Hot "Cites"

Collections can be a challenge for any legal assistant. In criminal law you need compassion, consistency and creativity.

There is precedent in criminal law for payment in kind. In To Kill a Mockingbird©, Harper Lee describes Atticus Finch’s household the morning after the jury found Tom Robinson guilty, despite Atticus’s noble effort:

"It’s not time to worry yet," Atticus reassured Jem, as they went to the dining room. "We’re not through yet. There’ll be an appeal, you can count on that. Gracious alive, Cal, what’s all this?" He was staring at his breakfast plate.

Calpurnia said, "Tom Robinson’s daddy sent you along this chicken this morning. I fixed it."

"You tell him I’m proud to get it—bet they don’t have chicken for breakfast at the White House. What are these?"

Atticus looked up at her, puzzled, and she said, "You better step out here and see what’s in the kitchen, Mr. Finch."

We followed him. The kitchen table was loaded with enough food to bury the family: hunks of salt pork, tomatoes, beans, even scuppernong. Atticus grinned when he found a jar of pickled pigs’ knuckles. "Reckon Aunty’ll let me eat these in the diningroom?"

Calpurnia said, "This was all round the back steps when I got here this morning. They—they ‘preciate what you did, Mr. Finch. They—they aren’t overstepping’ themselves are they?"

Atticus’s eyes filled with tears. He did not speak for a moment. "Tell them I’m very grateful," he said. "Tell them—tell them they must never do this again. Times are too hard."*

In the 11 years I’ve worked for David Sheppard, a criminal defense solo practitioner, there have been occasions when legal services were swapped for goods to make ends meet. When I was first hired, every Friday a frozen fish truck made a delivery in lieu of payment. Being raised Catholic, I took this as a sign I had come to the right place. It was around that time I began calling my boss, "The Good Sheppard."

In the early days of his career Mr. Sheppard matched the sweat of his legal brow to his clients’ labors roofing, carpeting, wiring and painting his first fixer-upper. Nowadays, high-tech defendants offer computer instruction or web page design. Generally, we turn these down. We feel uneasy giving a client access to our computers even though they profess, "I love you. I’ve developed an attachment for you."

There are other times we politely say no. Any deal that begins, "Forgetaboutit, it just fell offa’ da’ truck," or "I have genuine synthetic ..." or "See this Rolex, you could pawn it for a lot of dough."

Some exchanges have a past... My boss was given his choice of any piece of furniture in a client’s antique store. A beautiful bookcase graces his office. Now, why couldn’t that guy be a recidivist? ...Or a future one. Mr. Sheppard has received artwork and photographs. What if the artist becomes super famous and the painting escalates in value because it was from his pre-prison- period and as Dr. Evil would say, "It’s worth one million dollars." That’s what I call art appreciation!

Sometimes the payment fits the crime. One morning our pipe bomber popped in unexpectedly. (Yes, he did have Ted Kazinsky hair now that you mention it.) He held a large contraption of pipes wired in an odd fashion. We hit the deck. Actually, he had made a wind chime out of leftover parts which he smilingly offered as partial payment. We said no thanks then called our loved ones and told them how much they meant to us.

I benefit, too. Thanks to clients I have a homemade BBQ pit. I have earrings a death row inmate made in his art class. I have a name plate that a prisoner made when he was supposed to be pressing license plates. I have saddlebags. No, not the leather, horsey kind, the sort you get from pies and cookies and a four pound chocolate cake.

Speaking of food: Client owes $5,000. He doesn’t pay and doesn’t pay. Then one bright summer day he stops by holding two sacks of homegrown tomatoes and he thinks we’re even-Steven. I tell him, "You say to-mat-o, I say your balance is $4,990."

In ‘Let’s Make a Deal Law’ you never know if what’s behind Door #1 is really a prize. Mr. Sheppard received two parcels of land for representing a client against serious felony charges. The case went to trial and the defense won. The client is a free man. Meanwhile, my boss paid the taxes on those tracts for about 10 years before selling them and maybe breaking even. Hint: be on the lookout for words like floodplain or swampland.

Door #2 held a sporty white Porsche from an alleged federal offender. The car was sold and the price applied to his bill. The Porsche needed engine work but the bankruptcy attorney who bought it was a shade tree mechanic. Again, a hard fought battle and victory in court. My boss gained experience. Client had his liberty. The purchaser is still covered with grease and on a good day the Porsche runs. Win-win for everyone except the buyer’s wife—whose car will never be repaired.

Door #3 hides the jackpot. Around Father’s Day and Thanksgiving, cards arrive from clients in the penitentiary. The notes read "Thanks for being on my side," "I appreciate you," "2 years, 4 months, 3 days to go. I’ll make it." With limited commissary funds and time to harden, their messages are priceless. Criminal law may not make you rich but it is very rewarding.

Atticus had pickled pigs’ knuckles, Mr. Sheppard has barters, and I’m waiting for a manicurist to go on a crime spree.

Elizabeth Elliott is TBLS Board Certified in Criminal Law. Her Associate of Applied Science Legal Assistant degree is from Austin Community College and she studied psychology at New Mexico State University. She is a member of the State Bar of Texas Legal Assistants Division and was the 1997 Legal Assistant of the Year for the Capital Area Paralegal Association. Elizabeth celebrates her 11th anniversary as legal assistant for David A. Sheppard in July.

