ETMD EP Paralegals cheat sheet

Unauthorized practice of law (UPL) occurs when a non-lawyer gives legal advice, selects or drafts legal documents for another, or appears in court on another's behalf; paralegals may do substantive work only under attorney supervision and direction.

Paralegals cannot accept a case, set a fee, give legal advice, or represent a client in court; they may sign correspondence only as a paralegal and must disclose non-lawyer status when a recipient could be misled.

Confidentiality under ABA Model Rule 1.6 extends to all information relating to representation; the duty survives termination of the relationship and applies to paralegals as agents of the lawyer.

Conflicts of interest are imputed to the entire firm under Model Rule 1.10; a paralegal's personal conflict (e.g., a family member on the opposing side) must be screened and disclosed to the supervising attorney.

Fee sharing with non-lawyers is prohibited by Model Rule 5.4; a paralegal is paid a salary or wage, not a percentage of the legal fee, and cannot be a partner or have an ownership interest in a law practice.

Competence under Model Rule 1.1 includes technological competence; a paralegal who lacks the skill for an assigned task must report that to the supervising attorney rather than guess.

A lawyer must make reasonable efforts to ensure a non-lawyer's conduct is compatible with the lawyer's professional obligations (Model Rule 5.3); the supervising attorney remains responsible for the paralegal's work product.

The paralegal's duty of candor mirrors Model Rule 3.3: never present false statements of fact or law to a tribunal, and correct a prior false statement to the court.

Advertising and solicitation rules (Model Rules 7.1-7.3) apply to paralegal-drafted marketing; no false or misleading claims, and no in-person solicitation of prospective clients for gain.

Subject-matter jurisdiction is a court's power over the type of case (e.g., bankruptcy, patents, federal question); personal jurisdiction is power over the parties, satisfied by domicile, consent, or minimum contacts.

Federal district courts have original jurisdiction over federal questions (28 U.S.C. § 1331) and diversity cases exceeding $75,000 between citizens of different states (§ 1332); complete diversity is required.

State court systems typically have limited jurisdiction (small claims, traffic), general jurisdiction (trial courts of record), intermediate appellate courts, and a court of last resort.

The U.S. Supreme Court has original jurisdiction in cases affecting ambassadors and where a state is a party (Art. III, § 2); most of its docket is discretionary certiorari review.

Venue (28 U.S.C. § 1391) is the proper geographic district, distinct from jurisdiction; a case can have jurisdiction but be filed in an improper venue, which may be waived.

A court may transfer venue under § 1404(a) for convenience and the interest of justice; forum non conveniens dismisses when another forum is substantially more appropriate.

Removal (28 U.S.C. § 1441) lets a defendant move a state case to federal court if the federal court would have had original jurisdiction; diversity removal requires all defendants to join and no in-state defendant.

Appellate courts review questions of law de novo and factual findings for clear error; a trial court's discretionary rulings are reviewed for abuse of discretion.

Legal terms of art: 'res judicata' bars re-litigation of a claim, 'collateral estoppel' bars re-litigation of an issue, 'stare decisis' means following precedent.

Bluebook citation order for a case: party names italicized, volume, reporter abbreviation, page, court (if not highest), year; e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954).

Statute citation form: title, code abbreviation, section symbol, section number, year; e.g., 42 U.S.C. § 1983 (2018). Short form after first full cite: § 1983.

Primary authority is binding (mandatory) if from a higher court in the same jurisdiction; persuasive authority includes sister-state decisions, law review articles, and restatements.

Secondary sources (treatises, ALR annotations, legal encyclopedias) are research starting points, not binding authority; cite them only to locate primary law.

Boolean connectors in Lexis and Westlaw: AND narrows, OR broadens, /s (same sentence), /p (same paragraph), /n (within n words), and ! or * for truncation and wildcards.

The IRAC structure: Issue (the legal question), Rule (authority), Application (facts to rule), Conclusion; CREAC adds a Conclusion before the rule and is common in persuasive briefs.

A case brief typically includes facts, procedural history, issue, holding, reasoning, and disposition; the holding is the court's answer to the issue, not dicta.

Pinpoint citations direct the reader to a specific page or footnote; use 'id.' for the immediately preceding authority and 'supra' for a previously cited source not immediately preceding.

Cite-checking includes verifying that the quoted language appears at the cited page, that the case has not been overruled, and that subsequent history (aff'd, rev'd, cert. denied) is included.

