As Legal Assistants, many of us have a great deal of involvement in the process of locating, interviewing, and working with expert witnesses. We are also routinely asked to gather information concerning expert witnesses who have been identified by other parties. More than ever, expert witnesses are playing key roles in getting evidence introduced to assist court and juries in understanding the issues which are involved in lawsuits.

Whether you work on cases for plaintiffs or defendants, whether the cases in which you are involved are pending in federal or state courts, and whether the matters involved are criminal or civil in nature, chances are that, at some point in time, you will need to assist in the retention and/or confrontation of an expert witness. That witness may be needed to offer assistance in the areas of medical malpractice, accident reconstruction, product manufacturing, or many other specialized fields.

Used properly, expert testimony can undermine claims and defenses made by litigants and can persuade even the most doubtful jurors that things are or are not how the parties presented them. However, if expert witnesses are found to be unqualified to give the opinions they have or if their methodology is found to be less than credible, more and more courts are granting motions to strike them and their testimony.

During the last few years, a number of decisions have changed the way experts are viewed and they have had a dramatic effect on whether their testimony ever reaches the jury. The most significant of the changes were established by the U.S. Supreme Court in Daubert v. Merrell-Dow Pharmaceuticals, Inc.¹ and Kumho Tire Co. v. Carmichael². The Texas Supreme Court issued E.I. duPont de Nemours v. Robinson³ in 1995 and adopted the standards prescribed by Daubert.

In Daubert, the Court ruled that the judge must determine, at the outset, whether an expert’s testimony is based on “scientific knowledge” which will “assist” the trier of fact in understanding and determining a fact at issue. While Federal Rule of Evidence 702 has historically allowed “qualified” experts to provide scientific, technical, or other specialized knowledge to assist the judge and/or jury in understanding the evidence or to determine facts at issue, the rulings in Daubert, Kumho, and Robinson have caused “reliability” and “relevance” to be examined in cases which involve “non-scientific” expert testimony, as well.  Further, in Daubert, while not saying that there is a “definitive checklist or test,” the U.S. Supreme Court prescribed four factors that should be considered by the trial judge in determining whether the expert’s methodology is “reliable” and “relevant.”  In addition, in Robinson, the Texas Supreme Court clarified the factors, breaking them into six as opposed to four.

In addition, in K-Mart Corporation v. Honeycutt⁴ the Texas Supreme Court recently pointed out that the subject of the expert’s testimony mus be “beyond the average juror’s common knowledge.”  Honeycutt holds that, even though an expert’s testimony may be found to be “reliable” and “relevant” to the issues involved in the case, if the issues are too elementary, expert testimony is not needed or allowed.

Another case in which the U.S. Supreme Court addressed the issue of an expert’s methodology is General Electric Co. v. Joiner⁵. In that case, the Court held that simply because an expert’s methodology was found to have been acceptable for “some” purposes, it may not be acceptable for other purposes. It also clarified its prior holding under Daubert by indicating that, not only is the reliability of an expert’s method important, but the expert’s conclusions are also relevant, and if the conclusions were not reached based upon the data upon which the expert relied, the testimony is not reliable.

In light of the numerous changes prescribed by the cases referenced above, the selection of experts who can meet the requirements of Daubert has become of utmost importance. When considering potential experts and their testimony, some things to think about should include the following:

1. Have the expert’s methods been adequately tested or can they be tested?

2. Can the expert testify as to the potential rate of error with regard to his/her methods or techniques?

3. Do the expert’s methods or technique rely upon the expert’s subjective interpretation?

4. Can the expert specifically identify his/her methodology and show that his/her methods are widely accepted in his/her specific field of expertise?

5. Has the expert been sufficiently published in peer-review journals and, if not, can he/she at least cite a number of peer-review articles and/or books which confirm that his/her methodology is widely accepted?

6. Can the expert show that his/her theory or technique has been used for non- judicial uses?

The best way I have found to make sure that your expert is allowed to testify and is not disqualified due to qualifications and/or methods is to closely review their education and experience. Make sure that the expert’s experience fits well with the issues involved in the case at hand. Ask the expert for the names of other attorneys they have worked for. Call those attorneys and talk with them about what they thought about the expert (qualifications, demeanor, effectiveness, etc.)  Also ask the expert to provide you with names of attorneys who have confronted the expert from the other side of a case. Call those attorneys, as well. Those attorneys can sometimes provide invaluable information regarding the expert’s weaknesses and can tell you whether the expert was disqualified in the case they handled.