Well, it all started when a desperate-looking associate burst through the door to my office, which had been closed for a reason: I was leaving the next day to go out of town on vacation, I had a stack of work to be done before I left and a board meeting to attend that evening. "Please, you’ve got to help me," he pleaded. "My paralegal can’t come to trial tomorrow and I need help selecting a jury." "But," I said, "I don’t do litigation—I’m the real estate/corporate type, plus I’m leaving to go out of town on vacation tomorrow," and I glanced meaningfully at the stack of work on my desk. "That’s okay!" he responded. "I know you are very thorough, and I just need someone to help me take notes . . . I promise it won’t take more than a couple of hours

. . . and I really need the help . . . you’ll be great. Please say you’ll help me." Now, how can you refuse to help when someone is really in need? Surely I could spare a couple of hours. Besides, anyone who has raised a teenager has developed a keen ability to judge character which would be surely be invaluable in the jury selection process. And, I thought, it might be fun. I agreed to assist.

He gave me a brief outline of the case (we represented the defendant in an automobile accident), showed me the jury seating chart, and explained how to complete it. He thanked me profusely and asked me to meet him at the courthouse at 8:30 the next morning. No problem. I got there at 8:30 but completely forgot about the metal detectors at the courthouse and the long lines of people waiting to get through them. That was okay, because I saw my associate and someone who was presumably our client with him just a little bit further up the line. He encouraged me to break in line, but I refused. It didn’t really matter when we got there, because the jury panel wasn’t seated until 10:30 anyway. I met our client, got the jury cards, and proceeded to fill in the jury chart with what I thought was pertinent information. I was very thorough, and felt pretty confident about the whole process.

Next they seated the prospective jurors. The plaintiff’s attorney decided that she didn’t like the juror mix, so she called for a jury shuffle. That meant that they had to re-draw the juror numbers and seat them in a different order. That also meant that all my thorough work in preparing my first jury chart was for naught. An hour or so later, the newly-shuffled jury was seated, and I frantically re-prepared the jury chart. I was up to speed, but it was getting late, so we broke for lunch and were told to return at 1:30. (There went my afternoon!)

We met back at the appointed time, and the jury selection process began. I watched the jurors carefully while the plaintiff’s attorney went through her portion of the voir dire. I noted negative body language, which prospective jurors seemed to be smiling and agreeing with her, and which ones were not. Two gentlemen on the front row appeared to be nodding off, which I duly noted. Then it was our turn. I was impressed with the aplomb shown by our associate as he addressed the jury panel—very calm, very confident—and I carefully watched the prospective jurors again and made notes.

We then got into some touchy questions, such as, "has anyone ever been involved in a car accident?" and I started taking notes again as people described their experiences, some positive and some negative. Another question dealing with the use of chiropractors spurred many interesting responses. It appeared that there were two types of people on the jury panel: those who either liked chiropractors or were neutral, and those who really, really did not like them.

Next, the jury panel was asked to step into the hallway so that we could question a few prospective jurors individually, which must have been rather intimidating for them. Unfortunately, every juror that I thought would be sympathetic to our side was eventually struck "for cause" because they were the ones who really, really did not like chiropractors. Since that was the prevailing mood of the jury, we individually interviewed approximately 20 people. By then it was almost 4:00. Finally, the individual interviews were done, and we had to determine who to strike. The associate and I each made our own list and compared notes—surprisingly, they were quite similar. We both struck the two people who were nodding off during voir dire, and a few others who appeared unsympathetic to our client. The plaintiff, of course, did likewise, and we eventually wound up with a jury. By then, of course, it was 5:00.

I wish I could have stayed to watch the trial and determine if our choices were accurate. It was a very interesting experience, and it was fun, too. More importantly, we won, so now I’m 1 and 0. And that’s a record I’m happy to live with!

Your client has access to all kinds of information. However, it is usually only that information which has proprietary value (helps to sell products, increase revenues, or gives an advantage over the competition) that a client desires to protect. Most companies fall down in either of two areas: failing to identify proprietary information in the first place, or, having identified it, failing to take adequate measures to protect it from disclosure to their competitors. Proprietary information generally falls into two categories:

According to some of the more formal sources, a trade secret may consist of (any formula, pattern, device or compilation of information which is used in one’s business, and which gives a person an opportunity to obtain an advantage over competitors who do not know or use it). Cherne Indus., Inc. v. Grounds & Associates, Inc., Minn., 278 N.W.2d 81, 89, 90, 205 U.S.P.Q. 854 (Minn. 1979); Kodekey Electronics, Inc. v. Mechanex Corp. C.A.Colo., 486 F.2d 449, 455, 179 U.S.P,Q. 770 (10th Cir. 1973). Examples include a plan or process, tool, mechanism, or compound known only to its owner and those of his employees to whom it is necessary to confide it. Palin Mfg. Col., Inc. v. Water Technology, Inc., 103 Ill.App.3rd 926, 59 Ill.Dec.553, 431 N.E.2d 1310, 1314, 221 U.S.P.Q. 646 (Ill. App. Ct. 1982).

