Settling the family affair: Domestic law

In most jurisdictions, the family law courts have the most crowded dockets, which means that employment opportunities for paralegals in family law firms abound.

Here are some of the common types of cases handled by a family law practice:

• Name changes
• Prenuptial and antenuptial agreements
• Common law and ceremonial marriages
• Contract cohabitation
• Annulments
• Separation agreements
• Divorce settlements
• Restraining orders
• Paternity and illegitimacy
• Parental liability and torts
• Child custody matters, including visitation and support
• Collection of delinquent support payments
• Adoption
• Emancipation of minors
• In vitro fertilization and surrogacy

As a paralegal working in the field of domestic law, you often deal with people who are quite desperate for help, which requires empathy, understanding, and objectivity on your part. Having a sociology, psychology, or related background helps when you work in a family law environment; those who’ve experienced divorce or other domestic issues are excellent candidates for paralegal work in a family law practice because they have the compassion that comes from having been there.

In family law practice, your office’s client may be trying to win visitation rights to see her children. Another client may be struggling through a divorce and trying to get the child support he needs to survive. A couple may be desperately trying to adopt a child. The nature of the cases can make domestic law an emotionally challenging yet rewarding area in which to work.

Because of the sensitive nature of domestic law issues, maintaining discretion and impeccable ethical standards is absolutely crucial.

However emotionally charged domestic law cases may be, they’re still decided in the court system. These cases often go to trial so, as in all civil litigation, your paralegal assignments may include several different duties. You may interview clients to secure information about the case and interview the client’s friends, family, and others to obtain eyewitness or expert testimony or character witnesses (we get into more detail about interviewing techniques in Chapter 12). Your supervising attorney will likely ask for your assistance in drafting discovery, pleadings, and motions (see Chapter 10 for document drafting techniques), and you’ll be instrumental in insuring compliance with discovery requests, serving subpoenas, and assisting at trial.

You may have to do a little investigative work as well. Ascertaining parties’ assets is important in drafting prenuptial agreements and determining spousal and child support in divorce cases, so you may have to collect information on somebody’s sources of income, assets, and expenses. Investigative work can get complicated in some cases, so you may need to enlist the services of a private investigator to gather evidence of wrongdoing on the part of a spouse or of abuse committed by a parent.

Domestic law contains a little of everything and most cases involve issues of immediate importance to the client. Most domestic law offices don’t even shut down fully on weekends. So, if you’re no stranger to hard work, long hours, and multitasking, and you have a compassionate shoulder to cry on, family law may be a good fit for you.

You can find out more about some of the elements of domestic law in the latest editions of Divorce For Dummies by John Ventura and Mary Reed and Law For Dummies by John Ventura, JD (both published by John Wiley & Sons, Inc.).

Looking to the future: Estate planning

Estate planning and probate are areas of law that are surprisingly interesting for both attorneys and paralegals. Wills and trusts can be complex documents specifically tailored to match the wishes of clients. Family members often go to court over the validity of wills and the distribution of assets. Planning for the future allows you to use all your skills and intellect on behalf of the client.

As a paralegal, you can take part in most aspects of estate planning. You can assist your supervising attorney with the initial client meeting. Later in the process, you can draft wills and trusts. And, when the time comes, you can act as the liaison with the probate court. Paralegals are integral to the entire estate planning process. Although you can’t represent clients in court, there are very few aspects of estate law that you won’t be involved in. Here’s a quick look at some of the elements of estate planning:

• Creating a will: A will allows a person to decide what will happen to his assets and property when he dies. He wants to know that his will is carefully written and can stand up to legal challenges. As a paralegal, you may participate in discussions with clients and assist in plans to distribute their assets. You may be asked to assist your supervising attorney with drafting wills according to the wishes of clients.
• Acknowledging nonprobate instruments: When a client comes in to discuss a will, that client may not be thinking of other means of wealth transfer. As part of the legal team, you may help clients consider all the ways they can pass assets to their beneficiaries, and not just those included in their wills. As you become familiar with nonprobate instruments, you’ll be better able to help your office’s clients fulfill their wishes.
• Helping out after the client dies: When a client dies, all assets that pass through a will to beneficiaries or assets that pass intestate (those who die without a will) pass through the probate court system. If a client dies intestate, the court awards portions of the estate to the deceased’s relatives based on how closely they were related. As a paralegal, you may be asked to help one of the deceased’s family members obtain the share of the estate she’s entitled to. At this point, the issue moves from one of family planning to one of civil litigation. Of course, you can avoid lawsuits among relatives and the threat of Uncle Sam’s inheriting someone’s hard-earned dollars by some forward thinking and professional estate planning. That’s why estate planning is so important.

• Litigating a will: Just because someone dies with a will doesn’t mean everything’s peachy keen. All sorts of unresolved family issues crop up when a will is involved. When someone dies, there’s the potential for a lot of money to change hands. Those who are excluded from a will, especially if they’re close family members, often challenge the validity of the will. If the will is broken (found to be invalid), an earlier will may become valid, or the assets may pass as though the deceased had no will. Those who challenge wills are usually the family members who have the most to gain from breaking the will.

  In estate planning practices, the client authors the will and has reasons for distributing assets a certain way. Even after the client has died, your office still acts on his behalf to see that the will is enforced. It’ll be your job as a member of the legal team to be so good at estate planning that you avoid will contests due to alleged fraud or undue influence.

• Frauds and forgeries: Sometimes it’s questionable whether the deceased actually wrote the will, so descendants may challenge wills because they think they’re fraudulent. If your supervising attorney specializes in estate planning, you may be asked to investigate the legitimacy of wills for the descendants of the deceased. Or if a will suddenly appears that’s different from the one your office has on file for a client, you may have to investigate the authenticity of the surprise document. Note: To prevent challenges to your office’s clients’ wills based on fraud allegations, your and your supervising attorney should make sure that several competent adults sign a client’s will as witnesses to its validity.
• Undue influence: Heirs may challenge a will with allegations that the author of the will was under undue influence or coercion when he signed the will. Examples of exerting undue influence on a will maker include making physical threats, overmedicating the author during the process, applying mental manipulation, and providing gratuitous favors in exchange for consideration. Assisting with cases of undue influence requires keen investigation skills.
• Lack of capacity to make a will: Heirs may challenge a will with allegations that the author of the will lacked the necessary mental capacity when she signed the will. This may require medical professionals and other witnesses to testify as to the mental state of the will’s author.

Estate planning law may be for you if you’re organized and like working with forms, numbers, financial issues, and people. When you work in estate planning, you can expect to play an important role in the process. Your focus may include any or all of the following:

• Drafting documents, like wills and trusts
• Researching pertinent inheritance and tax laws
• Gathering and filing client asset information
• Communicating with clients and their beneficiaries
• Locating heirs
• Maintaining bank accounts
• Drafting tax returns
• Preparing settlements

You can find out more about estate planning in the latest edition of Law For Dummies by John Ventura, JD (John Wiley & Sons, Inc.).

Keeping up with capitalism: Business law

Business law represents another high-growth area for paralegals. In addition to private law firms that specialize in corporate law and have long used paralegals, corporate legal departments, banks, real estate companies, and insurance companies have increasingly hired paralegals and continue to do so. Currently, paralegals in the business law area take on duties that, in the past, were performed primarily by attorneys.

Attorneys usually advise business clients on which business organization (sole proprietorship, partnership, corporation, or limited liability company) is best for them to adopt. And their paralegals often draft the initial startup documents and documents necessary for the subsequent smooth flow of the business structure.

Some of the things you may be responsible for when you help your attorney’s client initiate a new business include

• Registering the corporate name
• Drafting the articles of incorporation and by-laws
• Preparing to issue stock
• Completing the documents necessary for a corporate bank account
• Drafting employment contracts
• Filing paperwork with the IRS
• Preparing documents to obtain business licenses

After the business is up and running, your tasks may include preparing documents for shareholder meetings, writing the minutes of completed meetings, drafting stock-option plans, reviewing lease agreements, drafting articles of a merger or consolidation, preparing reports for regulatory agencies, and obtaining the necessary authorizations to do business overseas.

