jan - feb 2010 wspa newsletter

Jan/Feb 2010 Volume 25 Issue 1

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Findings & Conclusions

ContentsPresident's Corner 1

Management Directory 2

Management Reports 4

Military Outreach 7

Professional Development 11

Guest Articles 14

President's Cornerby Brian Haberly, RP

www.wspaonline.org

Index to Advertisers Advertiser Page

713 Training 9CourtsOnline 5T-Scan Corporation 10Unisearch 9Watkins Court Reporters 15Advertising rates and information: page 3

The Washington State Paralegal Association hasremained a strong, vital organization for many years.In fact, in 2010, we will be celebrating our 35th yearas a Paralegal Association – one of the oldestparalegal associations in the entire nation!

One of the things that sets Americans apartis our willingness to help others in need. The re-cent earthquake in Haiti brought out the best inmany of us, as over $350 million dollars in private

contributions from citizens like you and me was raised in just thefirst couple of weeks following the disaster. When Hurricane Katrinastruck New Orleans, many people sent money, supplies, or person-ally volunteered in disaster relief. Some Washingtonians openedtheir hearts and their homes to displaced families or even cherishedpets that no longer had owners who could take care of them.

I’d like to speak to WSPA members about something thatstrikes close to home. As WSPA members there is a great currentneed for each of us to step up and help out our fellow paralegals whoare struggling. As you know, the economic challenges that our coun-try has faced during 2009 — and extending now into 2010 — havenot been any easier for those of us in the legal profession. I wouldbet that each of you reading this column personally knows someonewho has either lost their job, or perhaps graduated from a paralegalprogram and not yet been able to find their first paralegal position,despite months of searching.

Today I am issuing a Call to Action to all our WSPA mem-bers and friends reading this column. It has never been more impor-tant for each of us to step up and make a personal commitment tohelp our fellow members and our association to grow and thrive. Ichallenge each of you to commit to helping at least one fellowparalegal in need. That doesn’t mean providing financial support, butrather offering a caring, friendly ear to listen and care. Or it maymean offering to help review someone’s resume and cover letter andoffer your suggestions or just be a good proofreader. Or it may meanoffering moral support and words of encouragement to someone whoneeds to be uplifted. If you can by them a cup of coffee and meetwith them now and then, that would mean more than you know. Show-ing that you care is one of the greatest gift you can give!

In this economy, many of our friends have been out of workfor an extended period of time. This can lead to a feeling of isolation,fear, and depression. Those of you reading this column have thepower in your hands (and yes, even while sitting at your computer) tomake a real difference in someone’s life now, today. Will you accept(continued page three)


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2009 - 2010MANAGEMENT DIRECTORY

In-State: (800) 288-WSPA (9772)E-Mail: [email protected]

Web Site: http://www.wspaonline.org

OFFICERS

PresidentBrian Haberly [email protected] & AdministrationSue [email protected] DevelopmentDonna [email protected] [email protected] [email protected] Past PresidentTheda Yandell RP

NFPA REPRESENTATIVESNFPA Primary RepresentativeSue [email protected] RepresentativeJeanenne [email protected] AmbassadorLaura [email protected]

DIRECTORS

East King Co. DirectorTami [email protected] DirectorMichelle [email protected] DirectorJeanenne [email protected] Puget Sound DirectorBarbara [email protected] [email protected] WA. Chapter [email protected] Co. ChapterDirectorSarah [email protected] King CountyDouglas [email protected] Chapter DirectorAmy [email protected] At-Large, [email protected] At-Large, WestBrenda [email protected]

COMMITTEE CHAIRS

CLE Approval CommitteeChairStephanie [email protected] Bank Committee [email protected] Program ChairJennifer [email protected]/Issues [email protected] Bono CoordinatorDebbie [email protected] Coordinator/EditorJay [email protected] Paralegal CoordinatorJeanenne Rutherfordmilitary-paralegal-support@[email protected]

ADMINISTRATORDiane BevinsAssociation Services, Inc.P.O. Box 58530Seattle, WA 98138-1530(206) [email protected]


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Washington State ParalegalAssociation

Original items printed here are the property of WSPA.We ask that National Federation of Paralegal Associa-tions (NFPA) member associations who reprint articlesfrom Findings and Conclusions, credit the article andprovide WSPA with a copy as reprinted. Others may notreproduce original material for any purpose without prior,written consent of the WSPA Newsletter Editor.Publication of any advertisement does not imply endorse-ment of the product/services offered. WSPA reservesthe right to reject advertisement due to content or spaceconsiderations.

ADVERTISING RATES:Dimensions Month to Month Pre-Paid One Year

(6 Issues)1/8 page $ 50.00 20% discount1/4 page $100.00 20% discount1/2 page $150.00 20% discountFull page $200.00 25% discount

Contact [email protected] for additional ad-vertising information.