You should classify proprietary information as a trade secret if it is enforceable as a trade secret, considering several judicially-created factors: has the matter been disclosed outside the company, what measures have been taken to guard its secrecy, how easily can the information be independently acquired, how much money has been spent in developing the information, how novel is the information, and does the information include general employee knowledge, such that enjoining disclosure would prevent an employee from pursuing his chosen career? If the information would be more valuable as a patent than as a trade secret, the information should be patented. A patent is preferred whenever: the secret is likely to be disclosed, it can be easily "reverse engineered," it is likely to be independently developed by a third party, it can be easily described on paper and copied, or the secret may be easily lost by disclosure to customers and/or suppliers.

While absolute secrecy is not required, it is essential that there is a substantial element of secrecy so that a third party would have difficulty in acquiring the information without resorting to improper means. Consider possible sources of "leaks" when determining whether proper steps have been taken to maintain secrecy, including: employees (especially those leaving the employment of your client); vendors (especially sales representatives, who may have inadequate security, or may be asked by a competitor to manufacture or sell a similar product); publications; trade shows and advertisements; customers and visitors; licensees; and the government.

Several of the following devices may be useful, and/or necessary to preserve trade secret security: improvements to building security, restricted access to photocopiers, document control and visitor control, employee interviews, developing employee awareness, and maintenance of special proprietary information records.

For existing employees and new employees, employment contracts should contain clauses specifically directed toward preserving confidential and proprietary information, identifying it as specifically as possible. In this way, it is much more difficult for an ex-employee to claim they were not aware of the importance of the information or its secrecy. Further, making use of the suggested measures is a great way to build evidence to support your client in any disagreements over ownership and recognition/protection of trade secrets.

There is really no form of registration available to protect trade secrets, as there is for patents. In fact, as mentioned above, the concept of a trade secret, and the method of maintaining it, is directly opposed to the theory behind patent registration. A trade secret must remain a secret to be enforceable, and full disclosure under the patent or copyright laws does not support such enforcement. However, it is possible to protect some software as a "trade secret" and obtain copyright protection under the laws of the United States, using special registration procedures. An attorney familiar with software programming requirements, patents, copyrights, and trade secrets should be consulted to determine the best strategy to employ for protecting software and other valuable trade secrets, based on the facts specific to any particular case.

Contracts to provide awareness, and remedies to protect against disclosure of proprietary information, along with secrecy maintenance programs, are among the preferred methods for proactive protection. Various state and federal laws also protect trade secrets and provide for injunctive relief and damages as remedies for those whose secrets have been wrongfully disclosed.

Since there is no formal registration available for trade secrets in the United States, contracts and licensing agreements are the best mechanism to prevent wrongful disclosure of secrets across national boundaries. Such agreements are especially effective when drafted by attorneys having experience in the particular technology or industry involved, as well as the laws of the countries involved. Other countries, such as Mexico, may require registration, or at the very least, specific descriptions of what constitutes a particular secret so that it can be enforced within contractual boundaries.

Mark V. Muller’s legal practice focuses on all phases of patent and trademark prosecution, with a special emphasis on assisting clients in Texas and Mexico with copyright, licensing, trade secrets, settlement negotiations, and corporate strategy planning. His technical experience includes microprocessor and embedded systems software, and the design of circuitry for digital computers, environmentally hardened electronics, high-speed data acquisition, and in the area of non-destructive testing, devices for ultrasound, eddy current, and acoustic emission examination of materials. He has been a registered professional engineer in the state of Texas since 1987. Mr. Muller was registered to practice as a patent agent in 1993, and holds patents in circuit board heat removal and ultrasound imaging. Prior to employment as an attorney with the law firms of Jenkens & Gilchrist and Gunn, Lee & Miller, Mr. Muller worked as a senior research engineer in the Department of Space Systems at the Southwest Research Institute, where he managed large research and development programs for NASA, SDIO, and the oil and gas pipeline industry. Mr. Muller received his law degree from St. Mary’s University School of Law, with honors, and also holds a Bachelor of Science degree in Electrical Engineering from Texas A&M University.

Jury selection, or what I call "juror elimination," is, without a doubt, the most important part of the trial of a case. Therefore, it is crucial that everyone involved in the jury selection process understand not only the basic concepts of jury selection, but also some of the intricate procedures which are involved with eliminating potential problem jurors.

Legal Assistants can be very helpful and, in many cases, are in the position to be the most observant of the potential jurors. On a very basic level, it is important to watch the potential jurors, from the moment they enter the courtroom, during their breaks, and while they are interacting with other members of the panel. Little things such as how a female panelist holds her purse may tell you how she views money or material objects. Jurors who appear to be very immaculate about their manner of dress may expect perfection from the parties and their counsel, and may require a higher degree of proof from the evidence. Jurors who dress conservatively have been known to favor the defense. Body language is also very important. For example, it is usually easy to tell whether a potential juror is hostile, friendly, or antagonistic just by the way they sit or hold their arms, or by their facial expression.