Federal pleading standard: a short and plain statement of the claim showing entitlement to relief (Fed. R. Civ. P. 8(a)); Twombly/Iqbal require facts plausibly suggesting liability, not conclusory allegations.

Answer deadline under Rule 12(a): 21 days after service of the summons and complaint if process was waived or service made, 60 days if the defendant waived service under Rule 4(d).

Rule 12(b) defenses: lack of jurisdiction over person, improper venue, insufficient process, insufficient service, failure to state a claim, failure to join a party; 12(b)(6) and (7) may be raised later, others are waived if omitted.

Discovery tools: interrogatories (Rule 33, 25 including subparts), requests for production (Rule 34), requests for admission (Rule 36), depositions (Rule 30, 7 hours per day absent stipulation), and Rule 35 physical/mental exams.

Rule 26(a)(1) initial disclosures: names of witnesses, documents, damages computation, and insurance agreements; must be made without a discovery request.

Rule 26(b)(1) scope: any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case; privilege is preserved by Rule 26(b)(5) withholding logs.

Summary judgment under Rule 56: granted when no genuine dispute of material fact and the movant is entitled to judgment as a matter of law; the nonmovant gets all reasonable inferences.

Rule 16 scheduling order and Rule 26(f) discovery conference set the pretrial timeline; Rule 37 sanctions include exclusion of evidence, adverse inference, and dismissal or default.

The pretrial order under Rule 16(e) controls the trial unless modified to prevent manifest injustice; jury demand must be made within 14 days after the last pleading under Rule 38.

The Fourth Amendment requires reasonableness: a warrant supported by probable cause, or a recognized exception (search incident to arrest, automobile, consent, exigency, plain view, inventory).

Miranda warnings (custody plus interrogation) must advise of the right to remain silent and to counsel; a suspect may invoke either right, and invocation must be unambiguous.

The exclusionary rule suppresses evidence obtained in violation of the Fourth Amendment; exceptions include inevitable discovery, independent source, and attenuation.

Criminal burden of proof: beyond a reasonable doubt for conviction; probable cause for arrest and warrant; reasonable suspicion for a Terry stop.

A grand jury indictment is required for federal felony prosecutions (Fifth Amendment); states may proceed by information with a preliminary hearing instead.

Double jeopardy (Fifth Amendment) bars retrial after acquittal or conviction; it does not bar retrial after a mistrial for manifest necessity or a hung jury.

The Sixth Amendment guarantees a speedy and public trial, an impartial jury, notice of charges, confrontation of witnesses, and effective assistance of counsel.

Felony versus misdemeanor: a felony is generally punishable by more than one year in prison; a misdemeanor by one year or less; an infraction is not criminal and carries no jail time.

The chain of custody documents each transfer of physical evidence; a break in the chain goes to weight, not automatic admissibility, and is raised by objection.

A contract requires offer, acceptance, consideration, capacity, and legality; the UCC Article 2 applies to goods, and the common law to services, real estate, and employment.

Statute of Frauds requires a writing for: marriage, year (cannot be performed within one year), land, executor's promise, suretyship, and sale of goods over $500 (UCC § 2-201).

UCC § 2-207 modifies the common-law mirror-image rule; additional or different terms in an acceptance generally become part of the contract between merchants unless objected to.

An LLC is a separate legal entity with members whose liability is limited to their investment; a corporation has shareholders, a board of directors, and officers.

A limited partnership has at least one general partner (personally liable) and one limited partner (liability limited to contribution); an LLP limits partner liability for others' malpractice.

Piercing the corporate veil requires abuse of the corporate form, such as commingling funds or fraud; it is an equitable remedy and is rarely granted.

Agency: actual authority is express or implied from the principal's manifestations; apparent authority arises from the principal's conduct that leads a third party to reasonably believe the agent is authorized.

A non-compete covenant must be reasonable in time, geography, and scope and supported by legitimate consideration; many states restrict or ban it for lower-wage workers.

Fiduciary duties of corporate directors and officers: duty of care (informed decisions) and duty of loyalty (no self-dealing); the business judgment rule presumes good faith.

Negligence elements: duty, breach, causation (actual and proximate), and damages; comparative negligence reduces recovery, contributory negligence bars it in a few jurisdictions.

Intentional torts: battery, assault, false imprisonment, trespass, conversion; the plaintiff must show intent to cause the act, not necessarily the harm.