The next step is to find additional information regarding the expert. There are a number of services that provide information concerning experts, including IDEX⁶, Defense Research Institute⁷, the Texas Association of Defense Counsel⁸, and the Association of Trial Lawyers of America⁹. In addition, many law firms compile information regarding experts in their own databases.

Because of the rise in the number of lawsuits being filed in recent years, there are a large number of people who consider themselves to be “experts” in one field or another. Thus, the importance of locating true experts has become increasingly important in the handling of today’s cases.

Lori Daly is a paralegal with Stacy & Condor in Dallas, Texas, where she has worked with Roy L. Stacy since 1992. Lori is board certified in Personal Injury Trial Law from the Texas Board of Legal Specialization. She received her paralegal certificate from Blackstone School of Law and has worked in the areas of personal injury defense and medical malpractice defense since 1987. She may be reached at 901 Main Street, Suite 6220, Dallas, TX   75202, 214/748-5000.

1  509 U.S. 579 (1993)
2  526 U.S. 137 (1999)
3  923 S.W.2d 549 (Tex.1995)
4  24 S.W.3d 357 (Tex.2000)
5  522 U.S. 136 (1977)
6  IDEX, P.O. Box 12426, Overland Park, Kansas, 66212, 800-521-5596.
7  Defense Research Institute, 750 N. Lakeshore Drive, #500, Chicago, 
     Illinois, 60611, 312-944-0575.
8  Texas Association of Defense Counsel, 400 W. 15th St., #315, Austin,
    Texas, 78701-1657, 512-476-5225.
9  Association of Trial Lawyers of America, 1050 31st Street, N.W.,
   Washington, D.C., 20007, 800-424-2725.

DUAL REPRESENTATION AND THE TRIPARTITE RELATIONSHIP IN INSURANCE DEFENSE 
by David W. Lauritzen

Introduction
In practicing insurance defense, I commonly get a call or letter from opposing counsel or paralegal asking me to discuss matters with my “client”, the insurance carrier. I cannot tell you how irritating this is, because everyone knows that my client is the insured!  Or do they?  And is the insured my only client?  And if I’ve got more than one client, what are my obligations to each?  This “tripartite relationship” in a third party insurance defense case—carrier, insured, and defense attorney—is a veritable minefield of confusion, contradictions, and conflicting duties. The next few pages will discuss some of the more common issues that arise within the tripartite relationship. This discussion is by no means exhaustive, but will hopefully serve as a refresher to legal professionals on both sides of the docket.

A. Dual Representation and Tilley

    Modern insurance defense obligations to carrier and insured are largely guided by the 1973 Texas Supreme Court decision of Employers Casualty Co. v. Tilley. Before Tilley, it had long been the practice for an attorney hired by a carrier to defend an insured to also advise the carrier as to coverage issues with respect to that same insured.

The Tilley Problem 

In Tilley, the attorney hired to represent the insured also provided advice to the carrier on coverage issues. Specifically, there was an issue as to whether the insured had notice of the claim prior to the filing of suit and had failed to notify the carrier. Tilley’s attorney also helped develop evidence for a later declaratory judgment lawsuit for denial of coverage to his own client. Neither the attorney nor the carrier told the insured of the conflict of services performed by his attorney.¹  Addressing the duty owed by defense counsel to the insured, the Tilley court held: “Nevertheless, such attorney becomes the attorney of record and the legal representative of the insured, and as such he owes the insured the same type of unqualified loyalty as if he had been originally employed by the insured. If a conflict arises between the interests of the insurer and the insured, the attorney owes a duty to the insured to immediately advise him of the conflict.”²

Since Tilley, legal professionals have become increasingly aware of the ethical conflicts inherent in the representation of insureds. One example involved an attorney who rejected a settlement on behalf of the insured because of his allegiance to the insurer. In addition to failing to accept the offer despite the insured’s wishes, the attorney communicated to the carrier that a “$600,000 judgment in the underlying case would be helpful down the road when we get into the coverage fight.”  The Court found this situation deprived the insured the opportunity to accept the settlement offer, thus creating a conflict of interest.³  Clearly, the defense counsel’s actions here violated the principles set forth in Tilley.