Findings and Conclusions is the official publication of theWashington State Paralegal Association and is publishedsix times per year. Letters to the Editor, articles, adver-tisements or correspondence should be submitted to:

WSPA Newsletter EditorP.O. Box 58530Seattle, WA 98138Email: [email protected] Email: [email protected]

All submissions are due the 20th of each odd numberedmonth for publication the following month. Articles maybe submitted on disk in Word format or via Email.

The Editor reserves the right to edit material for clarity,space or advertising.The articles published herein expressthe opinions of their authors and, unless expressly stated,do not necessarily reflect those of WSPA

(President’s Corner continued from page one)this challenge?

As this newsletter edition is going to press, WSPA has just completed our 2010 Paralegal CareerNight and Student Dinner. Over 90 people registered for this year’s event, and most of those took part in thepopular Resume Review Workshop that preceded the dinner program. Our speakers provided some greatinformation for attendees. Additional details and some photos from the event are found elsewhere in thisnewsletter.Finally, I want to call your attention to three upcoming dates of interest. First, on Saturday, April 10th, we willbe hosting a special WSPA Board Meeting at the Seattle Public Library on Capitol Hill. This will be a greatopportunity to meet some of your statewide leaders and to learn more about how you can help make WSPA asuccess in 2010 and beyond! Next, on May 7th, we will hold our Spring CLE and Annual Awards program.More details will be announced on this soon!In late April/early May, we will be holding our Annual Elections for the term of office that runs from June 1st 2010through May 31, 2011. All Officer positions and about half of our Chapter Director Seats will be up for electionat this time. Watch your email and the WSPA web site for additional information about both of these opportu-nities! Take charge of your future, and get involved in your profession. You own your career, and participationin your Professional Association will help propel you to the next level!

Findings and Conclusions is the official publication of the Washington State Paralegal Association and is pub-lished six times per year. Letters to the Editor, articles, advertisements or correspondence should be submittedto:

WSPA Newsletter EditorP.O. Box 58530Seattle, WA 98138Email: [email protected] Email: [email protected]

All submissions are due the 20th of each odd numbered month for publication the following month. Articles maybe submitted on disk in Word format or via Email.

The Editor reserves the right to edit material for clarity, space or advertising.The articles published herein ex-press the opinions of their authors and, unless expressly stated, do not necessarily reflect those of WSPA


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Management Reports

Membership ReportSue Beichley, Vice-President, Membership

If you have not renewed your membership, there still is time to renew your WSPAmembership for 2010! Membership Renewals are now due for the Membership year of January1 to December 31, 2010. Renew via Credit Card online today http://www.acteva.com/booking.cfm?bevaID=190985.

If you wish to pay via check or require an invoice to process payment for multiplemembers at one time, please contact our Association Administrator at 1-866-257-WSPA or viaemail at [email protected].

We’ve made it easier than ever to retain your full voting status. We encourage you toreport your 2009 CLE Credits using the accompanying Declaration of CLE Attendance form.You no longer need to send in individual Certificates of CLE Attendance you have collected.The completed CLE Declaration can be either faxed, mailed, or emailed into WSPA at P O Box58530, Seattle, WA 98138-1530 or via Fax to: 206-575-9255, or scan and email it to:

[email protected] Benefit! WSPA Members can now obtain personal disability protection, group disability plan

supplementation, and even business overhead expense, all at a discounted rate! The cost savings availablethrough our chosen provider, Standard Insurance Company, may more than pay for your WSPA Annual Member-ship Dues! For more information and sample rates, click on the link below. To determine which option is right foryou, please email Dan Cobb of Dan Cobb & Associates ( [email protected] ) for more information or call himat 425-289-1900 or 1-888-452-6647.

When you join WSPA, you automatically become a member of NFPA (the National Federation of ParalegalAssociations). A portion of your dues paid to WSPA is paid to NFPA. You will receive all of the benefits of NFPAmembership in addition to your WSPA benefits!

If you have any questions, please contact me at [email protected].

My name is Douglas Wright and I am the new South King County Chapter Director. I am excited to have opportu-nities to build memberships in the South King County area. Over 80 members elected their chapter afflation withthe South King County and I am looking forward to meet with all of you. Please save the following dates on yourcalendar to attend our chapter meetings. The venue of the meetings will be announced a few weeks before the dateof event. Meetings will be held on Thursdays in the first week (except in September due to Labor Day weekend) ofApril, June, September and December. Our first meeting on Thursday, April 1 is going to be a networking night witha speaker(s) to address career development and job market outlook. 6:30 - 8:30 Thursday, April 1: SKCO Networking Night: Featured presentation: “Your career and job marketoutlook” (including mini-resume clinic) White Center - King County Library at http://www.kcls.org/whitecenter/directions.cfmPizza or light snack will be provided. Members: Free of charge; Non-members: $56:30 - 7:30 Thursday June 3: Litigation related topicLocation: TBD6:30 - 7:30 Thursday September 16: Ethic related topicLocation: TBD6:30 - 7:30 Thursday December 2Location: TBDI am also looking for volunteers to help our chapterI am also looking for volunteers to help our chapter to build membership base. If you are interested in taking aninitiative, please contact myself Doug Wright at [email protected].

