Electronic Trial notebooks: Effective Tools in Medical
Negligence Cases
Howard S. Richman
None of us would dream of going to trial in a medical
negligence case without a trial notebook. The new twist to
consider is that the trial notebook can be electronic. This
article outlines how to create an inexpensive, cost-effective
one.
What follows is my personal guide to some simple-to-use
hardware, software, and online services. These comments should
not be taken as an endorsement of any Particular product or
service. 'The watchword to any user of technology is to test,
read, retest, and make choices based on your own needs.
Hardware
To create an electronic notebook, you need suitable hardware.
A notebook computer should be small and light enough to
transport easily to and from court, home, conferences, and
meetings with clients and witnesses. The battery life should be
such that it can operate for at least two hours without being
plugged into a power source. The computer should have a hard
drive large enough to store sophisticated software. I recommend
at least a 340 megabyte (MB) hard drive. You should have at
least 8 MB of random access memory (RAM) capacity for
RAM-intensive software.
The notebook computer can be either monochrome or color and
should run at a clock speed of at least 50 megahertz (MHz). This
hardware will serve as the core for all your trial notebooks.
Before purchasing hardware, study the trade publications in the
computer field and read comparative reviews of the latest
notebook computers.
You will also need a modem. The modem, when attached to your
computer and a telephone fine, allows you to communicate with
other information sources by accessing other computers.
You will also want a CD-ROM drive. (CD-ROM stands for compact
disk-read only memory.) This device has the ability to read
compact that have data, graphics, or sound 'burned" on them.
Although many notebook computers have a built-in CD-ROM
capability, I recommend using an external portable device
because it runs much faster. Finally, it would be advisable to
have a portable printer in case you need a paper copy. Either
bubble- or ink-jet printers will do. The electronic trial
notebook does not actually require this last item hardware
because a notebook computer can be connected to any compatible
printer when a hard copy is needed.
It is a good idea to scout out printer availability when
possible.
Software
To create an electronic notebook for any given trial, you
need a core of basic software packages. First, a word of caution
to the novice: Many commercial vendors prepare electronic
notebooks with proprietary software. The process outlined here
is a recipe for preparing your own notebook--without all the
bells and whistles that commercial vendors sell.
Word-processing. Virtually all trial lawyers outline their
intended direct and cross-examination of witnesses. That
outline is a living, breathing document that grows with the
progress of the case. Opening statement and summation can also
be outlined. Those who are tied to black-binder notebooks use
reams of paper while repeatedly editing and updating the
outlines. The electronic trail notebook uses word-processing
software for this purpose.
Several good word-processing programs are on the market. For
years Word Perfect (1), was the law office standard, but today
Microsoft Word for Windows(2) and Ami Pro (3) are also popular
choices. Select word processing software that you are
comfortable with. Your office staff need not even be on the same
package, because most word processors today read documents
created by other packages, Generally, however, you are better
off if you can standardize.
Deposition digesting. All lawyers know the value of going to
a deposition or in a medical negligence case armed with prior
testimony of an expert witness or a defendant.
Several software packages make searching testimony as easy as
reading a transcript. For example, Discovery Pro for Windows and
Discovery ZX are available from Discovery Products, Inc.4 The
Software comes in a Windows or DOS version and quickly converts
-any transcript from the ASCII version to its own proprietary
software format
A deposition bank can be set up for the current case and on
expert witnesses filed either by name or by specialty area. With
the click of a mouse, you can then view a list of all
transcripts that might be relevant to a particular topic. You
can search for words or for phrases associated with other words
or phrases. The software has a fuzzy language approach, which
allows typos to be included in the search.
Transcripts can be sticky-noted electronically with issue
coding, annotations, and paper clip markers and can be
cross-referenced. The use of any of these items does not affect
the integrity of the transcript itself because annotated or
items are kept in a separate file.