Other potential tripartite conflict situations include: (1) a possible third party claim against an insured that is not covered under the liability policy; (2) the disclosure of information to the defense counsel relating to a coverage issue; (3) the existence of reciprocal claims; (4) multiple defendants; (5) claims above policy limits; (6) punitive damage claims; (7) continuation of defense of the insured continues after policy limits have been exhausted; (8) violation of a policy provision by an insured; and (9) the insured and carrier conflict over settlement proposals.⁴

Dual Representation Theory

The general rule, or dual representation theory, establishes that absent a conflict of interest, insurance defense counsel hired by liability insurers represent both insurer and insured.⁵  In contrast, the minority view, or one-client theory, holds that defense counsel only represents the insured.

Professor Charles Silver of The University of Texas School of Law has persuasively argued that Texas follows the general rule and expressly recognizes that a defense lawyer has two clients—the liability carrier and the insured.⁶  Texas also recognizes that an attorney retained by an insurer to defend the insured owes the insured a duty of unqualified loyalty.⁷

Tilley, and its progeny, have recognized the unqualified duty of loyalty owed by defense counsel to the insured without abandoning the reality that defense counsel is hired and paid by the insurer. But, there are cases that arguably misconstrue Tilley to hold that there is no attorney- client relationship between an insurer and an attorney hired by the insurer to provide a defense to an insured.⁸  Under this one-client rule, communications between defense counsel and carrier could be discoverable, including fee bills, irrespective of whether a third party auditor was involved. The risk of such discovery would chill communication between the insurer and counsel, adversely affecting the insurer’s ability to evaluate claims and the attorney’s ability to defend lawsuits.

Control of Defense

In the quarter century following the Tilley decision, problems regarding a Tilley-type conflict of interest dramatically diminished. However, recently a new problem has developed with respect to the undue exercise of control by a carrier over the defense. This problem initially started in the late 1980’s in the context of cost-containment guidelines and captive counsel.

In State Farm Mutual Auto Insurance Co. v. Traver, the Texas Supreme Court addressed the insurance control issue.⁹  The court announced four principles governing the ethical obligations of the defense counsel: (1) independent counsel act as independent contractors, responsible for the results of their conduct and are not subject to the control and direction of the employer over the details and manner of their performance; (2) an insurer may not interfere with counsel’s independent professional judgment in the context of the litigation on behalf of its client; (3) the client, as principal, should turn to his or her attorney for relief if the attorney acts improperly, since the attorney is suppose to be independent of the insurer’s influence and must act as though the policyholder is paying the bills; and (4) an attorney’s ethical obligations to his or her client, the insured, prevent the insurer from exercising the degree of control necessary to justify the imposition of vicarious liability.

The fourth general principle is the most important holding for defense counsel. It imposes upon defense counsel an ethical obligation to the insured not to be placed in a situation where their independent professional judgment will be impaired. Likewise, a reciprocal obligation is imposed upon the insurer not to exert such controls as to interfere with the attorney’s professional judgment.

B. Stowers/Kelly Causes of Action

Simply stated, the Stowers doctrine is the duty to accept a reasonable demand within policy limits. If an insurer negligently fails to settle within policy limits, then the insured may be liable for damages beyond policy limits.¹⁰  Texas courts have extended this common law duty to encompass statutory rights found in the Texas Insurance Code and Deceptive Trade Practices Act (DTPA).¹¹

The Stowers Common Law

Stowers recognized that insurers have a duty to exercise that degree of care and diligence which an ordinarily prudent person would exercise in the management of its own business for responding to a settlement demand within an insured’s policy limits.¹²  If the carrier fails to exercise ordinary care, then it may be held liable for any resulting excess judgment.

The Texas Supreme Court has set forth three prerequisites to trigger the Stowers duty:  (1) the claim is within coverage; (2) the demand is within policy limits; and (3) the terms of the demand are such that an ordinarily prudent insurer would accept it, considering the likelihood and degree of the insured’s potential exposure to an excess judgment.  “A demand above policy limits, even though reasonable, does not trigger the Stowers duty to settle.”¹³

When faced with a settlement demand arising out of multiple claims and inadequate proceeds, an insurer may enter into a reasonable settlement with one of the several claimants even though such settlement exhausts or diminishes the proceeds available to satisfy other claims.¹⁴  The Soriano court furthermore determined that an insurer cannot be liable for negligently failing to settle claims unless there is evidence that either the insurer negligently rejected a demand within policy limits, or the settlement itself was unreasonable.                                                 

In addition to the common law Stowers duty, the Texas Legislature has passed a number of statutes that provide relief to insureds for negligent failure to settle third party lawsuits. In Allstate Insurance Co. v. Kelly, the insurer brought an action for declaratory judgment after an underlying third party claim resulted in a verdict of over ten times policy coverage.¹⁵  The insured assigned his rights against Allstate to the original plaintiff who then sued under a variety of bad faith theories including Article 21.21 of the Insurance Code and the DTPA.

