4. Motion to Appoint Paralegal
The following sample Motion to Appoint Paralegal must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.
It is common for the court to appoint a paralegal for an in-custody defendant who represents himself, but a paralegal cannot replace a qualified attorney. Proceeding without counsel is almost always a bad idea.
The American Bar Association (ABA) defines a paralegal as “a person, qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible.” California Business and Professions Code §6450 gives a similar definition and goes on to explain the duties of a paralegal:
Tasks performed by a paralegal include, but are not limited to, case planning, development, and management; legal research; interviewing clients; fact gathering and retrieving information; drafting and analyzing legal documents; collecting, compiling, and utilizing technical information to make an independent decision and recommendation to the supervising attorney; and representing clients before a state or federal administrative agency if that representation is permitted by statute, court rule, or administrative rule or regulation.
There are multiple tasks that a paralegal is specifically prohibited from doing, including providing legal advice, representing a client in court, and selecting pleadings for a client. All of the work done by the paralegal is under the supervision of the attorney.
The paralegal can, and will, make suggestions to the attorney as to what motions might be proper in a given case. A defendant is also free to suggest motions to the attorney, but it is the attorney who will ultimately decide the strategy of the case, which motions to file, what jury instructions to request, and what witnesses to call.
There are, however, limits to the control the attorney has over the case. As examples, only the defendant can choose whether to testify, and only the defendant can accept or reject a plea bargain.
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TO THE ABOVE-ENTITLED COURT: Defendant requests an order appointing Victor VeVea as a paralegal at the expense of the county to assist the defendant on a confidential basis and for such other orders as may seem just and proper to the court.
This request is made on the grounds that the assistance of this paralegal is necessary to the preparation of the defense of this action.
This request is based on the attached declaration, on the memorandum of points and authorities served and filed herewith, on such supplemental declarations, affidavits, or memorandum of points and authorities as may hereafter be filed with the court, on all the papers and records on file in this action, and on such further oral and documentary evidence as may be presented at the hearing of this request.
Dated:
_______________
By Larry Lawyer,
Attorney for Danny Dean
POINTS AND AUTHORITIES
THE DUE PROCESS OF EFFECTIVE COUNSEL INCLUDES THE RIGHT TO THE ANCILLARY SERVICES FOR THE PREPARATION OF THE DEFENSE
Supreme Court decisions mandate that effective assistance of counsel “… requires, when necessary, the allowance of investigative expenses or appointment of investigative assistance for indigent defendants in order to insure effective preparation of their defense by their attorneys.” (Mason v. State of Arizona (9th Cir. 1974) 504 F. 2nd 1345, 1351).
“The due process right of effective counsel includes the right to the ancillary services necessary in the preparation of a defense. [Citations omitted.] The right is codified in Penal Code section 987.2 which provides that counsel appointed for an indigent defendant shall not only be compensated by a reasonable fee but also shall be reimbursed for his necessary expense.” (People v. Faxel (1979) 91 Cal App 3rd 327, 330)
“The Sixth Amendment right to counsel is a meaningless gesture if counsel for an indigent is denied the use of working tools essential to the establishment of what would appear to be a tenable or possible defense.” (People v. Gunnerson, 74 Cal App 3rd 370, 379).
It cannot be doubted that the right to counsel guaranteed by both the federal and state Constitutions includes, and indeed presumes, the right to effective counsel, and “the right to effective counsel also includes the right to ancillary services necessary in the preparation of a defense.” (Keenan v, Superior Court (1982) 31 Cal 3rd 424, 428) “A fundamental part of the constitutional right of an accused to be represented by counsel is that his attorney…is obviously entitled to the aid of such expert assistance as he may need…in preparing the defense.” (Re Ketchel (1968) 68 Cal 2nd 397, 399-400)
PARALEGAL SERVICES ARE REASONABLY NECESSARY
“In the modern world of legal practice, the delegation of repetitive legal tasks to paralegals has become a necessary fixture. Such delegation has become an integral part of the struggle to keep down the costs of legal representation. Moreover, the delegation of such tasks to specialized, well-educated non-lawyers may well ensure greater accuracy…” (Pincay v. Andrews (2004) 389 F. 3rd 853).