South King County ReportDoug Wright, South King County Chapter Director


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WSPA's Mission: To enthusiasticallysupport and promote the paralegal profession in theState of Washington.

We are dedicated to the enhancement of the paralegalprofession.We strive for personal and professional development.

We will encourage increased utilization of paralegals tobroaden employment opportunities statewide.

We advocate high quality paralegal educational programsin preparation for entry into the profession.

We hold our members to high standards by requiring 10Continuing Legal Education credits per year to retain fullvoting status or to hold an office in the Association.

We will monitor proposed state and federal legislationaffecting paralegals and will participate in the legislativeand regulatory process to represent our Members' views.

Management Reports

Michelle Snow-Waltz RP, Northwest Chapter DirectorNorthwest Chapter Report

Our first brown bag of the year was held on February 17, 2010, at the Elder Law Offices of Meyers & Avery,2828 Northwest Avenue, Bellingham, Washington. Jaime Blouir of LawAdvocates described volunteer opportuni-ties available with Law Advocates. (Hint: Here’s how you get those pro bono hours that are so important to everyprofessional paralegal and give back to your community at the same time.)

The brown bag for March will be held in Mount Vernon. We are very excited about the topic, but can’tdivulge more until we’ve worked out all the details. Keep checking the WSPA calendar and look for our flyer aroundthe first week of March.

The WSPA Northwest chapter works closely with the two local colleges – Skagit Valley College andWhatcom Community College. In fact, member Christi DelNagro is President of the Skagit Valley College ParalegalClub; soon-to-be member Glen Bristow (2009 Paralegal of the Year) is Chairperson of the Skagit Valley CollegeParalegal Advisory Committee; and Michelle Snow-Waltz is a member of the Advisory Committee. Six studentsattended the WSPA Student Career Night and Dinner in January. The resume workshop is always very helpful,especially for those students scheduled to graduate soon. A special thank you goes out to those who made itpossible for the students to attend the event.

The Skagit Valley College recently announced that the Washington Supreme Court’s nine justices aregoing to visit the campus and hear arguments on three of its cases at the college on February 22 and 23, 2010.Some of our Chapter members hope to attend as the justices will dedicate the new legal resource library and on-campus legal clinic.

Glen Bristow reports that he has completed the 42 hour Skagit Domestic Violence and Sexual AssaultServices training, and has been volunteering by staffing the hotline and helping out at the shelter. We won’t go intodetail here, because we hope to convince Glen to submit a report for a later newsletter detailing the role paralegalscan play as volunteers in their local domestic violence and sexual assault clinics after receiving the requisitetraining.

Our chapter members are looking forward to a new year full of activities. It appears that we have gainedseveral new members, and we look forward to seeing all new members at our brown bags and chapter meetings.


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Brian Haberly, RP

Over 90 enthusiastic paralegal students and current paralegals attended the 2010 Career Night andParalegal Student Dinner at the Red Lion Hotel In Seattle on Friday, January 29th. The evening began with a wellattended Resume Review workshop, where students received personalized feedback in brief one-on-one reviewsof their current resume from our panel of experts.

Socializing and a sit-down dinner began at 6 pm and there was plenty of electricity in the air as guestsfrom several different paralegal programs were in attendance. Our six guest speakers presented short talksabout different legal specialty areas, tips for networking and finding open positions, identifying transferable jobskills to overcome lack of legal experience for new paralegals, proper interviewing preparation, and much more! Some fun door prizes helped add to the excitement.

Many thanks to our six guest speakers, Margaret Au, Mike Fuller, Shelly Langley, Amy Lechner, Rich-ard Sherman and Allison Williams. Brian Haberlyemceed the program. Special thanks go to SueBeichley, WSPA VP of Membership who servedas the 2010 Dinner Chair, worked with volunteersto help organize and promote the event, sentconfirmation letters to our speakers, helped setup the Registration table and prepared name tagsand greeted guests as they arrived.

Other WSPA members playing key rolesin the success of the 2010 dinner include JoshNormand who contacted several paralegalschools and prepared the printed dinner programhandout; Sarah Eisenhauer, Snohomish CountyChapter Director, who spoke to Edmonds Com-munity College students about the dinner; SandraSwartz who helped at the Registration Table;Yoshiko Kato, who worked a the Registration

Table and promoted the event at Highline Commu-nity College; Brenda Cothary, WSPA At-Large Di-rector West, who greeted guests and assisted atthe Resume workshop; Barbara Esselstrom, SouthPuget Sound Chapter director, who helped at the reg-istration table, reviewed students’ resumes, assistedspeakers, and promoted the event at Fall Social atHighline CC, Doug Wright, South King County Chap-ter Director, who promoted the event at a Fall Socialat Highline CC and also promoted the Student Din-ner event at Tacoma CC together with Fall CLE;Kimiko Kasazaki who served as Hotel contact, re-served our meeting room, worked out menus andpricing; organized volunteers for registration table;assisted in finding speakers; and more, and Kimber-ley Tibbert, who took photos of the event.