Prior to the day of trial, it is most beneficial for the Legal Assistant to talk with the court personnel, namely the bailiff, about how the judge assigned to the case will seat the panel during voir dire. For those who have not heard that term, "voir dire" means "to speak the truth" and is the process by which the attorneys for the parties are allowed to question the potential jurors about their life history and any prejudices they may have. The bailiff will be able to describe how many rows of seats will be used during voir dire, the number of potential jurors to be seated on each row, etc. This will assist in the preparation of the jury chart. In general, a "jury chart" is simply a diagram written on a piece of paper which contains a box for each panelist. The boxes are arranged on the paper in the same order as the panelists are seated during voir dire. For example, if the bailiff indicates that the panel will consist of fifty prospective jurors and they will be seated ten per row, the chart will contain five rows of boxes with ten boxes per row. Once the court has provided the attorneys with a list of the jurors to be seated on the initial panel, the names of the panel members can be written in the boxes according to seat number, along with information regarding their employment, marital status, religious preference, and lawsuit history. The chart can then be used to record the responses of the potential jurors to the questions asked during voir dire. One thing to remember is that any request to shuffle the jury panel must be made prior to the time voir dire begins. Tex. R. Civ. P. 223.

Other things to ask the bailiff about prior to the seating of the panel include the number of peremptory strikes allowed per side, whether the particular court likes to handle challenges for cause during or at the end of general voir dire, whether multiple panels are chosen for different cases during the same voir dire, and how much time each side is given to conduct their portion of voir dire. For additional information concerning the specific rules governing jury selection in Texas courts, see Tex. R. Civ. P. 216-236.

During the questioning of the panel, pay particular attention to responses from the jurors which would be supportive of a "challenge for cause," which means that one or both of the attorneys can request that the court dismiss a potential juror from the panel simply because that juror’s opinions are so prejudicial to the matters involved in the suit to be tried, that the juror would not be able to fairly judge the evidence. Make notes of any comments made by panelists which would fit this category, and make a list of the specific jurors who will need to be questioned individually regarding their possible prejudices. Also, note any responses which would indicate that a potential juror may not be favorable to your client’s side of the case or may be very favorable to the other side of the case. The attorney will need to be aware of those responses in order to determine whether to use one of his/her "peremptory strikes" to remove the panelist from the list of possible jurors. Once the voir dire has been completed, all notes taken can be compared and used to determine which potential jurors to strike from the panel. One word of caution about notes taken and information written on jury charts: some courts will collect the notes and keep them as part of the court’s file or, even worse, they may be used as part of a Batson challenge by the opposing counsel. Therefore, it is important that you remember that what is written may become part of the record for everyone to see at a later date.

Another good thing to do is to have your client take notes during the voir dire process. They will usually have some feedback as to reactions from the panel members. It may be something as simple as a panel member looking at your client in a less than favorable manner. I have found that clients who are involved in the jury selection process feel more comfortable throughout the trial of the case.

Unfortunately, there is no magic involved in selecting a jury or in eliminating problem jurors. After years of assisting with the selection of many juries, I am constantly amazed at how wrong I was about people and their opinions. The only sure thing that I have learned is that there is no way to predict how a juror will react to witnesses and evidence. The only thing which has remained constant is my surprise at the manner in which some juries have come to conclusions they did during their deliberations. Thus, all that can be done is for everyone involved to use common sense and to pay attention to the panel members as much as possible in order to hopefully end up with the best jury possible.

Lori A. Daly is a paralegal with Calhoun & Stacy in Dallas, Texas where she has worked with Roy L. Stacy since 1992. Lori has a paralegal certificate from Blackstone School of Law and has worked in the areas of medical malpractice and personal injury since 1987. She may be reached at 5700 Bank of America Plaza, 901 Main Street, Dallas, Texas 75202; (214) 748-5000.

Insurance Fraud: What’s It All About?

By Joan Olson, CLA

Insurance fraud, whether committed by sophisticated criminals or everyday consumers, has grown in epidemic proportions in recent years. Not only does it undermine the insurance industry as a whole, but it is also detrimental to everyone, as we all pay for the cost of insurance fraud. Insurance fraud threatens the affordability of insurance and the concept of risk sharing upon which insurance is founded. To accumulate adequate funds to pay for losses incurred by policyholders, the insurance company must be able to accurately predict expenses and losses.

Payment of fraudulent claims erodes reserves and destroys the company’s ability to predict losses. Experts estimate that approximately 10 to 30 percent of the total claim dollars currently paid for fraud increases each individual’s premium payment by as much as 8 to 10 percent. Charging higher costs for an insurance product is one available means of recouping losses incurred as a result of the fraud. Although no one knows how much insurance fraud costs, Conning & Co.’s publication titled Insurance Fraud: The Quiet Catastrophe estimated that insurers lose approximately $120 billion annually in fraudulent claims alone, as follows: $95 billion in fraudulent health care claims, $20 billion in property and casualty insurance claims, and $5 billion in life and disability claims.¹ Not only are insurance companies losing money on fraudulent acts, but also the states are expending more funds to combat this problem. Texas, as well as almost every other state, has created a separate division to address the problem, investigate suspected fraudulent acts and prosecute the wrongdoers. These divisions have to be funded from tax dollars, as well as from annual assessments imposed against insurance companies. The Coalition Against Insurance Fraud estimates that insurance fraud costs more than $1,000 per family each year in hidden expenses.

