PARALEGALS, LAWYERS AND ADR SPECIALISTS: A WINNING COMBINATION

HON. FRANK G. EVANS AND M. CAMILLE MORRIS

It should be apparent that the modern litigator must manage and organize an effort resembling a military campaign. The foot soldiers in this organization will increasingly be paralegals, persons without law degrees who have training and/or excellence in assisting lawyers with the pretrial preparation of lawsuits. In some law firms there is one paralegal for each litigator.

-Marcus & Sherman, Complex Litigation, American Casebook Series¹

A Look at the Past

Whatever happened to the way we practiced law and tried cases in the past? Even in very important cases (some involving large sums of money), the lawyer trying the case would interview the client, do a bit of investigation, perhaps take a deposition or two, and then appear at the courthouse ready for trial. In those "good ole days" there were no legal support staff (except perhaps the lawyer's secretary), and the lawyer was expected to do all the preparatory work. Sometimes, the lawyer, with the help of a mechanical typewriter and carbon paper, drafted the pleadings, the jury issues, and the court's charge and judgment. In return for this "full service" treatment, the client paid the lawyer a "reasonable fee," which was based generally on the lawyer's time and the result ultimately obtained. This type of legal representation seemed to work pretty well...the client received personalized, individual legal help...and the lawyer received a fair compensation. Moreover, the legal profession seemed to have the public's general respect.

What happened to this good, simple way of life? Have disputes become so complex that one lawyer can no longer master the facts and the law? Has the proliferation of new legal claims, coupled with new state and federal discovery procedures, so complicated the justice system that more persons are needed to handle the additional volume? Or, have technological advances (intended to save lawyers time and expense) created a communication system that requires an even larger legal staff to administer?

These questions defy clear and certain answers. What may reasonably be concluded is that our legal system has grown to meet the expanding needs of society. In this growing process, lawyers have been compelled to adopt more efficient case management systems, and to stay competitive, they have turned to new technology and to specially trained legal specialists for their litigation support. These new specialists, the paralegals, have filled an important niche in the justice system, performing a wide variety of tasks formerly handled by law partners, their associates, and legal secretaries. As lawyers and their clients have learned the value that paralegals can provide as litigation support staff, there has been a general increase in their use and an expanding recognition of their permanent role in the legal profession.

A View of Tomorrow

Will the current trends of the legal profession result in a "paperless" legal system? In this age of the "virtual law office," will lawyers have to become more computer literate, causing a decline in the need for support staff? What does the future hold for the professional paralegal?

On a positive note, some law management writers predict that "as technology makes the practice of law more efficient, lawyers will be able to carry larger caseloads," and these larger caseloads, the writers conclude, mean greater need for the services of paralegals.² Paralegals who can design and manipulate databases and work with imaged documents will be powerful assets to attorneys and corporate legal departments in the future. Despite technological advances, there will always be a need for human beings who have excellent communication skills and strong analytical abilities. While machines may be able to reproduce the image of a document, they are not capable of interpreting the meaning of that document or of making inferences from its written words.³

Attorneys can make effective use of paralegals' services in a number of ways. For example, paralegals can provide valuable service in:

The initial client interview;
Investigative work, witness interviews, and document analysis;
Document coding; preparation of data base and software;
Development and coordination of exhibits;
Attendance at trials and ADR processes; handling clients and witnesses; coordination of documents; analysis and preservation of evidence.⁴

An effective use of paralegals frees the attorney's time for legal research, developing issues, drafting pleadings, and preparing strategies for trial and settlement. Indeed, well-trained paralegals can perform almost all that lawyers perform, except give legal advice, accept fees from a client, take depositions, and try cases.⁵

Paralegals and ADR

As a result of the nationwide alternative dispute resolution (ADR) movement, the legal profession has found new and innovative methods for resolving clients' disputes. In many cases, particularly large, complex disputes, these ADR processes provide perfect venues for the use of paralegals.

The rising cost of litigation and overcrowded court dockets have spurred a national movement toward ADR. While this has resulted in a decrease in the number of cases litigated, there remains a vital need for paralegals to assist with factual investigation and document organization and analysis work that is necessary to represent a client's interests successfully in a mediation or arbitration proceeding. Additionally, an increasing number of paralegals are now finding alternative careers in mediation and arbitration, experience that could be of great benefit to any attorney with whom they work in preparing a case for such a forum.⁶

It is a generally accepted fact that most clients now opt for prompt, reasonable settlements, as opposed to prolonged, costly litigation. The use of paralegals in arbitration and other ADR processes is especially appropriate when the size of the case requires extensive pre-trial preparation and document organization.⁷ Because paralegals can do much of the preparatory and organizational work in such a process, the client stands to save considerable money in legal fees.

