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Affirmative Defenses

Posted By Charlene Sabini, BA, PP, CLP, ALP, Wednesday, June 21, 2017

Affirmative DefensesDefinition

An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant’s otherwise unlawful conduct.

The affirmative defense is a justification for the defendant having committed the accused crime. It differs from other defenses because the defendant admits that he did, in fact, break the law. He is simply arguing that he has a good reason for having done so and, therefore, should be excused from all criminal liability.1

Defendants usually offer an affirmative defense only when they have basically conceded that the prosecution can prove all of the elements of the crime. A vigorous disputing of the prosecutor’s case in chief may not go down too well when the defendant proceeds to offer an affirmative defense.2

An affirmative defense does not just present itself. While a criminal defendant may decide to offer no evidence during trial, hoping the prosecution will fail to meet its burden, this approach would not work if the defendant has an affirmative defense. The defendant must offer proof at trial supporting the affirmative defense, meeting the standard of proof set by state law (usually a preponderance of the evidence), which is a lesser standard than the prosecution’s. If the jury concludes that, for example, a preponderance of the evidence supports the defendant’s claim of self-defense, it must acquit. 3

The word “affirmative” refers to the requirement that the defendant prove the defense, as opposed to negating the prosecution’s evidence of an element of the crime. An affirmative defense operates to prevent conviction even when the prosecutor has proof beyond a reasonable doubt as to every element of the crime.4 Some jurisdictions place the burden on the defendant to prove the defense, while others require that the prosecution disprove the defense beyond a reasonable doubt. Except for constitutional considerations, local law distinguishes between case-in-chief and affirmative defenses.5

Affirmative defense situations not classified as “denial of participation” or “legal exemption” all have the common characteristic that the accused’s conduct is not criminal because, in each case, the defendant acted without mens rea (intent).

Some Common Types of Affirmative Defenses

Several affirmative defenses are nationally recognized, with the more common ones being necessity, duress, self-defense, entrapment, and insanity.

The defense of Necessity (or choice-of-lesser-evils) recognizes that the defendant is justified in violating a criminal law if (1) the defendant reasonably believes that the threat of personal harm or harm to others is imminent, (2) the only way to prevent the threatened harm is to violate the law, and (3) the harm that will be caused by violating the law is less serious than the harm the defendant seeks to avoid.6 In United States v. Holmes, 26 F. Cas. 360 (C.C.Pa. 1842), crew members threw 14 passengers overboard—in order to lighten the load—after their lifeboat began to sink. The court, however, rejected the defense of Necessity in this instance and convicted the sailors of manslaughter. Homicide, you see, is not included in Necessity.

This defense is an unlawful threat of imminent death or serious bodily injury, which induces a person to commit a crime. Again, homicide is not included. Duress is often viewed as a subspecies of Necessity because the defendant is faced with choosing between the lesser of two evils. The law suggests that the defendant do everything possible to escape or avoid doing the acts without being harmed. But in the strict sense, the defendant must necessarily commit a crime in order to avoid being killed or injured by the threatening party. Duress or coercion may also be raised in an allegation of rape or other sexual assault to negate a defense of consent on the part of the person making the allegation.

Duress can be distinguished from Undue Influence, a concept found more in the law of wills, in that the term involves a wrongdoer who happens to be a fiduciary (one who traditionally occupies a position of trust and confidence regarding the testator), the creator of a will. Duress may also exist where someone is coerced by the wrongful conduct or threat of another to enter into a contract under circumstances that deprive the individual of his or her volition.

This is the right for persons to use reasonable force or defensive force for the purpose of defending one’s own life or the lives of others, including, in certain circumstances, the use of deadly force. In order to establish Self-Defense, the defendant may be required to prove that (1) defendant was not the aggressor, (2) the defendant reasonably perceived an immediate threat of bodily harm, (3) the defendant reasonably believed that defensive force was necessary to avoid the harm, and (4) the amount of defensive force used was reasonable.7

In People v. La Voie, 395 P.2d 1001 (1964), Supreme Court of Colorado, 395 P.2d 1001 (1964), the court wrote:

When a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed, or of receiving great bodily harm, is imminent, he may act on such appearances and defend himself, even to the extent of taking human life when necessary, although it may turn out that the appearances were false, or although he may have been mistaken as to the extent of the real actual danger.

The doctrine of Retreat requires a defendant to forgo the use of deadly force and take advantage of an avenue of completely safe escape. At common law, and in a majority of states, Retreat is not required.  Moreover, a “completely safe escape” is seldom available in cases involving the deadly threat of firearms.

