NFPA 2010 Scholarship Essay
The application forms will be available on or before March 15, 2010.
The subject of this year’s essay is:
Pro bono providers, such as lawyers/bar associations in many states do not include paralegals and/or paralegal students in pro bono projects. Although these providers do solicit lawyers to participate, the request does not include non-lawyers. How would you encourage pro bono providers to utilize paralegals and paralegal students to assist in providing pro bono services to those in need?
Applicants are not required to be members of NFPA or its member organization, although membership is encouraged.
Common Word Usage Errors to Avoid in Legal Writing
Sometimes the spell check feature in a word processing program will not show errors in spelling and word usage. Proofreading is an essential part of legal writing. While a carpenter uses a hammer, chisel and other tools in the field of carpentry, “[w]ords are the tools of the lawyer’s craft.” Hollcroft v. Department of Treasury, I.R.S., 687 F.Supp. 510, 517 (E.D.Cal. 1988). U.S. Supreme Court Justice Holmes also observed: “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918). This article discusses some common errors in word usage in legal writing.
advise/advice
The word “advice” is the noun while “advise” is a verb. You should seek the advice of a lawyer. A criminal defense lawyer may advise the client not to take the stand.
breach/beach
“Breach of contract” is sometimes misspelled as “beach of contract.” A “breach” is a seashore area while “breach” means failure to perform a legal obligation.
canon/cannon
A “canon” is a set of code of laws or ethics such as NALA Code of Ethics while a “cannon” is a type of artillery used in warfare and battle.
counsel/council
A “council” is a governing body such as a “city council.” Counsel may be another name for a lawyer or attorney. For example, the Sixth Amendment to the U.S. Constitution provides the right to counsel in criminal prosecutions.
liable/libel
The adjective liable (a three-syllable word) means subject to, obligated to, or responsible for something. The noun or verb libel (a two-syllable word) refers to a false publication that damages a person’s reputation.
quash/squash
Several definitions exist for “squash” including the vegetable or the game played at some elite country clubs with a long-handled racket and a rubber ball. But if you are opposing a motion or a subpoena, the proper procedure is to file a motion to “quash” rather than a motion to “squash.”
statute/statue
A “statute” is a law enacted by a legislative body such Congress or a state legislature. A “statue” is a three-dimensional representation usually of a person, animal, or mythical being that is produced by sculpturing, modeling, or casting such as Michelangelo’s David.
For more examples, check out chapter five in The Little Book on Legal Writing by Alan L. Dworsky available on Google Books.
‘Tis the Trial of the Season
Minnesota School of Business students are hosting a mock trial entitled “Minnesota v. Kris Kringle” on December 10, 2009 at 7:00 p.m. at the Shakopee campus at 1200 Shakopee Town Square, Shakopee, MN 55379; 952-345-1200. Suggested donations are to Toys for CAP. Refreshments will be served following the mock trial.
Grammatical Error Costs Payless Shoes $2.45 million
A recent case from the U.S. Court of Appeals for the Tenth Circuit demonstrates the importance of using proper grammar in contracts and insurance policies. Payless Shoesource, Inc., parent company of Payless Shoes, sought reimbursement from its insurer, Travelers, from a 2003 class action settlement involving violations of the Fair Labor Standards Act. In an opinion written by Judge Neil M. Gorsuch, former law clerk to U.S. Supreme Court Justice Anthony M. Kennedy, the federal appeals court affirmed the decision by the district court.
The dispute involved the meaning of a misplaced modifier in the insurance policy. Justice Gorsuch wrote that “while misplaced modifiers are syntactical sins righteously condemned by English teachers everywhere, our job is not to critique the parties’ grammar, but only, if possible, to adduce and enforce their contract’s meaning. Here, a punctuation peccadillo notwithstanding, the meaning of the parties’ contract is unambiguous.”
The citation for the opinion is Payless Shoesource, Inc. v. Travelers Companies, Inc., — F.3d —-, No. 08-3246, 2009 WL 3739381 (10th Cir. Nov. 10, 2009).
NALS Twin Cities Hosts “A Day in Court”
NALS Twin Cities is hosting a legal event on Wednesday, October 28, 2009 at Fredrickson & Byron, 200 South Sixth Street, Suite 4000, Minneapolis, MN 55402-1425 from 8:30 a.m. to 12:00 p.m. The tentative agenda includes the following speakers: Judge Toddrick Barnette, Criminal Division, Hennepin County and Attorney Brian Johnson, Halleland Lewis Nilan & Johnson. The event also includes a tour of the Government Center, City Hall, and Public Safety Divison. Lunch will be included! Registration fees: NALS Member - $10 before 10/20 or $15 after 10/20; Non-Member - $20 before 10/20 or $25 after 10/20. Contact DeAnne Brooks at 612-335-8895; deanne.brooks@specialcounsel.com.
