Litigation paralegals provide an invaluable aid to the legal profession and the litigation process. Litigation paralegals are the backbone of the pre-litigation and trial teams, coordinating the thousands of details that must be accomplished before, during and after the trial. Below is a delineate of the major duties and household tasks of the litigation paralegal from investigation through to a high court appeal.
Litigation paralegals often take the lead in the pre-claim investigation.
The paralegal’s role may involve locating and interviewing witnesses, taking witness statements, gathering documents and evidence, creating case investigation notebooks, organizing documents and creating a chronology of facts. Litigation paralegals on the Claimants side may conduct initial client interviews and perform initial case assessments.
Litigation paralegals on the Claimants side may also assist in drafting pleadings/prayers including the summons, pre-action hearings and supporting affidavits/statements. Paralegals on the Defence side may collaborate with the client to investigate the allegations and formulate responses. Litigation paralegals are often charged with the task of creating and maintaining pleadings indexes and filing pleadings with the court. Paralegals also calendar hearing dates and filing deadlines.
The majority of the litigation paralegal’s time is spent in disclosure. Litigation paralegals aid in drafting interrogatories, requests for production and requests for admissions and other discovery.
Paralegals on the defence side may track down knowledgeable persons within the client organization to help develop responses to interrogatories and other discovery requests.
Paralegals also create and maintain discovery indexes; organize voluminous case files; calendar discovery deadlines; organize, review and analyze documents for production; prepare witnesses summaries; organize, summarise and analyze complex records and assist with e-discovery.
Litigation paralegals often conduct legal research, analyse issues and craft legal research memos. Litigation paralegals also conduct factual research, gathering relevant information from a variety of resources, such as newspapers, libraries, police and resorts, trade associations and the media.
The litigation paralegal’s communication and organization skills are invaluable in the pre-trial stage of the litigation. Litigation paralegals organise and index exhibits; prepare trial binders, and manage document-intensive files. Litigation paralegals also serve as a liaison between the trial lead barristers and third parties such as witnesses, clients, vendors, experts and courtroom personnel. If the trial will take place out of town, litigation paralegals often coordinate the logistics such as setting up the conference rooms, reserving hotel and office space and acquiring equipment.
At trial, litigation paralegals are the barristers right hand. Paralegals organize exhibits, documents and evidence; arrange for transporting and setting up files and exhibits in the courtroom; prepare and issue subpoenas; assist in preparing witnesses; research and evaluate prospective jurors; and serve as a liaison between clients, witnesses, experts, vendors and the trial team.
In the courtroom, litigation paralegals assist with voir dire and jury selection; handle exhibits; pull needed documents; assisting witnesses; preparing witness files; detecting trends; taking notes on behalf of the advocates; order and reviewing trial transcripts; and interact with clients, vendors, experts and courtroom personnel. Paralegals may also help prepare conduct post-trial interviews of the jurors.
Litigation paralegals often assist the legal profession with case settlement. Their role may include gathering and organizing data and information needed for settlement; creating settlement terms, distribution statements or negotiations checklists; drafting settlement agreements and releases, and assisting at pre-trial conferences.
Litigation paralegals assist with identifying issues for appeal; gathering and organizing documents for a record on appeal and/or a joint appendix; indexing cases for a table of authorities; assisting in the research and drafting of appellate documents, and filing documents with the court.
Guidance to NALP Paralegals – Supplying Legal Services and Holding Out
Paralegals are individuals who perform legal tasks and who may offer legal services but they are not practising Barristers, Solicitors or Chartered Legal Executives.
As such, paralegals are not statutorily regulated but are bound by the Members’ Code of Practice and Ethics through NALP, their membership body.
NALP is the longest running self-regulatory body for paralegals in the UK.
2. Who is this guidance for?
This guidance relates to paralegals who wish to provide legal services to employers or to the public, whether such paralegals are employed or self-employed. It also addresses restrictions on ‘holding out’ as a barrister, solicitor or chartered legal executive in connection with the supply of legal services.
It is a criminal offence for a paralegal to provide legal services which are Reserved Legal Activities under the Legal Services Act 2007. This guidance provides advice on what legal services may be provided by a paralegal and the rules which must be followed when doing so. NALP will also indicate what its preferred practice may be in certain circumstances.
Consumers who receive legal services from paralegals should be aware that such paralegals are not subject to the same regulatory safeguards that would apply if they instructed a qualified barrister or solicitor with practising certificates.
3. What are Legal Services and Reserved Legal Activities?
Code 3 of the NALP Members’ Code of Conduct and Ethics determines that you must not carry out any reserved legal activity unless you are entitled to do so under the Legal Services Act.
Under the Legal Services Act certain legal services are reserved to those who are authorised to provide them. Such services are known as ‘reserved legal activities’ which are as follows:
- the exercise of a right of audience; ?
- the conduct of litigation; ?
- reserved instrument activities; ?
- probate activities; ?