The Entrapment defense focuses on whether the defendant was induced to commit the crime by a government agent (typically an undercover police officer) and whether the defendant would have committed the offense without the inducement. The Subjective approach to Entrapment prohibits police officers from instigating criminal acts by people NOT predisposed to commit the crime. The Objective approach to Entrapment focuses on whether the government’s conduct in inducing the crime was beyond judicial tolerance.

In United States v. Russell, 411 U.S. 423 (1973), for example, the U.S. Supreme Court dealt with the Entrapment defense. Although an undercover federal agent had helped procure a key ingredient for an illegal methamphetamine manufacturing operation and assisted in the process, the court followed its earlier rulings on the subject and found that the defendant HAD a predisposition to make and sell illegal drugs whether he worked with the government or not.8

The reason behind allowing a defense of Entrapment is to discourage law enforcement officials from taking actions to induce someone not normally disposed to commit a crime to engage in a criminal act. Claims of Entrapment are most commonly used as a defense to what some consider to be “victimless crimes,” such as gambling and prostitution, committed against willing victims.9

This defense is based on evaluations by forensic mental health professionals with the appropriate test according to the jurisdiction. Their testimony guides the jury, but they are not allowed to testify to the accused’s criminal responsibility, as this is a matter for the jury to decide. Being incapable of distinguishing right from wrong is one basis for being found legally insane as a criminal defense. In a majority of states, the burden is placed on the defendant, who must prove insanity by a preponderance of the evidence. In a minority of states, the burden is placed on the prosecution, who must prove sanity beyond a reasonable doubt. In federal court (and in Arizona) the burden is placed on the defendant, who must prove Insanity by clear and convincing evidence (18 U.S.C.S. Sec. 17(b); see also A.R.S. Sec. 13-502(C)).

When invoking Insanity as a defense, a defendant is required to notify the prosecution. In some states, sanity is determined by the judge or jury in a separate proceeding following the determination of guilt or innocence at trial. In other states, the defense is either accepted or rejected in the verdict of the judge or jury. Even if evidence of Insanity does not win a verdict of not guilty, the sentencing court may consider it as a mitigating factor.

Legal defenses must draw a distinction between case-in-chief defenses and any affirmative defenses. Case-in-chief defenses (such as an alibi) merely deny some or all of the elements of the charged offense and call upon the prosecution to prove the essential elements beyond a reasonable doubt. Affirmative defenses, in contrast, introduce an additional element into the case and, depending upon the jurisdiction, the defendant may be given the burden to prove the defense.

So, unlike a negative defense, an “affirmative defense is one that admits the allegations in the complaint, but seeks to avoid liability, in whole or in part, by new allegations of excuse,  justification, or other negating matter.”10

Charlene Sabini, BA, CLP, PLS, ALP, is legal assistant for attorney David Vill in juvenile law in Eugene, Oregon. She is Director of Education for her local chapter, NALS of Lane County in Eugene, is editor of her chapter’s newsletter, NALS in Motion, and has earned three NALS CLE Awards. She proofreads on the NALS Editorial Board and contributes articles/essays for the NALS docket and @Law and is an Affiliate Member of the Lane County Bar Association. She also successfully petitioned the Oregon State Bar Association to allow guest speaking attorneys at non-lawyer education meetings to receive CLE credit—formerly not allowed in Oregon. She was a finalist for the NALS of Oregon Award of Excellence in 2017 and was selected as Member of the Year, 2017. She is also a 14-year volunteer with the Lane County Sheriff’s Office in Eugene, has served as the sheriff’s newsletter editor, currently serves as the county jail librarian, and earned the Jail Volunteer of the Year award in 2009 from The Oregon State Sheriff’s Association/Jail Command Council.

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Grammar Nuggets: Capitals, Colons, and More

Posted By Kathy Sieckman, PP, PLS-SC, ACP, Wednesday, June 21, 2017
Updated: Friday, June 23, 2017

Time for a few quickies. 

· Is Internet Capitalized? I have seen it both ways and, although the Associated Press and the Chicago Manual of Style said that the Internet, as “one big specific network that people visit,” should be capitalized, the Associated Press stylebook said just about a year ago that “internet” and “web” should not be capitalized. The Gregg Reference Manual says the capitalized Internet is the “global system of linked computer networks,” while the lowercased internet refers to local area networks linked to each other but not to the Internet. Since they all disagree about capitalization, I think you are safe to lowercase “internet.”