In the underlying third party case, Allstate’s adjuster had (after three requests) received authority to settle the case for $50,000.00. However, the authority was withdrawn after plaintiff’s counsel could not provide a release from the plaintiff’s husband, at Allstate’s request. The Court found quite significant the fact that the plaintiff’s counsel did not represent the plaintiff’s husband and had no power to secure such a release. No one from Allstate nor the defense attorney told the insured of the settlement offer or its rejection.

In addition to the common law Stowers duty, the Court found that the insured was a consumer under the DTPA  and had standing to bring a claim. Accordingly, the insured was entitled to treble damages as provided under the version of the DTPA in existence at the time of suit. The Court also found that Section 16 of Article 21.21 of the Insurance Code allowed treble damages (explicitly referencing Section 17.46(a) of the DTPA) as well as a private cause of action for unfair and deceptive acts or practices committed by Allstate in the handling of the underlying claim. Although perhaps a cold comfort, the Court did hold that the insured was not entitled to recover both treble damages and exemplary damages as that would constitute a double recovery. Finally, the Court found that in addition to the common law rights found in Stowers, both the DTPA and insurance code actions could be freely assigned by the insureds to other parties.¹⁶

Receipt of Stowers/Kelly Demand

Upon receipt of a letter purporting to be a Stowers/Kelly demand, counsel should initially determine whether the demand facially meets the prerequisites set forth in Garcia. A demand with a time period as brief as two weeks has been found to be reasonable when the insurer is in possession of sufficient information to evaluate the case. Counsel should immediately prepare two letters, one to the insurance company and one to the insured. The letter to the insured (the party to whom counsel owes an unqualified duty of loyalty) should include the following information: (1) a demand for $___.00 has been received; (2) the demand’s time limit, if provided; (3) a copy of the demand; (4) the demand has been sent to the carrier for a response; (5) counsel will continue to keep the insured advised as to settlement negotiations; (6) in the event the carrier fails to accept the demand and a judgment is entered in excess of the insured’s limits, the carrier may be responsible for the entire amount of the demand; and (7) the insureds have the right to retain their own private attorney at their expense, to review the demand and to advise them, and that if they choose to do so, counsel will cooperate with that attorney, but that it is not mandatory that they hire their own attorney as counsel will continue to represent them in the present case.

In a separate letter to the insurance company, defense counsel should immediately forward the demand to the relevant adjuster highlighting the amount of the demand, any deadline associated with that demand, and any recommendations. In subsequent conversations with the client, it is appropriate to tell the insured that ordinarily after a Stowers demand, a plaintiff’s attorney will not seek to enforce the excess judgment against the insured’s assets, but will instead request an assignment of the insured’s Stowers’ claim. However, avoid any promises in such a conversation and make sure the insured knows that defense counsel cannot guarantee that plaintiff’s counsel will not attempt to enforce an excess judgment against personal assets.

If defense counsel believes the plaintiff’s time demand to be unreasonable, a letter should be sent to plaintiff’s counsel explaining why counsel cannot respond to the demand in the time available. Typical letters involve requests for additional information, the presence of outstanding medical liens, or a deadline that is unreasonably short or crosses holiday periods. If there are any subsequent discussions between defense counsel’s office and the plaintiff’s counsel about an extension, or a denial of a request for extension, all such conversations should be confirmed in writing.

As a final word about the Stowers/Kelly duty, it is important to remember that such demands are a regular occurrence. There will be situations where Stowers demands are denied. The important standard is whether a reasonable insurer would deny the claim under the same or similar circumstances. Clearly, a $100,000.00 Stowers demand in a lawsuit with a single $250.00 visit to the emergency room should not cause you to lose sleep over potential bad faith liability. However, all Stowers demands should be taken seriously and consistent procedures should be followed.