The common law definition of fraud is defined as an act of deceiving or misrepresenting, theft by deception or acting with reckless indifference to the truth. Fraud is not a simple oversight or an honest mistake that someone makes. Fraud is a deliberate and premeditated act. An act of fraud contains four elements: (1) there is a deliberate lie; (2) the intent of the lie is for someone else to rely on that lie; (3) there is reliance on the lie; (4) as a result, damages are suffered by the party/person relying on the lie.²

Insurance fraud, as defined by the National Association of Insurance Commissioners in the Insurance Fraud Prevention Model Act, is much more extensive. It is defined as an act or omission committed by a person who, knowingly and with intent to defraud, commits or conceals any material information concerning one or more of the following:

Presenting, causing to be presented or preparing with knowledge or belief that it will be presented to or by an insurer, a reinsurer, broker or its agent, false information as part of, in support of or concerning a fact material to one or more of the following:

The key difference between the common law definition of fraud and insurance fraud is the damage element. Damages do not have to be suffered to constitute insurance fraud. For example, if an applicant misrepresents facts on an insurance application, insurance fraud has been committed, and the company may take the necessary steps to report the individual to the appropriate agency for further action.

While there are many different types of insurance fraud that are perpetrated against or by insurance companies, insurance fraud can be classified as either "hard" or "soft" fraud.³ Hard fraud is usually a deliberate attempt either to stage or invent an accident, injury, theft, arson or other type of loss that would be covered under an insurance policy.⁴ Staged auto accidents and arson are among the top hard frauds that are reported to the Texas Department of Insurance according to Mark Hanna of the Texas Department of Insurance, Public Information Office. Soft fraud, which is sometimes called opportunity fraud, occurs when a policyholder or claimant exaggerates or pads a legitimate claim.⁵ My favorite example of this type of fraud occurred in connection with the Northridge, California earthquake tragedy. An expensive set of broken china was passed from neighbor to neighbor to help the insureds inflate their claims. This scheme would have worked if not for an astute claims adjuster who recognized the set from previous claims.

Although the majority of Americans are aware that insurance fraud is a problem, the practice is tolerated for several reasons. Mistakenly many think that insurance fraud is a victimless crime. Some find it acceptable to pad a claim to make up for premiums paid or to recover the cost of the deductible they have to pay, and they believe this little exaggeration won’t hurt the insurance company because it has "deep pockets." However, people who hold these opinions do not understand how extensive and costly the crime of insurance fraud is and how disadvantageous it is to everyone.

On a federal level, President Clinton signed into law the Insurance Fraud Prevention Act (the "Fraud Act")⁶ as part of an omnibus anti-crime bill entitled the "Violate Crime Control and Law Enforcement Act of 1994" to address fraud and insider abuse in the insurance industry. The Fraud Act has five main fraud-fighting tools. First, the bill makes it a felony to knowingly, with intent to deceive, file a false material statement or report, or to overvalue land, property or security in connection with any financial reports or documents presented to an insurance regulatory agency. The Fraud Act prohibits the embezzlement, misappropriation or theft of insurance company money or assets by employees engaged in the business of insurance. Also, it is illegal to make any false entry of a material fact in the records and statements of an insurance company, if there is intent to deceive. Next, the legislation prohibits the use of force or threats to influence, impede or obstruct any proceeding involving the business of insurance. Lastly, the bill makes it a crime for any individual who is engaged in the business of insurance to willfully permit the participation of any individual who has been convicted of a criminal felony involving dishonesty or breach of trust, as well as restricting a felon from engaging in the business of insurance. Penalties under the Fraud Act may consist of a civil penalties of $5,000 to $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, whichever is greater, and/or imprisonment of up to 5 to 15 years, depending on the offense.

States are aiding in the fight against insurance fraud by promulgating laws that increase the crime of insurance fraud to a felony offense, by increasing the size of fines and restitution and by providing for prison sentences. Some states mandate administrative action, such as revocation of licenses, against licensed individuals, i.e. medical providers, lawyers, insurance agents, body shops, who are convicted of insurance fraud. Special fraud units have been created in most state insurance departments to aid in the collection of information, investigation and prosecution of insurance fraudulent acts. In fact, the investigators of the Insurance Fraud Unit of the Texas Department of Insurance have peace officer status.⁷ These state employees have the authority to issue subpoenas, interrogate suspects, interview witnesses, carry out search warrants and carry firearms. Furthermore, many states have made it mandatory for insurers to report suspected fraudulent acts, implement anti-fraud plans and procedures and maintain Special Investigation Units.

As required by law, but also as a good business decision, insurance companies are establishing Special Investigation Units to help with the deterrence, detection, investigation and reporting of insurance fraud. These units are working with state fraud bureaus and other law enforcement agencies by reporting suspicious fraudulent activities and cooperating in the investigation and prosecution of insurance fraud. However, one of the most important charges given to Special Investigation Units is the training and education of key personnel to help them recognize red flags or indicators that are common to fraudulent activities and to provide these individuals with the knowledge of how to properly handle these matters.

Educating the public and heightening consumer awareness is another way to combat the problem. If you suspect insurance fraud, notify your insurance company, local law enforcement agency or contact the Insurance Fraud Unit of the Texas Department of Insurance toll-free at (800) 252-3439 or by e-mail at Fraud_Report@tdi.state.tx.us.