· What About the Web and Website? The Web is short for the World Wide Web. The Associated Press changed their recommendation about a year ago to lowercase “web,” as does the Chicago Manual of Style, who says that the word web standing alone may be lowercased. However, website is a more generic term that can refer to any number of different sites, so it is not capitalized. Just to keep things really confusing, The Gregg Reference Manual says that Web site is commonly two words with Web capitalized and until the World Wide Web loses its capitalization through popular usage, Web site should be capitalized. Since I am primarily a Gregg user, I guess I will use Web site. Compound words that include web (such as webcam and webinar) are not capitalized.


· How Many Spaces After a Colon? Again, back in the old days, there were always two spaces after a colon. Now that we are using more proportional type and using only one space after a period, one space is more appropriate. 


· When is Next Wednesday? Since people understand different words different ways, it is always confusing to use the term next Wednesday. Does that mean the next Wednesday after today or the Wednesday in the next week? As it is so confusing, best practice is not to use next in this context, but to be more specific about what day you are actually talking about. Instead of next Wednesday, it is more clear to say Wednesday, February 13, or Wednesday a week from tomorrow.


· Hint for PossessivesAs you may know, misuse of apostrophes to make plural words possessive is my biggest pet peeve. I will admit that sometimes I have issues figuring it out—particularly when the base word is a bit unusual. In those cases, I substitute the problem word for a more generic word. For example, if I am trying to decide if the name Andrews is plural, I might substitute Smith. So in the sentence I knew the Andrews car was in the neighborhood by the rumble of the stereo, I substitute Andrews with Smith, and I know that the Smith car would not be possessive, so my sentence is fine the way it is. If my example was I knew Mr. Andrews’ car was in the neighborhood . . . and I replaced it with I knew Mr. Smith’s car was in the neighborhood . . . I know that it should be possessive. Choosing a simple substitute word to make a possessive will help you make your word correct.


If you have a quickie question or a tip that helps you remember a grammar rule, send it to me (proofthatblog@gmail.com) and I will answer it for you and others who probably have the same questions or share your tip so that we can all learn something.


Kathy Sieckman, PP, PLS-SC, ACP, has been a member of NALS for over 30 years, is the Immediate Past President of NALS of Phoenix, and is the Vice Chair of the NALS Editorial Board. Kathy is currently the Administrator-Arizona for Sacks, Ricketts & Case in Phoenix, Arizona. Kathy earned her Associate of Applied Science degree in Legal Assisting (with distinction) from Phoenix College. In her spare time, when she is not spending time with her husband, two kids, and seven grandchildren or celebrating something with friends, Kathy writes a blog on proofreading tips at http://proofthatblog.com

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Ask Eula Mae: Building Your Résumé

Posted By NALS Editorial Board, Wednesday, June 21, 2017
Updated: Friday, June 23, 2017

Ask Eula Mae: Building Your ResumeDear Eula Mae:

I have worked in a legal office for four years, two as a word processor and two as a legal assistant.  I do not want to be stuck as a legal assistant forever because, in a big firm like this, there are many roads from which to choose such as office manager, human resources manager, paralegal, or even attorney.  My problem is that I do not know where to begin to build a résumé in a law office. Can you give some advice on this?

The Nearly New Girl


Dear Nearly New Girl:


How wonderful that you care enough about where you work that you can see a future in law!  Getting there will require good record-keeping of your skills, abilities, volunteer work, and other details that will tell others good things about you.  You will need to organize all of the information for your résumé.

There are many ways to begin building a résumé.  So where do you start?  Search the Internet for examples of legal assistant résumés.  Pay attention to your actual skills and abilities.  This will help identify which skills you may want to develop.  Also, look at your calendar for classes you have attended that show your interest in law.  Does your firm offer mandatory meetings to develop your skills? 

Do you participate in NALS, your professional organization?  This is the fastest way to learn and grow.  Be active and volunteer in your local chapter, your state chapter, and the national level.  NALS provides vast opportunities, especially in networking.  All of the members have great knowledge in how they built their careers.  It is a wonderful journey and you can go as far as you want in the association.  All of your NALS activities will make your résumé shine and will show you are a team player in the legal field.

You could also aim toward certification as a legal assistant, and higher, to professional paralegal.  College legal studies programs may be of interest to you.  This effort will be very helpful should you decide to pursue law school. 

Keep a file on hand to stay motivated.  This file is for thank-you notes and emails saying “good job” to you.  Later on, you might ask some of these supporters to serve as a reference.