Business law doesn’t usually focus on litigation because businesses want to avoid litigation if at all possible. The legal staff perpetuates this goal by helping businesses plan well and avoid disputes that might lead to unnecessary government regulation or defending a lawsuit. So, corporate legal professionals plan for possible difficulties in advance. They structure deals and documents with great care so litigation isn’t necessary if partnerships split up, employees need to be fired, or the business dissolves. Registering business names, logos, or slogans avoids the possibility of conflict with another business that may already use the same name, logo, or slogan. Drafting employment contracts, working with state and federal regulators, obtaining the proper licenses and insurance, checking lease agreements, and carefully recording stock transactions keep businesses, and the legal professionals who represent them, out of court. You’ll know that you have been part of successful legal team for a business if after many years that business hasn’t been involved in litigation.

Because business law deals more with documents than litigation, you may not face as many long hours and stressful deadlines as litigation paralegals do. But job pressures do exist in business law, especially when one corporation acquires or merges with another, when a privately owned company issues stock for the first time, or when a company begins to do business overseas. These events require precise legal documentation and may lead to tremendous workloads for a period of time.

Business law can be very interesting and challenging, especially if you have a business background. You’ll have the opportunity to work on important assignments that affect the future of companies of all sizes. And if you decide to work as a freelance paralegal, that company could be your own!

You can read more about the law pertinent to business in the latest edition of Law For Dummies by John Ventura, JD (John Wiley & Sons, Inc.).

Providing debt relief: Bankruptcy law

When an individual or business carries more debt than can possibly be paid off, the solution may be bankruptcy. Legal representation is almost always necessary during a bankruptcy, and attorneys who specialize in this technical and rapidly changing area of law rarely take on other types of cases.

Special courts hear bankruptcy cases. The U.S. Bankruptcy Courts are a part of the U.S. District Courts. States aren’t allowed to regulate bankruptcy law and state courts may not hear bankruptcy cases.

As a paralegal working in the area of bankruptcy law, your duties won’t vary greatly from case to case. You can work for bankruptcy attorneys who specialize in representing debtors or for attorneys who represent creditors.

On the debtor side, the legal team interviews the client to gain an initial summary of the financial situation and proposed dates for the bankruptcy filing. Based on the information that the client supplies and that you collect, your supervising attorney advises the client on the appropriate type of bankruptcy for him (Chapter 7, Chapter 11, Chapter 12, or Chapter 13), or the attorney may advise the client to pursue a course other than bankruptcy. (Bankruptcy has very serious implications for an individual’s credit rating, so it should be implemented only as a last resort.)

If the client decides to pursue bankruptcy, you draft and file the necessary petitions with the bankruptcy court. You may attend court hearings with the client and the attorneys. Depending on the client’s repayment plan, you may need to file monthly reports with the creditors and maintain a log of debts that your client owes.

If you work on the legal staff that represents the creditor, your job is to make sure your client receives its fair share of the debtor’s nonexempt assets. The creditor side requires keeping track of filing deadlines and drafting legal documents as well.

Bankruptcy may not seem as exciting as a high profile personal injury litigation practice because procedures remain pretty much the same for each case, but some cases involve other areas of law, like family law, probate, business law, real estate law, and criminal law — so bankruptcy practices may be more diverse than you think. And bankruptcy law practices tend to keep more normal work hours than other litigation practices. On the debtor side, providing relief to those who are in serious financial difficulty makes bankruptcy law a rewarding area to work in.

You can find out more about bankruptcy law in the latest edition of Personal Bankruptcy Laws For Dummies by James P. Caher and John M. Caher (John Wiley & Sons, Inc.).

