Authors' Note: Our paper was directed toward attorneys because we made our presentation to the attorneys attending the Advanced Family Law Drafting Course in San Antonio this past December. The two legal assistants on our panel wanted to title our presentation "Lawyers in the Drafting Process: Who Needs `Em?" However, due to ethical considerations, and our boss's instructions, we did not.If the attorney is dictating word-for-word the majority of all correspondence, pleadings, discovery requests, discovery responses, or other written documents generated in a family law case; if the attorney finds he/she is re-inventing the wheel every time a set of interrogatories is sent; if the attorney relies solely on his/her own handwritten notes to take to Court for a prove-up hearing on an agreed settlement; or, if the attorney continually relies on opposing counsel to draft final decrees and other closing papers because the attorney is too back-logged to get the work out before the year 2000, then your firm is failing to utilize the skills of competent paralegals.
Those of you who attended the Advanced Family Law Course in Dallas this past summer had the opportunity to hear the presentation by Brian L. Webb, Kay Redburn, Coye Conner, Jr., and Barbara Calcote of "The Effective Use of Legal Assistants: Making Time and Money (or, don't bring a knife to a gunfight)." Their presentation and the written materials included in the course notebook provide excellent examples of the many ways in which legal assistants can improve and streamline a law practice. In our presentation to the Advanced Family Law Drafting Course participants, we focused on a particular duty of the legal assistant: drafting. Drafting is one of the most important elements of the family law attorney's practice. If our agreements and orders are not clear, concise, and enforceable, we leave ourselves and our clients open for future litigation. If our discovery tools are not precise and accurate, they are worthless. If our discovery responses are not thorough, truthful, and accurate, we leave our clients open to additional expense, sanctions, and possibly adverse outcomes to their cases. If we cannot convey our clients' offers in written settlement proposals that are all-inclusive and clear, then we should not be surprised if we are misunderstood.
Words are the product of the legal profession. Attorneys are the butt of many a joke on that subject-and we have heard almost all of them. Attorneys have the reputation of using ten words when one would serve the purpose; or, of being deliberately confusing in order to mislead opponents or create business for themselves. We can assure you that in our legal practice, we try to do just the opposite and to have a product of which we can be proud.
As we stated above, if the attorneys in your firm re-invent the wheel each time an Original Petition for Divorce is filed, your firm is not using your skills and time wisely, and your clients are not receiving the best service at the best possible cost. No matter what type of software or word processing program is used in your office, a basic, permanent forms file (with back-up on disks) is a must. If your firm employs more than one attorney and/or legal assistant who work on the same types of cases, it is usually more efficient for the forms to be consistent in-house. That makes it easier for other attorneys and legal assistants in the office to access your files when necessary, and gives a uniform appearance to all work coming out of the firm.
We see drafting as a process that begins with the first telephone call. The information gathering which will eventually lead to the closing documents begins with this first call. The legal assistant takes down as much information as can be gleaned from that first call and passes it along to the attorney prior to the potential client's initial office visit.
The forms the first-time client completes at his/her initial consultation are used by the legal assistant to prepare the Original Petition for Divorce, Original Counterclaim for Divorce, Motion To Modify, or an appropriate Answer. By using a properly-completed form, the legal assistant will be able to draft these initial pleadings without a great deal of instruction from the attorney.
The documents we use to manage our clients' financial information and convey this information to the opposing parties are:
At the time our divorce clients make the decision to retain our firm, they are given a Family Law Handbook, which also includes detailed financial forms to complete. These forms are designed to elicit most of the information the legal assistant will need to prepare a rough draft of the client's sworn Inventory and Appraisement (our Financial Information Questionnaire) and for the attorney to evaluate any support issues (the Proposed Support Decision and Information form).
The drafting of discovery requests and responses is also a time-consuming and labor-intensive process. An attorney needs someone to give this the same kind of attention to detail and thoroughness that is required in the preparation of the financial information documents.