Student Dinner Report

Management Reports


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Military Outreach

HELP WSPA SUPPORT NAVYPARALEGALS AROUND THE WORLD

The Washington State Paralegal Association is a founding member of the NFPA Military Paralegal Outreach program. Thisprogram seeks to unite paralegals serving overseas in the US Armed Forces with local paralegal associations by sendingperiodic “Care Packages” of non-perishable food, snack, hygiene and other miscellaneous items (books, games, stationery,etc.) to bring them a little bit of home while away from their loved ones.

WSPA was one of the original 8 paralegal associations across the country that participated in the very first group mailing toactive duty Military Paralegals serving overseas back in February 2006. In the first year of this program, NFPA memberassociations supported 29 Navy Legalmen and Military Paralegals. WSPA is proud to have supported six militaryparalegals since this program was first begun. Jeanenne Rutherford is now accepting donations (cash and food items) inthe Seattle area. You can reach her at [email protected].

Suggested Items:

Hygiene: Food:Antibiotic Ointment Single Serving Pasta LicoriceChapstick/lip balm/Carmex Ready to Heat Soups Sunflower SeedsSunscreen (Bull Frog is good) Lunchables Aqua DropsBug Repellent (with deet) Ramon Noodles GumFace cleaner Powdered Power-Aide/Gator-Aide/ Peanuts in a shellEye drops/Saline Koolaid/Tang Rice Krispy TreatsLiquid hand sanitizer/Baby wipes Granola Bars/Cereal Bars Snack CakesFoot/body powder (Gold Bond) Fruit Roll-ups Misc:Misc:Misc:Misc:Misc:Deodorant Raisins CondimentsShampoo/Conditioner Beef Jerky (no pork) Lemonade/Ice Tea MixTooth Brush/Toothpaste Applesauce Cough DropsNose spray/nose drops Fruit/Pudding Cups Stationery/envelopesHand/Body Lotion Cereal (individual Servings) Stamps/PensBand-aids, Mole Skin Chex Mix Dice/Travel GamesSoap Tuna Kits Individual Instant CoffeeMouth Wash Snacks:Snacks:Snacks:Snacks:Snacks: Books/MagazinesNail Clippers Hard Candy (no chocolate-it melts) Tylenol/IbuprofenDental Floss Snack Mix Allergy MedicineTums/Rolaids Chips/Cookies/Crackers/Microwave Ziploc BagsTylenol/Aspirin Popcorn/Pretzels Instant CamerasQ-Tips Pop Tarts RainX


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Washington State ParalegalAssociation

Disclaimer

Unless otherwise indicated, the authors of the submissions contained in Findings &Conclusions are paralegals. All reports, profiles, summaries, checklists, articles, orother submissions are provided for informational purposes only, and are not intendedas legal advice and should not be relied upon for that purpose. All opinions expressedin any submission are the authors’ sole opinion and should not be taken as theopinion or position of the Washington State Paralegal Association.


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Washington State ParalealAssociation


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Washington StateParalegal Association


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Professional Development

My name is DonnaZiegler and I have been a Litiga-tion Paralegal for about 15 yearsnow. Prior to becoming aparalegal, I worked as a court re-porter, reporting Superior and Su-preme Court trials, Environmen-tal hearings, Juvenile Court de-pendency hearings, and mentalhealth hearings at Western StateHospital. I earned my AA in le-gal studies and court reportingfrom Green River Community Col-lege, and am just completing a BAin Business Management. Fromhere I plan on continuing my edu-cation and earning a Masters inParalegal Studies, or perhapseven law school. I have workedfor many different attorneys, fromsmall injury litigation with DavidVail & Associates and SmithAlling Lane, to heavy medicalmalpractice and nursing homeabuse litigation with Leemon +Royer, to trial litigation with JohnR. Connelly, Jr. I am presentlythe Litigation Paralegal for StevenG. Lingenbrink. I love this workand find it not only challenging,but exciting.

When I am not working, Iam running half marathons andmountain biking. I am also rais-ing a wonderful 15 year old daugh-ter.

