The Paper Chase: Preparing Documents

• Author: Scott A. Hatch/Lisa Zimmer Hatch
• Profession: Founders of The Center for Legal Studies and developed their award-winning paralegal curriculum in 1980, offering it through 600 colleges nationwide
• Pages: 145-173

CHAPTER 10 The Paper Chase: Preparing Documents 145

Chapter10

The Paper Chase:

Preparing Documents

As a paralegal, you need to familiarize yourself with all the types of docu-

ments that are relevant to the practice of law. This chapter covers the most

important civil law legal documents in rough chronological order as they

show up in the course of litigation. We focus on civil law rather than criminal law

because paralegals are most apt to prepare documents for civil litigation. These

documents range from the demand letter that tells the opponent to “cough up”

prior to ling a lawsuit all the way to the appellate brief that seeks to either over-

turn a losing decision or uphold a winning verdict. After we explain what each

document is used for and what it contains, we show you what they look like and

give you tips on how to draft each one.

Communicating in Writing:

Types of Legal Documents

We think that the best way to introduce you to the multitude of legal documents

involved in a common civil law action is by taking you through a hypothetical

case. In order to highlight the important types of legal documents, assume that a

prospective client, Kelley Klutz, has just slipped and fallen on the vinyl tile surface

IN THIS CHAPTER

»

Getting familiar with the voluminous

amount of civil case documents

»

Grasping the techniques for creating

powerful and proper legal documents

146 PART 3 Putting It into Practice: The Paralegal in the Civil Litigation Process

of Worst Deal electronics store while comparing the prices and features of karaoke

machines. As a result of the fall, Mr. Klutz suers a broken hip. Mr. Klutz knows

of a particular law oce’s reputation for integrity, competency, and great parale-

gals, so he calls and briey discusses his case with the attorney, Ima Gogetter.

Getting started: Preliminary documents

Ms. Gogetter suggests that Mr. Klutz arrange an appointment with her paralegal

and asks the paralegal to prepare an intake memorandum based on the initial

client interview. The intake memo summarizes background information about

Mr. Klutz, details the facts of the slip and fall, and proposes the action that

Mr. Klutz would like the law oce to take on his behalf. An intake memorandum

is just one of the many types of memoranda of law that paralegals often prepare.

After submitting this intake memo to Ms. Gogetter, Pat Paralegal calls Mr. Klutz

to tell him that Ms. Gogetter has oered to represent him in a slip-and-fall action

against the electronics store under a contingent fee agreement.

A contingent fee agreement is one where the attorney gets paid only if the client

wins the lawsuit. In other words, the attorney’s fees are contingent on a favorable

outcome of the case. A retainer agreement, on the other hand, provides that the

client pays the attorney an hourly fee for services no matter what the outcome. In

either case, although the attorney might make advance payments for necessary

costs associated with litigation, the client is ultimately responsible for repaying

those costs regardless of whether the case is won or lost.

After reading and agreeing to the terms of representation, Mr. Klutz and

Ms. Gogetter execute the contingent fee agreement and the attorney/client rela-

tionship begins. A typical contingent fee agreement stipulates that if the case is

settled before trial, the client will keep 67 percent of the settlement proceeds after

costs are deducted, and the attorney will keep the remaining 33 percent. If the case

doesn’t settle before trial, a typical contingent fee agreement provides that the

attorney will retain 40 percent, or even 50 percent, of the award as a result of a

favorable trial court decision. The contingency percentages are negotiable so that

given a strong case with clear-cut liability, the attorney may agree to keep less

than 33 percent because strong cases don’t usually require lengthy settlement

negotiations or trials.

Defendants in tort cases (cases that concern non-contractually-based civil wrongs)

and both parties in non-tort cases (civil cases that don’t involve a tort, such as

contracts and divorces), usually execute retainer agreements with their attorneys.

Retainer agreements provide for a certain sum of money to be paid up front as a

retainer and specify an hourly fee for services, which are usually billed monthly.