In our office, we have developed standard Interrogatories and Requests for Production of Documents that our legal assistants know to include in most circumstances. You should begin now to polish your standard discovery requests so that all you need do is send them out to the opposing party. We have standard interrogatories and document requests that are made in divorce suits, and a standard set that is used in child support modification or enforcement actions.
Do not rely solely on your form requests in each case, however. Just like snowflakes, no two family law cases are alike and the attorney and the legal assistant must consider whether or not specific requests or interrogatories, unique to the particular case, should be included.
Just as we have developed standard discovery requests, we have also developed a good, general set of objections. Our legal assistants know that certain requests and interrogatories are always improper and they have the appropriate objections at their fingertips, ready to be included in drafting the answers and responses.
In Gill Savings Association v. International Supply Co., Inc. 759 S.W.2d 697, 702 (Tex. App. - Dallas 1988, writ denied), the Court stated that a party can recover attorney's fees attributable to the legal assistant's work while properly supervised by an attorney. However, the party must meet the burden necessary to prove up those fees.
In order to prove up legal assistants' fees, the attorney is designated as an expert in the discovery responses and must be able to produce your client's billing statements to confirm the date, timekeeper, service performed and legal assistant's hourly rate. The party has the burden of proving up those fees. If you keep your time records in identical form to that of the attorneys, then it should be a simple matter to present the supporting evidence to the Court. Our hourly rates are specified in our attorney fee contracts which all clients receive and are required to sign at the inception of a new case.
We have learned that good letter-writing is an art. We try to maintain the old-fashioned standards for writing a good business letter that we learned back in high school typing class (when some of us learned on manual typewriters). Courtesy, clarity, and brevity are all qualities that we strive for in our professional, written communications.
Even more important than your communication with opposing counsel is your communication with your own clients. Again, do not rely on your telephone or office conversations to convey all of the facts and information you would like your clients to have. Most family law clients are too emotionally involved to absorb everything you tell them, and having a clear and detailed paper trail is crucial to effective client relations. We make certain that the clients receive copies of everything that comes in and goes out of our office in connection with their cases, and that instructions we give them and advice given by the attorneys are set out in writing. Our goal is to communicate new information to our clients within 24 hours from the time it comes in to our office.
When one of our attorneys meets with a client to discuss and formulate a settlement proposal (or a response to a settlement proposal from the opposing party), the attorney either gives written notes or dictates an outline of the proposal to the legal assistant for preparation of a formal proposal letter. The legal assistant uses these notes as the framework for the proposal letter, but develops it and "fleshes it out" to make the letter as all-encompassing as possible. The rough draft is then reviewed by both the attorney and the client for revision and approval before the finished proposal letter is sent to the opposing attorney.
The new ADR requirements will make position papers a familiar tool to most family law attorneys, although we have been using them for some time now. Most mediators with whom we work require each side to present an informal position paper to the mediator prior to a mediation session. Our legal assistants prepare the rough drafts of the position papers and submit them to the attorney and the client for review and approval, so that the information can be given to the mediator prior to the session. Our position papers usually follow a letter format, often with a spreadsheet attached to illustrate our client's proposal for division of property. However, there is usually more background information included in a position paper than would be set out in a settlement proposal, and this information is usually confidential and for the mediator's background preparation only.
The closing documents are probably the most important pieces of paperwork to come out of the office. Whether you are attempting to reduce the Court's order to writing or to memorialize the parties' settlement agreement, your clients will be living under the terms of these documents for years to come. Proper compliance with and enforcement of these orders hinge on the drafting of the closing papers.
We have found that no matter how complete we keep our forms file, the forms we use for drafting final orders changes with each case. We learn something new from each case, and from every document drafted by an opposing attorney. Drafting is one area in which plagiarism is freely and unashamedly practiced. This is the document that your client will have to live with for years to come. Make sure that it is accurate, complete and as concise as possible. Drafting is one area, especially in the area of family law, where a legal assistant can make themselves indispensable. Use all of the tools available to you, and shine!