These tips should help you get started in building your résumé.  Follow your heart.  It will all come together—you’ll see.

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Chapter Spotlight: NALS of Philadelphia

Posted By Allison Streepey, B.A., CRS, PLS , Wednesday, June 21, 2017
Updated: Friday, June 23, 2017

NALS of PhiladelphiaEarly American law came together in Philadelphia following the American Revolution and freedom from British rule, so it is only fitting that NALS of Philadelphia is one of NALS’ largest and most active chapters.  This NALS chapter started in 1985 as Philadelphia Legal Secretaries Association (PLSA) and in 2013 voted to change its name to NALS of Philadelphia. NALS of Philadelphia is a busy, exciting, and fun chapter with 60+ members and a lot going on that keeps it growing and going.  What is the secret to their success?


Several things keep this chapter dynamic.  One is the luck of being established in the center of Philadelphia where most of the law firms are situated within a 6-8 block radius.  This convenience supports the extra time needed by legal professionals to pursue professional development through a professional association.


NALS of Philadelphia has a core group of about 15 members who are the heart of the association and keep it running smoothly.  The chapter understands that the most precious commodity of people is TIME.  The goal of NALS of Philadelphia is to offer exceptional return on members’ investment in the chapter.


To achieve this goal, educational opportunities are offered at lunch, in the evenings, and some weekends.  There are fun chapter networking activities and members also serve the community through organized fundraising events.


NALS of Philadelphia provides great and varied educational events open to all legal professionals.  This year the chapter offered 10 Lunch’n’Learn CLE opportunities, with topics including: Local Elected Officials and How Local Government Works; The Hybrid Legal Assistant; Are you LinkedIn?; Pennsylvania Voting Issues; Firearms and Estates; He Died with Guns in His Closet; So You Want to Fly a Drone?; Entertainment Law; Human Trafficking; Heroin Hits Home; and Social Media Ethics.


Opportunities also exist for evening and Saturday CLE events which include subjects such as Active Shooter in the Workplace and Updates in Employment Law (Marijuana in the Workplace, Ban the Box, etc.).  NALS of Philadelphia recently hosted a successful all-day educational event titled A League of Our Own with a baseball theme.  A $500 NALS Foundation Grant was awarded for this event to provide 3.75 CLE credits.  A League of Our Own was designed for legal professionals in the Philadelphia area, with registration fees of $45 for members and $50 for nonmembers.  Thirty-five attendees registered for this event that offered seminars on cloud computing, social media, and professional development.  The day finished with a baseball trivia game and lots of door prizes.


The creativity of the legal education events helped PLSA (now NALS of Philadelphia) win several NALS Jett Awards, including two NALS Founder’s Awards.  These awards were for CLE activities like Can Sue Be Sued? A Discussion of Rule 5.3 of the Model Rules of Professional Conduct, and Using a PLS Study Group as a Membership Drive, which brought in about 20 new members.  The chapter also was awarded two NALS Keystone Awards, one for Court Observance Week Activities and the other for Secretarial Boot Camp.


One of the most successful educational experiences was the all-day Secretarial Boot Camp with a military theme.  This was sponsored by a $300 NALS Foundation Grant and provided 6.5 CLE credits.  This event was geared toward legal professionals who work in midsized law firms and provided an affordable registration fee of $35 for members and $40 for nonmembers.  The Boot Camp offered Business and Office Etiquette; Law Office Ethics—the Basics; Working with Multiple Attorneys and Difficult People; Do You Write Right?; Grammar, Spelling, Proofreading; and  Microsoft Word–Styles and Advanced Features.  The day finished with the Boot Camp Jeopardy Review Game and a Graduation of the Troops.


NALS of Philadelphia hosts many social and community events to enhance networking.  This year’s events will include Painting with a Twist, a Cooking Class at the JNA Institute of Culinary Arts, and Passport Dinners (where the networking fun is held at different ethnic restaurants throughout the year), and the Annual Holiday Bazaar that is held before Thanksgiving.  Recently, seven NALS of Philadelphia board members volunteered at the registration table for the Homeless Advocacy Project (HAP) Annual Benefit event.  HAP is one of the nonprofits in Philadelphia that provides attorneys who volunteer pro bono.


There is a very active Community Activities Committee which has organized fundraisers and other activities for the chapter and community.  This included Meat Package Raffle Fundraiser for the Covenant House, which raised over $600 in donations.  Members volunteered their service as Greeters and Hostesses for the Susan G. Komen Strength and Survival fundraiser with the Philadelphia Pops Orchestra.  They also volunteered for other fundraising events by cooking dinner at the Ronald McDonald House and serving at The Wine & Cheese for the Boys and Girls Club.