As the new VPof Profes-sional Development, I will be be-gin a series of articles surround-ing professionalism in theworkplace, how to deal with con-flict, office politics, power strug-gles, organizational behavior. Wewill discuss negotiation styles,management skills, career devel-opment, litigation, and style.These articles will not solely fo-cus on the paralegal profession,however, will be tools to assistanyone who may need guidancein the workplace.

lPOWER, POLITICS ANDCONFLICTProfessional Development Series I

I. COMMUNICATION –DESTRUCTIVE/CONSTRUCTIVECONFLICT

Conflict is definitely a partof everyone’s life. People seemto be automatically wired to haveconflict of some type. Be it an ar-gument, a simple discussion re-garding the day’s activities, who willbe making dinner, what projectsneed to be accomplished, who willperform certain functions on thejob, which team member will leadand which will follow, simple dailydialogue can lead to conflict. Notall conflict is destructive however.Conflict actually is a part of humandevelopment. It is a fact of humanlife. “The study of conflict is abasic human requirement and thepractice of constructive conflict isan essential set of interpersonalskills.” (Wilmot/Hocker, 2007)

Destructive conflict is aform of conflict between people thatcauses mental and physical healthproblems. Destructive conflict canoccur in many settings – at work,at home, in marriage, in friend-ships, at the grocery store, etc.Destructive conflict includes dia-logue between people which con-tains blame, attribution that some-thing is wrong, sharp words andoften defensiveness. When peopleare confronted with conflict, theirbody goes into immediate survivalmode. When people use destruc-tive conflict, defensive communica-tion, they are communicating adesire to protect themselvesagainst pain, fear, personal respon-sibility, or new information.

For example, an associateattorney is being yelled at by aSenior Partner because he madean error in a brief that cost the

client a lot of money. The asso-ciate is being told he is incompe-tent, “How could you do this?!How could you make such amistake??? !!! What are youthinking?!! Are you an idiot?!!Do you have a brain?!” Theassociate’s mind immediatelygoes into overdrive – he is beingattacked. He thinks he has onlytwo options – yell back at his su-perior and tell him to kiss his be-hind, or withdrawal, avoid the con-flict altogether and let his superiorcompletely demean him. Heconsiders himself the lower powerand his superior the higher power.There is a power imbalance –“when one party has more powerthan the other, the conflict is un-balanced.” (Wilmot/Hocker, 2007)During a destructive conflict, thereis always one person who feels asthough they are the lesser of thetwo people. They will tend to with-drawal to protect themselves, orargue to a point of complete de-spair.

Constructive conflict isimportant to any relationship. Inthe above example, the SeniorPartner would definitely benefitfrom classes in communicationmanagement to learn how to prop-erly speak with his younger asso-ciate. Rather than throwing outaccusations and hurtful and de-meaning remarks, he can createa more supportive climate, ratherthan a defensive climate, which willget him much further with his as-sociate. The way the Senior Part-ner yells and demeans his asso-ciate creates a defensive atmos-phere, rather than a supportiveenvironment in that he is beingjudgmental creating a defensiveresponse. He is being controlling,rather than working to solve theproblem.(continued next page)

Power Politics and ConflictBy: Donna Ziegler, Litigation Paralegal, VP Professional Development


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(continued from previous page)When one tries to control anotherperson, one insists on specificdetails, shutting down communi-cation, instead of working togetherto solve the problem. Using spon-taneous communication freesboth parties of deception, allow-ing them to communicate honestly,in a straightforward manner.

Dropping the superioritycomplex and using equality isalso a much better option whencommunicating. No one enjoysbeing talked down to. No oneenjoys being talked to like a child.

Conflict, again, is definedas “an expressed struggle be-tween at least two parties whoperceive incompatible goals,scarce resources, and interfer-ence from others in achieving theirgoals.” (Wilmot/Hocker, 2007)Conflict is expressed through com-munication. Destructive conflict,or destructive communication,causes damage to all parties in-volved because it involves criti-cism, defensiveness, stonewallingand contempt. Constructive con-flict involves collaboration, usinggood listening skills, talkingopenly and discussing issues ina more positive light, rather thanplacing blame. Conflict does nothave to be a fight or an argument.Each party needs to come to thetable with a positive light, be ma-ture, and discuss their opinionsopenly.

II.POWER IN CONFLICT – WHOHAS MORE POWER?

This then brings us topower struggles in conflict andcommunication. Power strugglesoccur in every relationship. Powerstruggles occur most frequently atwork and in marriages. At workthere is always the struggle be-tween the senior managers or theboss and lower managers or ad-ministration. We see this oftenin the legal profession.


Attorneys sometimes forget thattheir legal assistants andparalegals are just as much a partof the team as others. Oftentimesparalegals are talked down to andorders are barked rather than givenin a professional manner.

It is difficult for most peo-ple to deal with others with morepower. Or at least, others who areperceived to have more power.What is Power? Power is de-scribed as (1) designated power,power given by your position (suchas a boss, a husband, a manager,etc.) (2) distributive power, either/or power, (3) integrative power, both/and power.

The dictionary lists manydefinitions for power:· Capable of doing or ac-complishing something;· Great or marked ability todo or act – strength – might – force;· The possession of controlor command over others – author-ity – ascendancy;· Legal ability – capacity –authority;· A person or thing that pos-sesses or exercises authority orinfluence.(Dictionary.com, 2009)

To many, power is a littlescary. To many of us, we see peo-ple in positions of power as strongerand more intelligent. We look topolice officers, politicians, power-ful attorneys, regulatory agencies,bosses and teachers as peoplewith power. When confronted bythese people of power, the normalperson may feel a little bit less of aperson.