Tips for Successful Legal Writing
This article discusses a few suggestions and tips for successful writing with a particular emphasis on legal writing.
Write in Complete Sentences and Paragraphs
As a general rule, write in complete sentences and paragraphs. Avoid excessive use of bold, italics, and bullet points. In the era of text messaging and, the art of writing is slowly disappearing. The ability to write effectively can definitely make a difference in your professional and personal life.
Use Active Verbs and Use Active Voice
Use active verbs and active voice for effective legal writing. Limit the use of the verb “to be” in legal writing.
Avoid Legalese
I advocate the use of plain English in legal writing and avoiding legalese. For example, the sentence “The customer slipped and fell on the sidewalk” reads better than “The customer slipped and fell on said sidewalk.”
Capitalization
Capitalize only words that start a sentence and words that are either proper places or names.
Spaces after a Period
Although some debate exists on whether you should use one or two spaces after a period, the most important thing is to be consistent throughout the paper or document. For years, I used two spaces but I have since become a one space writer. Use either one or two spaces after a period at the end of a sentence and be consistent throughout the paper or document. Don’t skip from one space to two spaces throughout the document. Three or more spaces after a period should definitely be avoided.
Font Size and Type
Use a consistent font throughout the paper or document. Although some debate exists on what font type is best, I usually use a generic font type such as Times New Roman, Garamond, or Arial. A 12 point font size is fine. Avoid using a font size smaller than a 10 point font. I dislike Courier.
Delete Html Formatting
For legal documents, I suggest removing any html formatting in both the body of the document when citing sources.
Headings
Headings can be helpful for the reader if used appropriately. Do not start a heading at the bottom of a page without any following text. Headings in bold, all capital letters, or underlined text can be helpful for the reader.
Avoid “Orphans” and “Widows”
A “widow” is a paragraph-ending line that falls at the beginning of the following page thus separated from the remainder of the text. An “orphan” is a paragraph-opening line that appears by itself at the bottom of a page.
Language Used in Civil Law vs. Criminal Law
In civil cases, the defendant can be found liable or not liable. In criminal law, the defendant can be found guilty or not guilty. In tort law, the plaintiff files a complaint. In criminal law, the government files a criminal complaint. Avoid using the term “charged” or “charges” with civil actions in tort.
Limit Use of Pronouns
I suggest limiting the use of pronouns. Using some pronouns is fine but sometimes pronouns are used so frequently, I cannot tell who the author means by “he” or “it” with pervasive use of pronouns. Consider using more descriptive terms such as the “retailer” or “customer” when drafting documents.
“A lot” and “Allot”
The phrase “a lot” consists of two words. “Allot” is a verb that means to distribute or to assign a portion to. The link below contains practice exercises to learn the differences between “a lot” and “allot.” Do not use “alot” in writing.
“Its” and “It’s”
If you can replace “it’s” in the sentence with “it is” or “it has” then the proper term is “it’s”; otherwise the word is “its.”
“Advice” and “Advise”
Advice is a noun that means guidance. Advise is a verb that means to recommend or to offer guidance.
“Council” and “Counsel”
When used as a noun, counsel means “advice”; when used as a verb, counsel means “to advise.” Council refers to a group that advises such as a “city council” or a board. “Counsel” can also be a legal representative of an organization such as a “corporate counsel.”
“Than” and “Then”
This is probably one of the most frequently errors I find in legal writing for today’s paralegal students. Learning the difference between “than” and “then” just takes practice.
Conclusion
In an interview with legal writing guru and Black’s Law Dictionary editor Bryan Garner, U.S. Supreme Court Justice Antonin Scalia said that “writing is very painful for me.” Scalia also mentioned that he goes through every opinion that he writes at least five times for edits. To be an effective legal writer takes time and practice but it is a valuable skill that a person can develop throughout their lifetime.
West Releases Ninth Edition of Black’s Law Dictionary
This week, West releases the new and improved ninth edition of Black’s Law Dictionary. The green cover in the new ninth edition replaces the black cover used in the eighth edition. According to publisher West, the ninth edition includes 2,000 more terms than the eighth edition and 19,000 more terms than the seventh edition.
Editor in Chief Bryan A. Garner, who also authored A Dictionary of Modern Legal Usage and The Elements of Legal Style, has been praised by the ABA Appellate Practice Journal as “the preeminent expert in America on good legal writing” and received the prestigious 1994 Henry C. Lind Award by the Association of Reporters of Judicial Decisions. Garner heads Law Prose Inc., a continuing legal education group that trains judges and attorneys in legal writing and drafting.
Henry Campbell Black, an English legal scholar who authored treatises on topics from contracts to liquor laws, compiled the first edition of Black’s Law Dictionary in 1891.