Paralegals are necessary support services for attorneys (see generally, Missouri v. Jenkins 491 U.S. 274; Trustees of Const. v. Redland Ins. Co., 460 F. 3rd 1253 (9th Cir. 2006); Otay Ranch, L.P. v. County of San Diego (2014) 230 Cal. App. 4th 60; No Toxic Air, Inc. v. Lehigh Southwest Cement Company (2016) 1 Cal. App. 5th 1136).
“[S]ecretarial and paralegal services” are “necessary support services for attorneys” (Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal. App. 3rd 914).
It appears to be without dispute that paralegals result in a net cost savings. It may even be improper for an attorney to complete tasks that would better be assigned to a paralegal. For example, in Carver v. Chevron U.S.A., Inc. (2002) 97 Cal. App. 4th 132, the trial court properly reduced payment to the attorney because the court found “that some charges could have been reduced had a paralegal performed the tasks…”
THE RIGHT TO SUCH COURT-ORDERED SERVICES IS SUPPORTED BY STATUTE
Evidence Code §730 explicitly provides for court-appointed experts:
When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which such expert evidence is or may be required. The court may fix the compensation for such services, if any, rendered by any person appointed under this section, in addition to any services as a witness, at such amount as seems reasonable to the court.
Evidence Code §731(a) and Government Code §29603 clearly state that the county must pay those court-ordered expenses.
These statutes do not enumerate the type of experts to be appointed, but the Supreme Court has held that “the right to such services is to be inferred from at least two statutes respecting an indigent defendant’s right to legal assistance.” (Corenevsky v. Superior Court (1984) 36 Cal 3rd 307, 319)
THE RIGHT TO COUNSEL INCLUDES THE RIGHT TO HAVE ANY COMMUNICATION MADE TO EXPERTS REMAIN CONFIDENTIAL
The Court of Appeal has held that the right to counsel guaranteed by the Sixth Amendment to the United States Constitution “also includes the right to have any communications made to experts remain confidential.” (Torres v. Municipal Court for Los Angeles Judicial Dist. (1975) 50 Cal App 3rd 778, 784).
DECLARATION IN SUPPORT OF MOTION TO APPOINT PARALEGAL
I, Larry Lawyer, Attorney for Defendant, declare and aver as follows:
1. Defendant is charged, inter alia, with first degree murder. He is facing a life sentence.
2. I am informed and believe that Defendant is indigent in that this assignment came to me as a Public Defender conflict, and Defendant is currently in custody.
3. The discovery in this case is voluminous. The Prosecution has produced multiple computer disks and thousands of pages of other discovery. I do not know the true extent of the electronic discovery because I have not yet fully reviewed this evidence.
4. It is not reasonable or economical for me to personally review all of the discovery in that a paralegal charges half of my billing rate – a cost that will ultimately be borne by the County.
5. I, therefore, request the appointment of Paralegal Victor VeVea to assist me.
6. I need this skilled death penalty qualified paralegal to listen to the audio files, view the video files, and otherwise sift through and sort the voluminous discovery and call to my attention important evidence.
7. For me to personally review all of this evidence, much of which I expect to be mundane or wholly irrelevant, would consume many, many hours (at a billing rate double that requested by this expert) and would divert my attention from more important tasks, such as reviewing the relevant evidence, conducting legal research, supervising experts, and otherwise preparing this case for trial.
8. Mr. VeVea’s resume is attached, which also demonstrates his qualifications.
9. Mr. VeVea’s billing rate is $100 per hour. I expect to need at least two fulltime weeks of his services.
Based on the foregoing, I request an initial authorization of eighty hours (80) hours at $100.00 per hour for a total of $8,000.00.
Dated:
_______________
By Larry Lawyer,
Attorney for Danny Dean
ORDER
Pursuant to Defendant’s Ex Parte application, IT IS HEREBY ORDERED that Victor VeVea is appointed to assist the Defense at the expense of the county and that a maximum of $8,000.00 be authorized for Mr. VeVea for work to be performed at his rate of $100 per hour.
Dated:
_______________
By Judge of the Superior Court