Multiple Stowers Demands

In a case involving a Stowers demand, multiple claims, and inadequate proceeds, a dilemma is created for an insurer. On one hand, the insurer has a duty to settle with the party triggering the Stowers demand for an amount within policy limits. On the other hand, settling with one party at the expense of other claimants may result in insufficient funds to settle with the remaining claimants or to pay a judgment against the insured.¹⁷

Where there are multiple plaintiffs and only one demand, “reasonable” behavior by an insurer with respect to a Stowers demand is measured by only looking at the initial demand for settlement in isolation. The fact that other claimants may exist is immaterial.¹⁸  Under Soriano, an insurer faced with a Stowers demand from some, but not all, parties to a lawsuit is obligated to accept the demand (if it is reasonable to do so with respect to the demanding parties only) at the expense of the non-demanding parties.¹⁹  Strangely enough, this can create a situation where an insurer is able to craft a settlement that would leave exposed a co-insured party by exhausting policy limits on behalf of another insured.²⁰  Where such an action would exhaust policy limits, the insurer’s duty to the co-insured may in fact contractually terminate.²¹

Conclusion

As you might suspect, this article has only scratched the surface of potential problems that arise in the context of the tripartite insurance relationship. Hopefully, it provides a sufficient picture to make the reader aware of potential pitfalls and other complications involved when defending an insured under an insurance policy with a carrier. 

David W. Lauritzen is an associate in the litigation section of Cotton, Bledsoe, Tighe & Dawson’s Midland, TX office. David handles a wide range of litigation matters and is licensed to practice law in both Texas and New Mexico. David received his bachelor of arts degree, with honors, in political science from Yale University in 1992. David received his J.D. degree from the University of Texas in 1996. While in law school, David served as Trial Director for the Board of Advocates and was a member of the University of Texas National Moot Court Team. David is a member of the State Bar of Texas, State Bar of New Mexico, Texas Young Lawyers Association, Midland County Bar Association, Midland County Young Lawyers Association, and the Texas Association of Defense Counsel. David has authored “The Tripartite Insurance Relationships: Stowers Letters, Kelly Causes of Action, and the Tilley Duty” in addition to being a lecturer at seminars and legal courses taught at the University of Texas of the Permian Basin and Midland College.

1  Employers Casualty Co. v. Tilley, 496 S.W.2d 544 (Tex. 1973).

2  Id., at 558.

3  State Farm Lloyds, Inc. v. Williams, 960 S.W.2d 781 (Tex. App.—Dallas 1997, 
    dism. agr.).

4  Note, Confusion over Conflicts of Interest: Is There a Bright Line for Insurance 
    Defense Counsel, 41 Drake L. Rev. 733-34 (1992).

5  ABA Model Code of Professional Responsibility DR5-105(c) (1980); Tex. 
    Disciplinary R. of Prof. Conduct 1.06 (1989).

6  Charles Silver, The Professional Responsibilities of Insurance Defense Lawyers, 
    45 Duke L. J. 255 (1995).

7  American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 844 n.6 (Tex. 1994); Tilley, 
    496 S.W.2d at 558-59 (Tex. 1973).

8  Bradt v. West, 892 S.W.2d 56 (Tex. App.—Houston [1st Dist.] 1994, writ denied).

9  State Farm Mutual Auto Insurance Co. v. Traver, 980 S.W.2d 625 (Tex. 1998).

10 G.A. Stowers Furniture Co. v. American Indemnity Co., 15 S.W.2d 544 (Tex. Comm’n. 
     App. 1929, holding approved).

11 Allstate Insurance Co. v. Kelly, 680 S.W.2d 595 (Tex. App.—Tyler 1984, writ 
     ref’d n.r.e.).

12 Stowers, 15 S.W.2d at 547.

13 Garcia, 876 S.W.2d at 849.

14 Texas Farmers Ins. Co. v. Soriano, 881 S.W.2d 312, 315-316 (Tex. 1994).

15 Allstate Insurance Co. v. Kelly, 680 S.W.2d 595 (Tex. App. — Tyler 1984, writ 
      ref’d, n.r.e.).

16 Kelly, 680 S.W.2d at 610.

17 Travelers Indemnity Co. v. Citgo Petroleum Corp., 166 F.3d 761, 764 (5th Cir. 1999).

18 Soriano, 881 S.W.2d at 316.

19 Id., at 315; Travelers, 166 F.3d at 767.

20 Vitek, Inc. v. Floyd, 51 F.3d 530 (5th Cir. 1995).

21 American States Insurance Co. of Texas v. Arnold, 930 S.W.2d 196, 202-03 
      (Tex. App.—Dallas 1996, writ denied).

MORE MONTH THAN MONEY
by Craig Hackler
Raymond James Financial Services

Running out of money before running out of month is a common problem not restricted to working class people. Our national savings rate reveals that, on the whole, Americans are pretty dismal savers. Having a hefty income, more often than not, appears to mean hefty expenses as well.