Having conflict with a per-son of power can be incredibly in-timidating. One’s perception ofanother person’s power is most of-ten what drives the communication.Examples of this type of powercomes into play again in law firmsfor instance where the trial attor-ney is incredibly powerful, very in-telligent, and oftentimes an

incredibly intimidating attorney.These lawyers are often brilliant,the best in their community, thebest at what they do. They areoften very well known, very activein the community, and always winbig, very high profile cases. Onthe outside they seem like bigteddy bears, but at the office, be-hind closed doors, when con-fronted by these powerful people,it can be very intimidating.

The higher power personis most often in a position of au-thority. People of power are lookedto as being smarter, more intelli-gent, figures of authority, etc. If ahigher power person attempts tohave a constructive conflict with aperson of lower power, it may of-ten turn into a destructive conflictbecause the lower power personbecomes intimidated and does notknow how to act or react to thishigher power. Struggling for powerwill also lead to destructive con-flict. “Destructive struggling forpower leads to a downward spiralof more thwarting and inferenceand to a lessened ability to ac-complish goals, shared powerleads to a synergy of power crea-tion through productive communi-cation.” (Wilmot/Hocker, 2007)

Power conflicts can beworked through if both partiesagree to come to a medium. Thehigher power must realize that bylimiting their power influences theycan get clearer and more effectivecommunication. The person oflower power needs to stop avoid-ing the higher power and stay en-gaged. Rather than begin stuckin a downward spiral of self-defeat,the lower power needs to speakup and present their strengths,make it clear to the higher powerwhat one’s goals, beliefs, and val-ues are, and state differences withconfidence. “Courage is requiredto bring up differences when apower imbalance is in place.”(continued next page)


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III. PREVENTING DE-STRUCTIVE CONFLICT ANDOPENING COMMUNICATION –BEING PROACTIVE

To prevent means “to an-ticipate, to forestall, to come be-fore, to be in readiness for an oc-casion, to deprive something ofpower, to hold or keep back, andto deal with beforehand.” Usingpreventative measures at work toforego destructive communicationwith your boss is the best avenue.If you are an avoider, avoiding theboss, avoiding the conflict, not ac-tively engaging in communicationbecause you may be afraid a de-structive argument will ensue, willlead to complete withdrawal andwill never solve the ultimate prob-lem.

The best course of actionin any environment is engaging ineffective communication. Ratherthan be frightened of your boss, beproactive, prepare projects, com-plete tasks, and present him withfinished work before he even asksfor it. Talk to him on a daily basis.Recall past arguments and avoidusing comments or gestures thatcause negativity during conversa-tions. Perhaps take steps to re-visit a prior argument and discussit with your boss. Be proactive,and hopeful that he will also wantto engage in a constructive con-versation and realize that you arewilling to work through issues in amature, professional fashion. Al-ways be specific with your wantsand needs. You are a profes-sional, and going about any con-flict or power struggles in a profes-sional way will only give your bossmore reason to respect you.

REFERENCESWilmot, W. & Hocker, J. (2007). In-terpersonal Conflict. Chapter 1, TheNature of Conflict.(pp. 2, 18, 19). Boston : McGraw Hill.

Wilmot, W. & Hocker, J. (2007). In-terpersonal Conflict. Chapter 4,Power: The Structure ofConflict. (p. 95, 115, 120, 125, 128). Boston : McGraw Hill.

Dictionary.com (2009). Retrievedfrom the internet January 28, 2010;http://dictionary.reference.com/browse/power

Wilmot, W. & Hocker, J. (2007). In-terpersonal Conflict. Chapter 11,Preventing DestructiveConflict. (pp. 326-338). Boston :McGraw Hill


CAESAR:Who is it in the press that calls on me?I hear a tongue, shriller than all the music,Cry “Caesar.” Speak, Caesar is turn’d to hear.(20)SOOTHSAYER:Beware the ides of March.CAESAR:

What man is that?BRUTUS:A soothsayer bids you beware the ides of March.CAESAR:

Set him before me; let me see his face.CASSIUS:

Fellow, come from the throng; look upon Caesar.(25)CAESAR:

What say’st thou to me now? Speak once again.SOOTHSAYER:

Beware the ides of March.CAESAR:

He is a dreamer; let us leave him. Pass.


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(Will be published in the June 2009issue of SUE Magazine)

If you’re like most people,the word “ethics” makes you thinkof moral guidelines for doing what’sright. As applied to the legal pro-fession, ethics goes a step furtherand also covers rules of conduct,integrity, and duties of care we’reobliged to follow when we choosethis career.

Giving all readers the ben-efit of the doubt, there’s no needto cover the moral integrity part.We’ll focus instead on the ethicalduties relating to e-discovery inher-ent in the profession, those im-posed by federal law and statute,and duties set in place by recentcase law.

