Part 2)

A Brief Browse on Briefs (Part 3)

Legal research and writing are two very important areas for a paralegal to develop especially if he or she desires to earn a higher salary.

Litigation – What’s involved?

Litigation (resolution of disputes through the legal system)

Pleadings

• Preliminary Matters (Standing to Sue, Capacity to Sue)
• Drafting Pleadings (California Rules of Court/Judicial Council Forms)
• Jurisdiction – Federal Subject Matter
• Jurisdiction – Personal
• Complaint
• Answer – Filing an Answer
• General Denial
• Demurrer
• Cross-Complaint

Discovery

• Scope (any matter, not privileged, relevant to the subject matter, admissible as evidence or reasonably calculated to lead to admissible evidence)
• Interrogatories (Form and Special)
• Demand for Production of Documents
• Request for Admissions
• Mental/Physical Exam
• Request for Statement of Damages
• subpoena

Motions

• Summary Judgment
• Discovery (Motion to Compel/Motion for Protective Order)

Alternative Dispute Resolution (ADR)

• Arbitration
• Mediation

Pre-Trial

• Motions in limine
• Final Status Conference
• Jury Selection (voir dire)

Trial

• Opening Statements
• Direct Examination
• Cross-Examination
• Re-Direct
• Closing Argument
• Jury Instructions

Post-Trial

• JNOV
• Motion for New Trial

Pre-litigation – What’s Involved?

Pre-litigation is a the first state of a civil lawsuit.  The following are customarily part of the pre-litigation process:

• Initial meeting with Attorney
• Personal Information (name, address, phone number, date of birth)
• Fact-gathering for basis of legal advice/opinions (e.g. date of accident, nature and extent of injuries, property damage, doctors, etc.)
• Setting fee/signing fee agreement
• Informal discovery (gathering information evidencing client’s claims)
• Demand Letter (attempt to settle case before filing Complaint)

Before filing a Complaint (and incurring the expense of filing and service), attorneys will typically try to settle the matter assuming the statute of limitations is not about to run.  In order to make a meaningful settlement demand, it is important that as much information (facts) as possible is gathered.  Paralegals are frequently involved heavily in the pre-litigation process.

Before You File

Before filing a civil complaint, what issues should the paralegal be considering?

The following are two important things to consider:

Subject Matter Jurisdiction

• State or Federal

1. If federal, is it a federal question?  (Arising out of the Constitution, Laws and Treaties of the U.S.?)
2. If federal, is it based on Diversity Jurisdiction?  (Diversity of Citizenship and over $75,000 in controversy?
3. If state, is it unlimited (over $25,000 in damages) or limited (under $25,000.00 in damages).

• Special Issues in state court

1. If state court, it something that must be filed in the unlimited jurisdiction court, e.g. Domestic Matters, Probate, Trusts, Guardianships, and Conservatorships.
2. If state court, is it something that could be filed in small claims court, e.g. under $7,500 for an individual.

Personal Jurisdiction

• Resident defendant
• Non-resident defendant

1. In rem jurisdiction (over real property in the state)
2. Quasi in rem jurisdiction (over personal property in the state)
3. Long-arm statute (minimum contacts)