Placing the blame: Personal injury law

Although some high-profile personal injury scams make it seem that people file injury suits just to cash in at the expense of a deep-pocket corporation, most cases are serious and involve permanent injuries, substantial pain and suffering, and even death.

To understand personal injury cases, you need to know about tort law. Chapter 5 provides a much more detailed explanation of the key elements of this area of law. Essentially, the two defining features of personal injury claims are harm and negligence. As a paralegal working in this area, you may be responsible for gathering proof of the harm done, including medical records, police reports, and insurance estimates. If you work with the defense, you may be seeking these documents in order to show that the harm doesn’t exist or is minimal. If you work with the plaintiff, you need to establish the full extent of the client’s injuries.

The harm done must be caused by another’s negligence. Persons are said to be negligent if they fail to use the ordinary care that a reasonable person would use and this failure results in another person’s injuries. Under the reasonable person standard, the defendant is not liable for the injury to another if the injury was purely accidental. However, if the injury is foreseeable, and the defendant does nothing to prevent it, the defendant is likely negligent and liable for the harm she causes.

Ideally, cases for personal injury accomplish two things:

• They provide compensation for someone who has suffered harm.
• They modify the behaviors of individuals and businesses that may harm others.

As a paralegal working in the field of personal injury, you play a part in helping the system work properly. By working vigorously for the client, either as a plaintiff or defendant, you’ll help ensure that people who are truly injured by the negligence of others are compensated and that those cases involving no harm or pure accident are dismissed.

In personal injury law there are a wide range of assignments for paralegals:

• You may be asked to do investigative work — such as taking notes and photographs — at the scene of the injury.
• You may do research into previous cases with similar fact patterns or into laws that apply to the client’s case.
• Under your employer’s supervision, you may draft motions, complaints, settlement offers, and appeals.
• You may search for and interview witnesses and arrange for experts to testify at trial.
• You may prepare the exhibits, maps, and charts the attorney uses during trial to make the client’s case.

Questioning the bedside manner: Medical malpractice

Medical malpractice is a specialized area of personal injury law that involves complicated issues and lots of expert testimony. Medical malpractice is unlike any other area of personal injury law because of the complex scientific and ethical issues raised.

The standard of negligence in a common personal injury suit is the reasonable person standard, but in medical malpractice this standard doesn’t fit. A reasonably prudent person who’s not a medical professional probably wouldn’t know what to do when confronted with a compound fracture, for example. So, in medical malpractice, the standard takes into account the specialized knowledge and skill of the medical professionals, which leads to a much higher standard of conduct.

Although the law imposes this high standard of conduct, it also allows the medical profession to determine what reasonable conduct is for doctors, nurses, dentists, pharmacists, and other medical workers. At the heart of a medical malpractice claim is the question of whether the defendant acted within the bounds of common practice of the medical profession. This standard, in turn, places a heavy burden on the plaintiff to prove to the jury what the appropriate standard of care should be. This almost always means that the jury will hear testimony from expert witnesses who are also medical professionals. Your job may be to secure the testimonies of the experts that best support the client’s case.

Being a paralegal in the field of medical malpractice may be one of the most challenging careers to pursue. A background in science and medicine is sometimes required. Here are just some of the challenges facing a paralegal in this field:

• Investigating complex procedures
• Deciphering medical and legal jargon
• Taking testimony from expert witnesses
• Trying to create a case that is clear to the average juror

This area of law is not for everyone, but if you can become an expert medical malpractice paralegal, you’ll be in high demand.

A new career is emerging in the legal field, and it’s called legal nurse consultant. Attorneys have long recognized that they have too little medical knowledge to assess medical malpractice cases on their own. So, they rely on seasoned registered nurses (RNs) who know about the law to help them out. If you’re an RN with an interest in the law, you may enjoy this very lucrative option. Many nurses have found second careers in legal nurse consulting by combining a paralegal education with their medical experience.