Strict liability applies to abnormally dangerous activities and defective products; a product defect may be a design, manufacturing, or failure-to-warn defect.

Premises liability duties depend on the entrant's status: invitee (reasonable care plus warning of known dangers), licensee (warn of known dangers), trespasser (avoid willful injury).

Real property interests: fee simple absolute (greatest estate), life estate, leasehold; easements are nonpossessory rights to use another's land, created by grant, implication, necessity, or prescription.

Deeds require a writing, identification of grantor and grantee, words of grant, description of land, and signature of the grantor; recording protects against later purchasers under recording statutes.

Adverse possession requires actual, open and notorious, exclusive, hostile, and continuous possession for the statutory period.

Intestate succession distributes property when there is no will; a surviving spouse and children take under the state statute, and a will may generally be contested for lack of capacity, undue influence, or fraud.

A valid will requires testamentary intent, capacity, signature, and witnesses (typically two under the Uniform Probate Code); a codicil amends a will and must be executed with the same formalities.

Jurisdiction over divorce is based on domicile of one party; property division and support require personal jurisdiction over the other spouse (Williams v. North Carolina).

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) gives initial custody jurisdiction to the child's home state, defined as six months of residence before the proceeding.

Community property states (nine, including California and Texas) divide marital property acquired during marriage; equitable distribution states divide marital property fairly, not necessarily equally.

Child support is set by state guidelines using income shares or percentage-of-income models; the federal Child Support Enforcement framework requires income withholding.

Best interests of the child standard governs custody; factors include stability, parental fitness, the child's preference (if mature), and domestic violence history.

Spousal support types: temporary (pendente lite), rehabilitative, and permanent; some states use the term alimony, others maintenance or spousal support.

Marital property versus separate property: separate property includes premarital assets, gifts, and inheritances; commingling can convert separate property into marital property.

A prenuptial agreement must be in writing, signed, and voluntarily executed with full financial disclosure; the Uniform Premarital Agreement Act governs in adopting states.

Adoption generally requires termination of parental rights or consent, a home study, and a court order; stepparent adoption may waive the home study.

Caption elements: court name, party names, case number, document title; the number is assigned by the clerk and must match the docket exactly on every filing.

Certificate of service states the date, method, and recipients of service; e-filing under the Federal Rules requires service via the court's electronic system for registered users.

Certificate of conference or compliance with meet-and-confer requirements is required for certain motions, such as a motion to compel discovery under Rule 37.

A verification is a sworn statement signed under penalty of perjury that the facts in the document are true; not every pleading requires one.

Signature block for a paralegal: name, title as paralegal, firm, address, phone, email; a paralegal may sign correspondence but not pleadings on behalf of a party.

Proofread for internal consistency: party names, dates, exhibit numbers, and case numbers must match across the caption, body, and signature pages.

Exhibits must be labeled (e.g., Exhibit A), referenced in the body text, and listed in an index; attach only documents authenticated or identified in the filing.

Deadline computation under Fed. R. Civ. P. 6(a): exclude the day of the event, include the last day unless it is a weekend or holiday, then extend to the next business day.

Filing fees, page limits, and font and margin rules are set by local rules; check the court's local rules and standing orders before filing.

The initial client interview should capture the parties, key dates, facts, documents, and the client's goal; use open-ended questions first, then narrow with closed questions.

Attorney-client privilege protects confidential communications between the client and the lawyer or the lawyer's agents, including paralegals; it does not protect underlying facts.

Fee agreements must be in writing in most jurisdictions; contingency fees are prohibited in criminal and certain domestic relations matters (Model Rule 1.5(d)).

Conflict checks at intake: run the names of all parties and adverse parties through the firm's conflict database before substantive work begins.

A retainer is an advance payment for services; an advance fee retainer must be held in a client trust account (IOLTA) and withdrawn only as earned.

Client trust account rules (Model Rule 1.15): commingling is prohibited, records must be kept, and disputed funds stay in trust until the dispute is resolved.

Document retention: keep client files for the period required by the statute of limitations and state bar rules; return original documents to the client on request.

Telephone and email etiquette: identify yourself as a paralegal, avoid giving legal advice, confirm deadlines in writing, and document all client contact in the file.

Accessibility and language access: use a qualified interpreter rather than a family member, and confirm the client's understanding of documents by asking them to explain the key terms.