Joan Olson is the Assistant Vice President of Regulatory and Corporate Compliance and Assistant Secretary for PennCorp Financial Group and its insurance subsidiaries as well as the Director of the Special Investigations Unit for the insurance subsidiaries. Joan received a BA in Government from the University of Texas in 1991 and her Certificate of Completion from the Paralegal Program at UTA in 1992. She is the Vice President of the Metroplex Association of Corporate Paralegals.

Wake up and stop fantasizing Ally McBeal, you need to make room at your counsel table for more than just John Cage. As a trial judge, I wish I could order all lawyers to have and utilize competent litigation paralegals and bring them into the courtroom. Trials are more efficient and I for one, appreciate what paralegals bring into the litigation process. It has been my experience that no matter how well versed lawyers may think they are in their case, it is almost inevitable that they will be caught off-guard because of a missing document or changed testimony.

Just recently in my courtroom I had on one side of the counsel table Richard Fish, who came in with a smile and unpacked a crate full of documents and stacked them semi-neatly behind him on the floor. On the other side, Perry Mason comes in with Della, his paralegal, along with what appears to be a group of organized folders and notebooks. Richard has his first witness on the stand and aside from the ridiculous line of questions, he needs a document and stops in the middle of his direct and begins rifling through the flood of stacked papers looking feverishly for just the right one. Across the table, Della chooses a folder, opens it, pulls out a document, hands it to Perry and then we all sit and wait, somewhat impatiently, for Richard to continue his search. When Richard triumphantly retrieves the document he’s been looking for, he studies it for a moment, then realizes it’s not the exact one he needed, then the search is repeated again. What an inefficient use of the court and jury’s time! So let me say this again, I wish I could order all lawyers to have and utilize competent litigation paralegals and bring them into the courtroom!

The best lawyer is not a presenter–he’s a persuader. The lawyer’s goal in any trial is to persuade the jury that his client’s position is the correct one, the just one, the only one. Once the lawyer gets into the courtroom he should concentrate on the trial at hand, not where documents or exhibits are located. His competent paralegal is sitting either behind him or beside him, listening to where the testimony is headed and ready in a moment’s notice to make the hand-off. This frees up the attorney to concentrate on his next question rather than worrying whether or not he can locate the smoking gun.

However, a paralegal should not be used only as a librarian at trial. While I feel document management is indispensable from a judge’s perspective, with technology rapidly changing today’s law practice, trial lawyers are in even greater need of a technologically-savvy paralegal in the office as well as in the courtroom. To avoid boring jurors, trial lawyers must consider bringing today’s technology to court. In this sense, the paralegal may well become the client’s and lawyer’s most valuable courtroom asset. It’s been my observation that even the most talented trial lawyers are "technologically challenged", and rely on their paralegal to get the demonstrative evidence in the view of the jurors and the judge, again, freeing up the attorney to concentrate on strategy and the testimony at hand. In most instances, it is obvious that the paralegal has worked on the case with the attorney prior to coming to the courtroom, and can calmly and appropriately deal with typical system problems that could arise.

The entire world observed the multitude of electronic gadgets used in the trial of O. J. Simpson, and if that trial has any redeeming value, it has shown us that paralegals and technology have a future in our court system. So, wake up Ally McBeal, what are you waiting for? Next time you go to court, don’t bring John Cage or Richard Fish, bring a paralegal instead.

No matter how much money you make, it pays to keep on top of money coming in and going out. Even if you do a good job of that, there are important times in your life when talking with a professional adviser makes sense.

Almost every major life event—finding or losing a job, getting married or divorced, having a baby, buying a home—is likely to have a major impact on your finances. A new job may mean you are making more money—no problem there as long as you know the best way to invest it. Getting married may mean you have a second income to count on, but now you have someone counting on yours as well. Buying a house means you have to come up with a hefty sum of cash for a down payment, get used to monthly mortgage payments and meet the expense of house repairs.

Let’s look at what happens if a baby comes into your financial picture. First, medical bills need to be paid, so having good medical insurance is important. Few insurance plans cover everything, so you’ll need to have a cash reserve to cover deductibles and extras, not to mention the furniture, clothing and sundries you’ll need when the newborn comes home.

With a new addition to the family, you’ll want to make sure that the entire family (baby, too) is protected if something should happened to you—that means reviewing life and disability insurance to be sure it’s adequate for your new responsibilities.

There’s the future to start thinking about, too. Will your child go to college? If so, the College Board estimates that secondary education costs are rising 7% to 8% annually, a rate much higher than the rate of inflation. To afford the average $7,000 total costs for a state university, you need to start saving $195 a month. Wait until your child is 7 years old and the monthly amount jumps to $240! So, it’s smart to put away a little sum each month.

What can you do to accommodate new strains on your paycheck? How can you meet all of your new responsibilities? With an important financial goal (such as educating a child) you’ll want to work with a generalist—a financial planner. A lot of professionals specialize in areas such as taxes or stocks, but a financial planner helps you understand the "big picture." A qualified financial planner can help you sort through your current financial situation, help you set short- and long-term goals and objectives, then present a "blueprint" designed to show you how you can meet your goals while staying within your means.