Duty of Competence andZubulake

Though this also seems tobe a given, there is a “duty of com-petence” outlined in ABA ModelRules of Professional Conduct Rule1.1: Competence that states, “Alawyer shall provide competent rep-resentation to a client. Competentrepresentation requires the legalknowledge, skill, thoroughness,and preparation reasonably neces-sary for the representation”. Likemost general rules, it’s very broad.However, in the context of e-dis-covery, it is supported and ex-panded on by court decisions andthe revised Federal Rules of CivilProcedure. Two good sources fore-discovery related law are the ex-cellent searchable index by thegood people at K&L Gates: https://extranetl.klgates.com/ediscoverv/and Michael Arkfeld’s site, whichalso has state rules: http://www.elawexchange.com.

The duty of competenceextends beyond legal knowledgeto “skill, thoroughness, and prepa-ration”. This is underscored

(with a thick line!) in what havecome to be known as the“Zubulake duties”. In a series oflandmark decisions by DistrictCourt Judge Shira Scheindlin inNew York, which culminates inZubulake V [Zubulake v. UBS, 229F.R.D. 422 (S.D.N.Y. 2004)

A new discovery respon-sibility was imposed on attorneys:the duty to supervise c-discoveryby speaking directly with their cli-ent’s IT personnel, and understandwhat they say. This is a blind spotfor many legal professionals astechnology continues to becomemore complex while the volume ofelectronically stored information(ESI) continues to growexponentially. The Zubulake dutiesextend further to include a respon-sibility on outside counsel to makecertain that all potentially relevant£51 is identified and placed “onhold”. This places a high duty onoutside counsel to know the de-tails of their clients’ IT systems andthe location of responsive informa-tion, to ensure that the evidenceis preserved, and that productionis timely.

What happens if this dutyisn’t met? Litigants and their at-torneys can be sanctioned. Thisis best illustrated in Phoenix Four,Inc. v. Strategic Resources Corp.,No. 05-CIV-4837, 2006 WL1409413; 2006 U.S. Dist. LEXIS32211 (S.D.N.Y. May 22, 2006).In this case, the law firm and cli-ent were both sanctioned for theattorneys’ failure to personally in-vestigate and understand the lo-cation of their client’s IT structureand location of the ESI. Manyother cases exist that follow suit(no pun intended!), so these deci-sions aren’t unusual and will be-come more commonplace unlessthe duties are met.

Most all federal and state courtsfollow the Zubulake duties andediscovery training for federal mag-istrates has been ongoing for sev-eral years, so ignoring this duty isrisky at best.

Rule 26 and CoopentionWhen the FRCP was re-

vised effective December 2006,many things changed to addressediscovery and its impact on liti-gation in general. Rule 26 of theFRCP requires parties, before theinitial case management confer-ence, to (a) discuss any issuesrelating to preserving discoverableinformation; and (b) to present tothe court a discovery plan settingforth the parties’ views concerning“any issues relating to disclosureor discovery of electronicallystored information, including theform in which it should be pro-duced”. This imposes a duty toconfer early in matters where ESIis involved. At an c-discovery con-ference I recently attended, I askeda panel ofjudges if they’ve seenany changes on the part of attor-neys in light of this duty. The an-swer was a resounding “No”. Infact, one judge said that anyonewho comes into her court withouttaking their duties under Rule 26seriously gets to hear two words:“adverse inference”.

In addition to conferringearly, Rule 26 has other sectionswhich revolve around the c-discov-ery duties and responsibilities ofattorneys. Rule 26(g) in particularhas received a lot of attention dueto the recent opinion by Judge PaulGrimm in Mane/a, et aL v.Mayflower Textile Services Co., etal., USDMD No. 1:08-CV-00273-CCB (decided Oct. 15, 2008). Therule requires that every discoverydisclosure, request, response(continued next page)

Guest Articles

Ethics in E-Discovery: More than Just an IdealDoug Kaminski, Director, Océ Business Services


15

(Continued from previous page)or objection must be signed by atleast one attorney of record, or theclient, if unrepresented. It also addsa penalty if a lawyer or partymakes a Rule 26(g) certificationthat violates the rule, without sub-stantial justification. Basically, thecourt (on motion or, on its own.. .sua sponte) must impose an ap-propriate sanction. To date, judgeshave been lenient in imposingsanctions for Rule 26(g) violations,but that’s changing.

This tracks well with theZubulake duties outlined above asit requires attorneys to investigateand understand before signing offon their 26(g) certifications. In his30 page opinion, Judge Grimmsent a message to all members ofthe Bar, not just the parties in thismatter. He takes all attorneys totask for not understanding or fol-lowing either the letter or spirit ofRule 26(g). Once sanctions areautomatically and consistentlyimposed by the judiciary, it’s un-likely anyone will continue to ig-nore 26(g) duties.