NALS of Philadelphia advertises a lot, using the local legal newspapers, e-blasts, the NALS of Philadelphia Website, and social media.  Special events are advertised through Evites by PunchBowl.  Even with all of this, there is still a need for more technology to advertise the chapter’s activities.  To find out what NALS of Philadelphia is doing now, see www.NALSofPhiladelphia.org.



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How-To: Preparing Leaders for the Future

Posted By Barry Pickreign, B.S., ALP, Monday, April 24, 2017

Leadership development is crucial to the future of our association. It inspires new members, new and potential leaders, and provides current leaders with the tools they need to succeed. When I took office as the 2016-2017 President-elect of the Mississippi Legal Professionals Association, I wanted to do what I could to equip our members with the tools to help us grow. I was able to do that with the help of the NALS Foundation. I hosted an all-day FREE Leadership Retreat for the Mississippi Legal Professionals Association, which could not have been possible without the NALS Foundation Grant we received. I am going to tell you what I did so maybe you can do the same.


1. Find a good location that is cost effective. Fortunately, we found a college that offered nonprofit rates which allowed us to use a room and equipment at minimal cost. I requested a quote prior to presenting the idea to the members.


2. Decide how your schedule will look. Will meals be included? I scheduled each office one hour (i.e., an hour each for the duties of the President, President-elect, etc.). I even included committee chairs.


3. If you are going to have meals, you need to sort out the logistics. Some places require you to go through their in-house food service, but some allow you to bring food in, which you can do through a caterer or by having a member potluck.


4. Now that you have a proposed location, schedule, and meal plan, organize your thoughts so you can present this to your members. Consider how costs will be covered. Will you charge a registration fee to cover costs? Will the association pay for the costs? Will you get sponsors or will you apply for a NALS Foundation Grant? These are questions to consider. Having your ducks in a row will help the members easily understand your goal.


5. If all goes well with the membership and the retreat is approved, you may begin finalizing everything. Visit the venue and arrange to reserve the space. Finalize your schedule, line up your speakers, prepare a registration form, and arrange your meals.


6. When lining up your speakers, it is important to have people who are knowledgeable in the subject matter. I used the Past Presidents of our association to share their wisdom with everyone. Also, since there are multiple ways of doing things, I arranged each presentation as a panel discussion with three Past Presidents participating in each session. I felt that was vital to the success so members could see the different ways things could be done.


7. Once you distribute your registration forms and begin to finalize everything, you will need to plan the format. Will you have questions throughout or at the end? We decided to have questions throughout. Leadership is an active conversation, so we helped facilitate this by allowing members to ask questions or include additional information. Another thing to think about is if you will record the event. We recorded ours, placed it on our website, and included the handouts. This is a great way to reach more people, especially those who could not attend.


8. Now you are on the big day. Although you are the host, be sure to breathe and enjoy it. All your hard work has paid off.


Providing training to our future leaders is vital to the success of our association. We were fortunate enough to have great attendance. Find ways to keep the conversation of leadership active within your chapters. This will help inspire potential leaders to come forward and find ways they can help. Always remember that the NALS Foundation is here to help you succeed. You can obtain grants for a variety of chapter activities. I wish you all luck in doing this. If you have any questions, please feel free to reach out to me at barry.pickreign@gmail.com. I am available any time to help any member.


In closing, I would like to remind everyone that your success is determined by you. You have the ability to change the direction of your life and the events in it. 


Barry has over nine years’ experience in the legal field. During that time he has worked in various positions such as a file clerk, legal assistant, paralegal, and his current job as a Deputy Clerk. He is the Appeals Clerk for his office and processes the appeals to the Mississippi Supreme Court. He has served in almost every office of his local chapter, the Gulf Coast Association of Legal Support Professionals, and served on various committees. In May he will be installed as the President of his state chapter, the Mississippi Legal Professionals Association. He has also served in every office and chaired various committees. Barry is the chair of the NALS Ed on Demand Task Force. He has an associate of arts degree in paralegal studies, a bachelor of science degree in justice studies with a concentration in law and legal process with a minor in psychology, and is currently working on a master of science degree in clinical and mental health counseling with a focus on forensic counseling. Barry is also a certified ALP and is working on his PLS/CLP certification. Click here to add Barry on SocialLink.


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