There’s nothing more certain than change. And just as you learn to adapt to the changes life throws your way, you can count on things changing with your finances as well.

Craig Hackler holds the Series 7 and Series 63 Securities licenses, as well as the Group I Insurance license (life, health, annuities). Through Raymond James Financial Services, he offers complete financial planning and investment products tailored to the individual needs of his clients. He will gladly answer your questions. Call him at 512.894.3473.

In September, 1999 the Task Force completed its last Open Forum on Definition of the Paralegal Profession. The Forum was held in connection with the annual fall meeting of the Legal Assistants Division Board of Directors, State Bar Legal Assistant Committee, and Texas paralegal educators. Distinguished guests and speakers included Supreme Court Justice Greg Abbott.

During 1998 and 1999, seven Forums were held across the state with a Power Point Presentation titled "Forging Ahead: The Future of the Paralegal Profession." The Forums focused upon issues facing the profession including restricting the use of the term "legal assistant/paralegal," recognition of professional status and perception of the paralegal profession. These Forums were intended to educate and inform Texas legal assistants and to solicit their input and opinions. Information from other states and other state approaches was provided.

The meetings were recorded by court reporters and transcribed into transcripts so that the Task Force may review the exact comments raised at the meetings. In particular, many spoke about their opinions regarding licensure of paralegals, certification, testing and other mechanisms to demonstrate paralegal competency.

Subsequent to the Forum, the Task Force developed a survey directed to attorneys which has been distributed to the lawyers on the Legal Assistant committee, and to other attorneys. The Task Force felt that significant efforts have been made to get information to and from Texas paralegals, and that the same should be done with Texas attorneys. An update report was given to the LAD Board of Directors in February, 2000 by Chair Debra Crosby.

The Task Force continues to review the data collected over the past several years, including new information as developments occur all over the country. The Task Force intends to meet during the Annual Meeting in June and to develop a timeline for a final recommendation and report.

While many attorneys go online for basic legal research and for communicating via email, relatively few have been leveraging the Internet as a platform for more robust forms of client service and knowledge management. This story will briefly explore how law firms large and small can better respond and service their clients using extranets.

While everyone is familiar with the concept of the Internet, an explanation of intranets/extranets may be useful. An intranet is a private internal computer network that can be accessed by people within your firm via a web browser (such as Internet Explorer® or Netscape Navigator®). An extranet is an extension of the intranet idea. It provides a platform for communicating with people outside the firm—clients, co- counsel, opposing counsel, etc. A successful extranet is secure from outsiders, utilizes state of the art encryption and provides users access only to information to which he or she is authorized to see.

There are two ways of viewing the impact and utility of extranets. On one level, the extranet provides a more efficient way of performing everyday tasks. Instead of faxing or couriering documents to a client who’s requested them, for example, an extranet lets you post these documents to a secure electronic repository, where the client can access them at their leisure, using a web browser. Likewise, calendaring information or meeting plans for a particular case/matter can be instantly published for pertinent parties outside the firm…and each party can use the extranet to indicate their availability for the gathering at hand.

These applications of extranet technology can certainly streamline many of the common client service tasks that attorneys and support staff perform each day (exchanging documents, making files available, providing answers to simple questions)—and cuts costs as well through reductions in long distance calls, express mailings and facsimile transmissions. On another level, however, the deployment of an extranet can help re-define the mechanism of client service, and in the process bring service to a higher level.

Carrington, Coleman, Sloman & Blumenthal recently deployed an intranet/extranet system from Niku for Legal (formerly Legal Anywhere, Inc.). The system has been utilized by the firm’s real estate group to streamline several complex development projects, and by Carrington’s employment law group to coordinate multiple cases for a client. "The extranet can be very helpful when working with in-house counsel on discovery response, particularly answers to interrogatories and requests for admissions," says Jean Foster, Carrington Coleman’s paralegal coordinator, and a seasoned litigation paralegal "It can also be utilized by in-house counsel when reviewing or participating in pre-trial preparation, such as deposition designations, exhibit lists and so forth. It is a wonderful tool to keep in-house counsel very involved in your pre-trial preparation."

Adopting an extranet requires a level of commitment on the part of both the law firm and the client, as it requires rethinking the way work gets done. "It’s no secret that change—especially new technological change—brings with it some resistance and apprehension," says Charles C. Jordan, a partner at Carrington, Coleman, where his practice focuses on commercial real estate law and environmentally contaminated facilities. "I believe that adapting to a new form of communication—like the extranetˆtakes time for both lawyers and their clients, and that it is important for both groups to have a cautious introduction to, and a positive initial experience with, the process. If you can show people how the extranet makes what they are already doing easier and more efficient, they adapt quickly."

There are a range of options for deploying an intranet/extranet in your firm. At the high end of the scale, a firm can purchase and install necessary hardware to host the system and dedicate IT personnel to design the system from the ground up, and subsequently maintain it. On the other end of the scale, a firm can outsource a partner to design, maintain, and even host the system. In fact, several "off-the-shelf" applications are available, eliminating the need to staff up on IT folks or pile up considerable consulting fees in the outsourcing process. The Niku solution is hosted entirely on a remote server, so there’s no additional hardware or software to buy (so long as internet browsers are available for free). For smaller firms, such off-the-shelf applications may be the only realistic option from a cost standpoint. Many larger firms are also selecting the outsourcing option, due to limitations they’ve encountered with their own "home-grown" extranet.