Courts frequently look to Black’s Law Dictionary as an authoritative and persuasive source to interpret the meaning of words found in statutes and cases. The U.S. Supreme Court cited to Black’s Law Dictionary in 15 of the 80 cases decided during the October 2008 Term. Justices from the U.S. Supreme Court and other courts also cite older editions of Black’s so legal professionals, including lawyers, paralegals, and law librarians, should keep older versions of Black’s Law Dictionary. Legal professionals who want the ostentatious look can purchase the deluxe edition with a bonded leather cover and thumb cuts for access to book sections. To purchase the ninth edition of Black’s Law Dictionary, visit west.thomson.com.
Recent Cases Uphold Paralegal Fees
A number of recent cases have upheld fees for paralegals when awarding attorneys’ fees to prevailing parties. Courts look at the reasonable prevailing market rate for awarding fees for paralegal services. Recent cases have upheld awards ranging from $50-$100 per hour for paralegals. In Nadarajah v. Holder, — F.3d —-, 2009 WL 1588678 (9th Cir. Jun. 9, 2009), the Ninth Circuit affirmed an hourly rate of $100 per hour for paralegals.
There are, however, limits to paralegal fees. Courts may reduce the hourly rate based on the given evidence. In Teresa R. v. Madison Metropolitan School Dist., — F.Supp.2d —-, 2009 WL 1425192 (W.D. Wis. May 20, 2009), the court reduced the paralegal rate to $50 per hour. An hourly rate for paralegal work of $50, rather than $80, was appropriate in calculating the attorney fee where the attorney’s affidavit stated that her firm charged $50 per hour for paralegal work, and $50 was rate used in similar recent case. Id. The United States Court of Federal Claims has declined to award paralegal fees in excess of $125 per hour. See Precision Pine & Timber, Inc. v. United States, 83 Fed.Cl. 544, 553 (2008). Similar to fees for attorneys, paralegal fees also vary by location. Courts often consider the attorney’s affidavit stating the hourly rate for paralegal work as evidence. Courts have also looked at the National Association of Legal Assistants (NALA) Salary Survey to determine the going rate for paralegal services. In Information Sciences Corp. v. U.S., 86 Fed.Cl. 269 (2009), the Court of Federal Claims considered the Legal Assistants’ 2008 National Utilization and Compensation Survey Report (“NALA Report”), that surveys paralegal billing rates nationally to determine the hourly rate for paralegals. The Court of Federal Claims held that a rate of $102 per hour is an appropriate market rate for paralegal services under the Equal Access to Justice Act (EAJA).
Paralegals and Legal Assistants in Film and Television
Television shows and movies have portrayed paralegals, legal assistants, and legal secretaries in a variety of ways. Like other careers, movies and television have given both positive and somewhat negative representations of paralegals and legal assistants.
While the movie Erin Brockovich remains the most famous representation of a paralegal or legal assistant in film or television, other fictional characters also exist.
In the movie Eagle Eye (2008) starring Shia LaBeouf and Michelle Monaghan, Monaghan plays Rachel Holloman, a hard-working single mom who works as a paralegal. In the film, Rachel says she makes $11 an hour. However, according to the National Association of Paralegal Associations (NFPA), the median annual salary for a full-time paralegal in 2006 was $49,060 or approximately $23 an hour based on a 40-hour work week. Similarly, the U.S. Department of Labor reported the average annual salary for a full-time paralegal or legal assistant in 2006 was approximately $43,000 or $21 an hour.
MSB Legal Club Activity 5/30/09
For Spring Term 2009, MSB – St Cloud’s legal students, known as the Amicus Curiae Student Organization, have committed to collecting 34 laundry baskets of items needed by the people served by Anna Marie’s - abused women and children. We are conducting this collection in conjunction with the Sweet 16 Rally & Run for Hope to be held this coming Saturday, May 30th, in Marty, MN, near St Cloud. The organizers of the Rally hope to raise an additional $2,000 to be donated directly to Anna Marie’s.
Our goal is to help MSB-SC student Andrea “AJ” Austad and her daughter Dakota make this collection successful. Here is a list of items needed to fill those baskets:
Disinfecting Wipes
Lysol Spray
Paper Towels / Kleenex / Toilet Paper
Shampoo / Conditioner
Hair Spray
Body Wash
Body Lotion
Also, the person who started the idea, AJ’s daughter Dakota, that has become this huge event was featured in the St. Cloud Times newspaper yesterday. See here: http://www.sctimes.com/apps/pbcs.dll/article?AID=2009105250034
All are invited for a fun day of fun, food, music, games, and door prizes. In addition, there will be a motorcycle run and a softball tournament.
MSB-St Cloud legal students have been working hard collecting items for donation and for door prizes. Many will volunteer to help with the festivities. If more students wish to volunteer, please contact Joseph Bazan (jbazan@msbcollege.edu) or AJ (andrea.austad@students.msbcollege.edu) directly.
We want to thank everyone for their generosity, and we hope to see everyone there!