Judge Grimm’s opinion isimportant to ethics in e- discoveryfor another reason: it’s the first tooutline the laws and rules that re-quire a cooperative approach todiscovery. This is more than a novelconcept. The Sedona Conferenceissued their Cooperation Procla-mation in July of this year (http ://www.thesedonaconference. org/content/miscFiles/CooperationProclamation. pdf). The Mayfloweropinion adds teeth to the Procla-mation by showing that coopera-tion is already mandated by thelaw. At the same conference men-tioned earlier, I asked the panel ofjudges about the Mayflower opin-ion and their thoughts relating toit. All applauded Judge Grimm andvoiced similar support for coopera-tive discovery. . .and fewerleniencies for those who areUNcooperative.(continued next page)

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Definition of a Paralegal – as defined byNFPA and WSPA

A Paralegal is a person, qualified through education, trainingor work experience to perform substantive legal work thatrequires knowledge of legal concepts and is customarily, butnot exclusively, performed by a lawyer. This person may beretained or employed by a lawyer, law office, governmentalagency or other entity or may be authorized by administrative,statutory or court authority to perform this work. Substantiveshall mean work requiring recognition, evaluation,organization, analysis, and communication of relevant factsand legal concepts.


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(continued from previous page)Duty of Confidentiality

Everyone in the legal pro-fession understands the reasonsfor confidentiality. These are out-lined in ABA Rule 1.6: Confidenti-ality of Information. But what hap-pens when there is an inadvertentdisclosure of information? Both theproducing party and opposing partyare in an interesting moral and ethi-cal situation. Two recent develop-ments related to the duty of confi-dentiality are clawback agreementsand the “shelf life” of client data.

Clawback agreementsaren’t new, but they are becomingmore important due to how easy itis to inadvertently produce ESI toopposing counsel. FRCP Rule 26covers this as well in 26(b)(5)(B)by stating the receiving party “mustpromptly return, sequester, or de-stroy the specified information andany copies it has” afler being dulynotified. Clawback agreementsbetween parties to comply with therule add more weight, especially ifthey’re specific. But that stillleaves the receiving party with thetemptation and, in some jurisdic-tions, the right to take a “quickpeek”.

Enter new Federal Rule ofEvidence 502, signed into law as5. 2450 on September 19, 2008 byPresident Bush. While it waspassed to help reduce the overallcost of discovery, it also providessome protection against inadvert-ent waiver of privilege if informationis unintentionally disclosed to theopposing party. The full text of 502can be found here:

hup ://www.uscourts. gov/rules/52450.pdf.

An emerging trend that’srelated to the duty of confidential-ity has to do with the “shelf life” ofclient data. The scenario is this:law firm serves as outside counselfor a client and defends them in acivil matter. Everything goes wellfor the client, the case is over,

and life goes on. A year later, thesame client is involved in anothermatter and plaintiff’s counsel sub-poenas any data relating to thatclient from the law firm that han-dled the earlier matter. In most situ-ations, this would be no problem... but the law firm still had all theclient data from the review on theirservers and chances are good thatit’s now readily accessible and dis-coverable. Welcome to the newworld of data management in lawfirms.

A common problem that ITdepartments in law firms face is thegrowing demand for storage. Inaddition to the day-to-day runningof the firm with all the related emailand documents created, there areoften hundreds and thousands ofgigabytes of client data sitting onthe firm’s servers. Sometimes, thisdata has long outlived its “shelf life”and no longer needed. So how doesthis fit into the duty of confidential-ity and the ethics of c-discovery?By hanging onto client data longerthan is needed, the firm runs therisk of exposing that data and theirclient unnecessarily. Expect thistrend to grow as long data storageincreases at law firms.A Happy Ending?By now, I hope you’ve seen thatethics in the legal profession re-lated to c-discovery is more thanjust a set of guidelines or doingwhat’s right. It’s intrinsically tied tothe very fabric of the law as it ex-ists and how it’s evolving. As wemove closer toward an ethical dis-covery model, the cost of c-discov-ery will go down as the level of co-operation goes up. Sure, it’s anidealized future, but I prefer that tothe status quo.

Douglas Kaminski is a Director ofSales for Oce’ Clearwell Systems.In this capacity, he works on aregular basis with thousands oflegal professionals around thecountry in both law firms and ma-jor corporations. He is a memberof the Detroit Bar Association, isVice President and on the AdvisoryBoard of the Society of CorporateSecretaries & Governance Profes-sionals.As a speaker and author, he ishighly requested nationwide andcompresses a large amount ofuseful information into each semi-nar. Mr. Kaminski has spokenbefore the:• American Bar Association andthe NEPA on a national level• State Bars of Illinois, Indiana,Ohio, Michigan, and New York• ECALSM, Paralegal, and LegalAssistant associations in 21 statesHis articles have been publishedin Corporate Counsel Magazine,Metropolitan Corporate Counsel,the National Paralegal Reporter,and many other legalindustryjournals.Areas of focus include electronicdiscovery, litigation and discoverymanagement, matter managementand electronic billing, corporatecompliance and governance, andother areas of applied technologyfor the corporate legal departmentand the law firms that serve them.

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