It goes without saying that an extranet that lacks robust firewalls and stringent encryption measures is next to worthless. Likewise, a system that lacks attorney-intuitiveness—no matter how secure—is unlikely to gain much of a following.

The odds are very good that in the coming year more and more of your corporate clients will be requesting—or mandating—that you make the legal information they’ve retained you to produce available through an electronic platform. By embracing extranet technology before the mandate, you will display a pro-active stance toward client service, and likely discover a more effective means of client communication.

Jason Park is a Product Consultant with NIKU. He has been a Proponent for Technological Advances within the Texas Legal Community for five years. Mr. Park may be reached at (972) 236-8950 for further clarification of any issues in this article.

The task of tracking one’s attendance and completion of continuing legal education (CLE) programs has become a monumental task for most legal assistants. Different CLE attendance requirements among the various certification programs have become a maze to those individuals who have successfully completed more than one certification examination. Hopefully, this article will assist you in keeping up with the different educational seminars you have attended.

First, the most important task is to keep a copy of all brochures, attendance certificates and any other materials issued by the sponsoring agent of the seminar proving your attendance at a CLE event. Build a personal CLE file by year of attendance. Include in this file any self study [CLE hours] that may be accepted as continuing legal education by the various certifying entities. If you have any questions regarding the number of CLE hours you receive for a particular seminar, please contact the sponsoring agent within the six months following the event. As time goes by, it may be difficult for the sponsoring agent to offer assistance because of the ability to keep records on file. It is up to you to make the contact within a reasonable period of time. The sponsoring agent is not responsible for keeping a record of your CLE attendance.

Below is an outline of the different certifying organizations and their requirements for tracking CLE:

To prove CLE hours to TBLS, the sponsoring agent should apply for credit directly to the Texas Board of Legal Specialization. If credit is issued by TBLS, the sponsoring agent will distribute to each seminar attendee a "Certificate of CLE Attendance for Legal Assistants" at the seminar being attended. This Certificate will have a place for the number of hours attended and should be signed by the sponsoring agent. If you are a TBLS board certified legal assistant and have received a TBLS file number, you may send a copy of the certificate to the Texas Board of Legal Specialization at P. O. Box 12487, Austin, TX 78711 to be placed in your record file. Keep a copy of this certificate in your personal CLE file along with a copy of the seminar brochure. If you are not yet board certified but plan to take the board certification examination, keep this Certificate in your personal CLE file along with a copy of the CLE brochure. For more information regarding the TBLS examination and requirements, please contact TBLS at 512/453-7266 or visit their web site at www.tbls.org.

To prove CLE hours to NALA, the sponsoring agent may or may not distribute a NALA Certificate of Attendance form to seminar attendees. Most sponsoring agents for legal assistant continuing legal education will have the forms on site. This form can be received directly from NALA and brought to the seminar by the attendee. The Certificate must be signed by the sponsoring agent at the seminar. It is wise to attach a copy of the brochure to the NALA Certificate of Attendance to forward to NALA for CLE credit hours. For more information regarding keeping track of CLE for NALA, please contact NALA at 918/587-6828 or visit their web site at www.nala.org

To prove CLE hours to NFPA can be accomplished by one of two ways. The sponsoring agent may or may not forward a list of attendees to the NFPA’s continuing legal education chairperson stating your attendance at a seminar. Please ask the sponsoring agent at the seminar if they will be forwarding a list of names to NFPA for CLE credit. If the sponsoring agent does not forward a list [check with seminar sponsor on site], you may forward a copy of the brochure and any certificate of attendance that your received at the seminar. It is wise to attach a copy of the brochure to the certificate that is forwarded to NFPA for CLE credit hours. For more information regarding keeping track of CLE for NFPA, please contact NFPA at 816-941-4000 or visit their web site at www.nfpa.org

As most of you are aware, the MCLE Department of the State Bar of Texas keeps track of all attorney CLE hours [this is the purpose of the MCLE Department]. This State Bar Department will also keep track of CLE hours for legal assistants who are members of the Division and who have attended a seminar that is approved for MCLE credit. In order for a seminar to be approved by the MCLE Department of the State Bar of Texas, the seminar must be targeted primarily to attorneys. Legal Assistant seminars [targeted primarily to legal assistants] will not be approved by the MCLE Department therefore they will not keep track of the CLE hours for legal assistants. If the sponsoring agent distributes the State Bar computer cards at the seminar, it will indicate the seminar was approved by the MCLE Department. If you attend a seminar targered to attorneys and has been approved for MCLE credit, please complete the MCLE computer card and return it to the staff person on site. This information will be entered into the MCLE Department computer data base. In order to receive a print-out of the CLE hours you have attended [approved by the MCLE Department], you must forward a check in the amount of $5.00 to the MCLE Department at P. O. Box 13007, Austin, TX 78711. Please call the MCLE Department at 1/800-204-2222 or 512/463-1463, ext. 2118 with any questions.

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by Mark V. Muller

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