- notarial activities and ?
- the administration of oaths.
?As it is now a criminal offence to carry out a reserved legal activity without being authorised, it is important that NALP Paralegals are clear that they are not authorised and therefore not permitted to carry out these services.
Advocacy is not a reserved legal activity unless it involves the exercise of a right of audience. Thus, advocacy before an arbitrator or other tribunals where rights of audience are not required is not a reserved legal activity nor is representing a client before a District Judge in Chambers in a County Court, although NALP’s preferred practice would be to give notice of acting to the Court or Tribunal beforehand.
The rule is therefore that NALP Paralegals are generally not authorized to carry our Reserved Legal Activities unless they are exempt. For example, A person is considered to be exempt if a ‘right of audience’ has been granted by a specific court in relation to specific proceedings, but this will be on an individual basis as is dependent on the discretion of the court.
Paralegals can, therefore, offer legal services to clients that are not deemed to be reserved legal activities.
In addition to not providing reserved legal services, you must not provide immigration advice and services unless authorised to do so by the Office of the Immigration Services Commissioner (OISC). Immigration work is not a reserved legal activity under the Legal Services Act 2007, but it is regulated under another statute. Paralegals, even with a NALP Licence to Practice, are not entitled to carry out immigration services unless authorised by the OISC.
4. Holding out as a barrister, solicitor or chartered legal executive
Code 2 of the NALP Code of Conduct and Ethics for Members provides that you must not hold out eg give the impression expressly or impliedly to the public in general or to any individual specifically that you are a qualified and practising barrister, solicitor, chartered legal executive, conveyancer (unless you are Licensed by the Council for Licensed Conveyancers (CLC)) or notary public
?5. How can NALP Paralegals describe themselves on a business card or through their business?
The fundamental principle is that you must not mislead or allow anyone else to mislead any person to whom you are offering legal services.
Referring to yourself as a Lawyer: the term Lawyer is a generic term which is defined as: ‘a person who practises or studies law’ – technically, therefore, a Paralegal can refer to him/herself as a ‘lawyer’ provided it does not mislead anyone. To call yourself a ‘Paralegal Lawyer’ is explicit and therefore preferred practice by NALP.
6. Why do special rules apply to NALP Paralegals who supply legal services?
Legal services, other than reserved legal activities, can be supplied by anyone and are not subject to any special statutory regulation. However, NALP Paralegals are members of a well established Professional Body that is highly regarded in the legal sector and therefore has strict codes of conduct and ethics. All members of NALP have been through a rigorous checking procedure. Those NALP Paralegals with a NALP Licence to Practice are subject to important eligibility requirements, such as having Professional Indemnity Insurance (PII) and keeping their professional knowledge up-to-date through Continuous Professional Development (CPD). NALP recommends that all NALP Paralegals wishing to offer legal services to the consumer, cover themselves by providing a letter clearly stating their limitations – see Appendix below for suggested wording.
7. What can I say about what I do as a paralegal, in my marketing materials and on social media?
As mentioned above, any materials or documents that you supply to your clients or to any employer must be explicit. NALP’s preferred practice is to always emphasise that you are a NALP Paralegal and are therefore not able to perform certain activities that are normally reserved for qualified solicitors and barristers. It is also NALP’s preferred practice that NALP Paralegals when offering their services should make reference to: ‘access to justice at a reasonable cost’.
This letter/statement, or an explanation containing the same information on the points shown in bold, must be given to any client to whom you offer to provide legal services and you must receive written confirmation that they have received it before providing any such services.
Your name: Date:
This statement is to explain my status in offering to provide you with legal services. Although I am qualified Paralegal, I am not entitled to practice in the same way as a solicitor or barrister.?Therefore, in providing any legal services to you I am not acting as a solicitor or barrister and I am not subject to many of the rules which regulate practising solicitors or barristers.? This limits the services I can provide to you. I can provide you with legal assistance (as a Litigation Friend) and represent you before certain Tribunals and in the Small Claims Court, but I cannot exercise rights of audience in Court, meaning that I have no automatic right to represent you in any open court without the express permission of the court. However, I am able to assist you and guide you through the court process and help you complete court documents.
I aim to provide you with a good service and if you have any concerns about what I do for you, please let me know and I will try to resolve the problem. But you should know that you would have only limited rights to complain about me to anyone else.
The Legal Ombudsman, which can adjudicate on complaints about poor service by practising barristers and solicitors, cannot consider any complaint against me, because I am a paralegal and therefore, this is beyond their remit.
However, if I cannot resolve your concerns, you can complain to NALP, my Professional Membership Body, and it will investigate whether I have failed to comply with any of the rules which apply to me. If NALP finds that the complaint against me is justified, it can sanction me and ultimately, can suspend my membership and withdraw my details from the Licensed Paralegal Register.
I am (am not) covered by professional indemnity insurance.
Signed: David Cox Date: 2/Febuary 2016
Last modified: 7th October 2018