Using Paralegals in Arbitration

Arbitration is an excellent dispute resolution process in which to involve trained paralegals. Indeed, "...paralegals can do more of the work in an arbitrated case, clients spend less money on legal fees and escape the court costs associated with trials."⁸ "It is just good common sense that arbitrations should be handled by the right combination of attorneys and paralegals at corresponding billing rates. This usually translates into staffing cases leanly and delegating routine work to less expensive attorneys and/or paralegals, while ensuring that the more senior attorney is aware of and is supervising all important aspects of the case."⁹

In preparation for the arbitration of a large complex dispute, it is especially important that document organization and analysis be accomplished early in the process. Every aspect of pre-hearing preparation is accelerated in an arbitration process, because the proceeding itself contemplates a sharply focused high-impact presentation. To help contain the costs of legal fees, paralegals can be used most effectively in the development of materials and in the efficient execution of the presentation.

A recent West Texas arbitration proceeding points up the value of using well-trained paralegals in arbitration and other ADR processes. In that case, the issue in dispute was the taxable value of a large producing gas field. Was the leasehold worth a billion dollars, as the taxing authority contended, or was it worth only half that amount, as claimed by the leasehold-owners? The parties' evidentiary presentation was extensive, requiring 18 days of testimony and many boxes of documentary exhibits. Because of the importance of the case, the attorneys labored under intense pressure and time constraints, and the voluminous nature of the documentary exhibits required a high degree of professional control.

Fortunately, from the very first day of the hearing, the paralegals proved their worth. Paralegal teams for each side had fully coordinated their pre-hearing preparation and their document organization and analysis. Moreover, each side's paralegal team came committed to work cooperatively with the other side's paralegal team, so there was high degree of collaborative effort and very little delay or confusion. As a result, the arbitration evidence was presented efficiently and effectively, and both sides, as well as the arbitrator, were saved substantial time and cost.

In large, complex cases, such as the arbitration described above, the organization, analysis, and presentation of evidence often requires "many hands." Usually, in such a case, there will be five or more persons on each side of the table, each having different functions and receiving different rates of compensation. Often, a party will be represented by one or more lead counsel and senior advisors, who are, in turn, supported by one or more "associate counsel" and/or "local counsel." Finally, the legal team will be supported by one or more paralegals and other support staff. Depending on the size and importance of the case, this combination of legal talent may cost the client in excess of $1000 per hour! Simple arithmetic demonstrates the obvious: clients and their counsel can save money by using trained paralegals to perform appropriate tasks.

Conclusion

Today, law firms of all sizes are being challenged "to make the best use of client assets and the attorney's time without sacrificing the quality and integrity of legal services."¹⁰ To meet this challenge, attorneys must work with their clients in developing strategies that accomplish their common goals. Attorneys who make intelligent use of paralegals in the resolution of the client's dispute through arbitration, mediation and other ADR methods can provide the client with a quality representation at a reasonable cost.

ENDNOTES

Richard L. Marcus & Edward F. Sherman, Complex Litigation, American Casebook Series, 2nd Ed. (1992), p. 545.
Jane Bourgoin & Sharon Davis, Paralegals: Powerful Performers in a Changing Legal World, 24 COLO.LAW.2193.
Id.
Id. at 2193-2194.
F. Dulin Kelly, Paralegals and Lawyers - A Team Approach, TRIAL, January 1, 1996.
Bourgoin & Davis, supra note 1, at 2194.
Wayne Parker, The Role of Secretaries is Growing, PACIFIC BUSINESS NEWS (Honolulu), June 24, 1996.
Id.
Terry R. Weiss, The Role of Outside Counsel in Securities Arbitration: Giving the Most Bank for the Buck, 900 PLI/CORP. 83, 93 (1995).
Harold S. Jacobowitz & Alan Jay Kaufman, Using Outside Counsel Cost-Effectively, BEST'S REV.-PROP.-CASUALTY INS. EDITION 73, VOL. 96, No. 9 (1996).

Hon. Frank G. Evans (Ret.) was appointed as Associate Justice of the First Court of Appeals in 1973 and was promoted to Chief Justice in 1981. Generally acknowledged as the father of ADR in Texas, he sponsored the 1987 Texas Alternative Dispute Resolution Procedures Act. Judge Evans was a member of the original American Bar Association Committee on ADR. Currently, he is the Executive Director for the Center for Legal Responsibility at South Texas College of Law. In addition, he serves as Chair of the Education Committee of the American Bar Association Section of Dispute Resolution, and is a member of the State Bar of Texas ADR Section and the Houston Bar ADR Committee's Conflict Management Task Force.

M. Camille Morris, a third year law student at South Texas College of Law, is a staff member with the Center for Legal Responsibility. Ms. Morris currently volunteers as a trainer in the Harris County Partners in Peer Mediation Program. Ms. Morris serves as Mid-Law Senator for the Student Bar Association of South Texas College of Law. She is also Vice-President of the alumni group "South Texas-Texas Exes." She is a member of the American Bar Association Law Student Division, and the State Bar of Texas Law Student Division. Ms. Morris received her Bachelor of Arts degree in Government from the University of Texas at Austin in 1994.