All that glitters: Entertainment law

The types of cases available to an entertainment law paralegal vary considerably. In the period of only a few months, all the following lawsuits were filed:

• The original creator of a popular television show sued the movie studio that two decades later released a movie based on that TV show.
• A famous guitar manufacturer sued another company with similar-looking guitars.
• The author of a book distributed via late-night infomercials sued the state of New York because that state’s Consumer Protection Board allegedly interfered with the sale of his text on natural cures.
• A restaurant owner sued the publisher of a guide to restaurants for writing a review indicating that people didn’t go to the restaurant for the food.
• The author of a previously published book sued the author of a new book, alleging the new book was just a reworked version of the earlier work.

Despite the variety in these cases, much entertainment law boils down to two issues: copyright infringement and breach of contract. Entertainers hire attorneys to protect the ownership of their craft, negotiate and litigate their contracts, and protect their reputations.

Although all clients deserve their privacy and are protected by attorney/client privilege, being a paralegal in the entertainment industry may require more discretion than any other area of law. The tabloid papers as well as the mainstream news are always hungry for more information about celebrities. You may have access to information that must be kept secret. If you can’t show the proper amount of discretion, your career in entertainment law will be very short indeed.

The job of an entertainment law paralegal encompasses many types of law. You may be involved in drafting sound contracts or securing copyright protection, and your entertainment law firm will inevitably enter litigation when the contracts are breached or the copyright is infringed upon. So, if you have experience in the entertainment business and feel confident about your skill level, you may feel at home in entertainment law.

Preserving the American dream: Real estate law

Real estate law can seem fairly routine when all goes according to plan. As a real estate paralegal, you may be involved in preparing all the documentation necessary for a real estate deal to close. You may be assigned to

• Conduct the title search of the property to be closed
• Prepare a preliminary abstract of title and opinion of title
• Negotiate for title insurance coverage
• Review the mortgage contract and application for mortgage
• Prepare quitclaim deeds for any third parties who may have easement rights to the property
• Appear at closing
• Notarize documents at closing

Another aspect of a real estate practice is landlord/tenant law. When a person signs a lease for property with another person, potentially volatile legal issues may result. Because a lease is a contract, breach-of-contract cases are common in landlord/tenant law. General terms of leased property follow the dictates of state law, and generally landlords and tenants can’t break a lease without legal justification. (For more information, check out the latest edition of Law For Dummies by John Ventura, JD [John Wiley & Sons, Inc.], which contains a section on buying and selling real estate.)

As a real estate paralegal, landlord/tenant relations may provide you with some of your most interesting and challenging work. You assist your supervising attorney in keeping on top of state laws governing leases and help craft leases that address all possible renting nightmares. In case of a dispute, you’ll need to assist with drafting and filing the necessary paperwork on behalf of your office’s client, either the tenant or owner in a lease arrangement. Real estate legal professionals provide their clients with advice that preserves the clients’ rights.

Another interesting area of real estate law involves zoning questions. Zoning laws regulate what kinds of uses can be made of land in a specific area. When businesses and individuals seek a variance in the standard zoning, they often employ the help of real estate law professionals. For example, a business may want to operate in a residential area. The first step in the process is consulting with local officials to obtain the variance. If the request is denied, the landowner may have to go to court to try to get the desired permission.

The types of things you’ll be doing if you become a real estate paralegal really depends on the type of real estate law you choose to work in. You can work with a firm that does mainly title searches and closings, which results in fairly steady and predictable work.

If you work with commercial or residential leases, you learn to expect the unexpected. The entire relationship between landlord and tenant is based on one person using another person’s property. Although this situation usually works out well for both parties, when things go wrong it can be a race for the courthouse door. The only acceptable place for landlords and tenants to settle their disputes is in the courtroom. As a paralegal working with leased real estate, you can expect to perform many of the duties associated with various other areas of law. For example, you’ll need to write contracts as carefully as you would in business law. And landlord/tenant issues may go to trial and produce the work commensurate with other civil litigation cases.