For quite some time now we have been spending as much or more than we earn and consumer debt levels are at or near all time highs. Our political leaders seem to want us to both spend more to stimulate the economy and save more to fund the deficit. A neat trick, if our incomes don’t go up and we’re already up to our necks in debt.

I for one am a strong advocate of increased savings. Our personal balance sheets need the strong dose of equity corporate America is currently giving itself. Since we can’t sell shares in ourselves, let’s all resolve to save more. Saving just $25 per month, invested at 6% yields over $25,110 in 30 years. Anybody born after 1965 has at least 30 years before they turn 65.

How do we help ourselves to increase our rate of savings?  First, establish a long term goal. A well established, written  goal is the foundation of all financial planning. Increased savings may appear to come at the expense of one’s current lifestyle, so a goal that’s worth working for is essential if you want to have any hope of success.

The next rule is, pay yourself first. When you sit down to pay the monthly bills, you should write the first check in the form of an investment toward a long-term goal. The use of automatic debits to the checking account and/or payroll deductions is a marvelous way to begin this program. It will also illustrate the amazing powers of compound interest and dollar-cost averaging over time.  

Third, avoid the over-use of consumer debt, even if it means cutting up a credit card or two. Go ahead, you’ll probably feel better and your wallet will close easier. Almost anyone with a credit card can get a 12% to 19% guaranteed return on their investment just by paying off credit card debt. As a society, we need to learn that the offer of a pre-approved credit card with a $5,000 limit does not translate into a $5,000 increase in lifestyle.

You’ll notice an absence of budgeting in these suggestions. It’s not that budgeting is a bad idea, in fact it’s a pretty good one for some people. However, most seem to lack the discipline it takes to really make a budget work. It’s far too easy to rationalize a budget-busting expenditure, as politicians in Washington are constantly proving.

Most people spend to the level of their income. Their lifestyles automatically adjust upward with every increase in salary. By paying themselves first and avoiding the credit card temptation, their lifestyles will miraculously adjust to their new level of income. After a few months, they won’t even miss the money they’ve begun to save.

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

LEGAL RESEARCH 101
by Joan Olson, CLA

Wilson Mizner said, “If you steal from one author, it’s plagiarism; but if you steal from many, it’s research.”

Why is legal research so important? 

In the non-legal arena, it affects our everyday lives. The homes we live in are constructed in accordance with local ordinances. The televisions we watch are regulated by a federal administrative agency. Our right to publish this newsletter was provided for in the Bill of Rights and upheld by many court decisions. These are just a few examples of how the law affects everyone and almost everything we do.

As for the legal community, attorneys have an ethical obligation to provide competent representation to a client. This requires legal knowledge, which is gained through research. Inadequate research may result in serious consequences, i.e. disciplinary action or legal malpractice. In Smith v. Lewis, 13 Cal. 3d 349, 530 P.2d 589, 118 Cal. Rptr. 621 (1975), an attorney was assessed damages totaling $100,000 for failure to perform adequate research. Therefore, I feel that all paralegals need to be good legal researchers. As with any complex task, a good legal researcher needs to develop a “game plan” that helps her comprehend and complete the research quickly, efficiently and thoroughly.  Like with all good “game plans,” a strategy must be developed, and systematic implementation of those steps need to occur.

1. Gather and evaluate the facts;

2. Identify and organize the legal issues raised by the facts;

3. Find the law;

4. Read and analyze the law;

5. Fully understand the research material and documents;

6. Determine that the law is valid and current;

7. Take effective notes;

8. Accurately write citations;

9. Know when to call it “Quits;” and

10. Effectively communicate the findings.

Another skill that is necessary to become a good researcher is understanding which resources to consult for each situation; the purpose and value of the resources available; and how different resources work together.  To determine which resources to explore, keep an eye out for my next article, which will concentrate on Sources of Authority!

Joan is the Assistant Vice President of Regulatory and Corporate Compliance and Secretary for Southwestern Life Holdings, Inc. and its subsidiaries. She received a BA in Government from the University of Texas in 1991 and in 1992, she obtained her Certificate of Completion from the Paralegal Program at UTA, where she later taught Legal Research for the Continuing Education Program. Currently, she is the President of the Metroplex Association of Corporate Paralegals.