You may also choose to work for a firm that takes on real estate cases involving government taking of property, zoning issues, covenants and restrictions used by homeowners associations, easements, and adverse possession of property. Many of these unusual cases also involve civil litigation, while others require filings with local, state, and federal regulatory bodies. Some issues, like the government’s taking of land, may even involve constitutional law.

If you enjoy a little variety and have a real estate background, you may fit right in with a real estate law practice.

Dealing with the IRS: Tax law

As a tax law paralegal, you may assist the IRS attorneys who attempt to collect taxes from citizens or the private attorneys who represent individuals and corporations that the IRS pursues. Cases involving the IRS may be criminal or civil. The majority of tax issues are civil, but if the IRS can prove that an individual or business has committed tax evasion (deliberately falsifying records and engaging in other activities to fraudulently reduce tax liability), the government may impose criminal charges. In those cases, a criminal attorney would likely represent the defendant, and the duties and procedures would follow those specified for criminal cases (see Chapter 5).

Although it’s possible to work as an IRS paralegal with both the benefits and liabilities of working for the federal government, the majority of positions for tax paralegals are in firms providing private defense for civil tax matters.

For tax matters, presumption of innocence doesn’t exist. If the IRS determines that someone owes $100,000 in taxes, that individual must pay the amount or provide proof that the government is wrong. Otherwise, that unfortunate soul is likely to face huge penalties and interest and may even be charged criminally. However, IRS’s computations are often incorrect. The combination of complex tax laws and dealing with a federal agency makes handling tax matters without the help of an attorney undesirable, which is where tax paralegals come in handy.

As a paralegal working for an attorney who helps individuals and businesses stare down the government, your tasks will likely include the following:

• Communicate with clients regarding securing records and documents to support a challenge of the IRS’s tax determination
• Provide documentation and research results to IRS agents and attorneys
• Draft and finalize letters on behalf of your supervising attorney to clients and the IRS
• Work with accountants to obtain records and documentation
• Prepare IRS forms and documents (such as Forms 433A, 433B, 4868, FBARS, and voluntary disclosure letters)
• Conduct legal and factual research
• Advise the supervising tax attorney on legal and tax strategies
• Analyze a client’s tax liability
• Enter clients’ financial data into tax software
• File tax returns on behalf of a client
• Collect, organize, and manage tax documents from clients
• Maintain a client activity and task log
• Draft Installment Agreements and Offers in Compromise
• Create finished case files for supervising tax attorney

If you enjoy working with data, are good with numbers, and are equally comfortable communicating with clients and government representatives, you may enjoy working as a tax paralegal.

Clarifying the rightful owner: Intellectual property law

Intellectual property (IP) law involves protecting intangible assets. These assets may be in the form of artistic endeavors and copyrights, and in this area, the duties of an intellectual property paralegal may be very similar to those of a paralegal who works in entertainment law (see “All that glitters: Entertainment law” earlier in this chapter). Additionally, IP may include inventions, designs, certain phrasings, trademarks, service marks, patents, and trade secrets. Your work environment may be a government agency or in-house as a paralegal of a company who needs to protect its intangible assets, or you may work for the IP attorneys whom individuals and businesses hire to help them protect their ideas and inventions. Regardless of the workplace, an IP paralegal may be called upon to work in these aspects of IP law:

• Research existing trademarks, service marks, and patents to determine the originality of a client’s product or service
• Work with clients to create online patent and trademark applications with the U.S. Patent and Trademark Office
• If necessary, file requests for reconsideration when an application is denied or the patent office requires additional information
• Register a copyright with the U.S. Copyright Office
• Record copyright transfers or terminations for clients and otherwise manage existing trademarks, service marks, and patents
• Draft and review licensing agreements
• Assist with litigation associated with copyright or patent infringement

Because inventions often concern products and services related to technology, many IP attorneys have expertise in science and engineering. So, having a background in the sciences may help you communicate with clients better and understand the mechanics behind certain inventions. If you have an interest in technology and enjoy working with documents, working as an IP paralegal may be right up your alley.