Transcripts can be copied electronically and sent over
telephone lines to anyone who needs them. Discovery Pro also
integrates nicely with audio - and video- taped depositions, so
that a search of the transcript can take you to recorded
testimony.
In the 1990s the Plaintiff’s bar has recognized the
importance of cataloging and retaining prior testimony of expert
witnesses in medical negligence cases. The most overlooked
source of this information may be the trial lawyer's closed
files.
A vast amount of information may be lost simply because the
attorney has little time to recapture and manage information
that is in some box in a storage facility. Whether it be
deposition or trial testimony, the trial lawyer should always
retain it in an electronic form that can be easily recaptured
and searched.
If old files are in paper form, they can be stored
electronically with optical scanning technology. Scanning takes
an electronic picture of each page and places an electronic
image on storage media. Depositions can be stored on floppy
disk, hard drive, CD-ROM, or optical disk.
Stored images can be converted to text so that words can be
searched. This is called optical character recognition (OCR).
Alternatively, the transcript can be left as an image, and a
separate data- base can be set up to retrieve and search entire
transcripts. The way you approach the project is a matter of
individual taste, computer sophistication, and the quantity of
material involved. If you have to manage 20,000 documents, the
latter method would be useful. For most cases, I prefer the OCR
approach so I can find one or two useful items quickly.
Creating databases. Typically, medical negligence cases are
top-heavy with documents. Managing the paper flow of medical
records used to be an administrative nightmare, but records that
take up several file drawers will fit on a CD-ROM disk.
The medical records are first Bates numbered, as they are
when using a paper trial notebook. In Bates numbering, a
hand-held stamper is used to consecutively number the pages of
documents so that each page receives a unique number from 0 to
999,999,999. Or the records can be bar-coded similar to the
supermarket pricing system.
Images of the records are then scanned into the computer and
copied onto a CD. Each image on the CD has a unique tag number
and is further coded for purposes of creating a database.
In-house staff may be able to prepare the database, or you can
hire an outside information service to do the coding and
technical work. The latter approach is used by many small firms.
Once a database is designed, you still have to select
software to use it. Summation Blaze 3.1 for DOS is one such
product.5 It allows for creating simple or complicated databases
to retrieve medical records. You can find a single entry in the
medical record without having to thumb through thousands of
pages of material.
This software package also comes with an image link, which
allows the user to search the database for full length graphics
or records meeting a designated search parameter, then call
those images up on the screen from a CD-ROM. This process was
used on a large scale in the breast implant litigation, and it
has been used successfully in medical negligence. To print the
images, you'll need a laser printer with the ability to print
high-quality graphics.
Once you have moved from the document discovery stage of your
case to the deposition stage, you can embed the image link in
the transcript of a witness's testimony so that all exhibits
marked at deposition can also be called up from the CD-ROM.
Another software package that can be used in a similar manner is
Inmagic.6
Online Services
A discussion of software needed to operate a basic electronic
trial notebook would be incomplete without mentioning
communications software that allows you to obtain information
from outside computer service such as CompuServe, Prodigy, LEXUS
and WESTLAW, and AmericaOnLine – have interface software that
allows easy communication between the service and your notebook
computer. For purposes of setting up a basic trial notebook, any
on line service with an interface to medical databases will
suffice.
The information superhighway allows access to a wealth of
medical material, Foremost of these resources is MED-LINE,7 the
National Institutes of Health’s (NIH) index of medical articles.
Lawyers can find citations and abstracts to articles on topics
from AIDS to Zoster infections.
The electronic trial notebook permits you to get online with
the NIH computer through your modem and communication software.
You search MEDLINE the same way you would conduct a LEXIS or
WESTLAW search. you can search by topic, journal, author, or
phrases. After relevant articles and abstracts are found, they
can be downloaded (copied) onto your computer You can access the
NIH computer through LEMS or WESTIAW, BRS/SEARCH, or CompuServe.
The gateway is not important, the information is.
Once you have your citations or abstracts, You will want to
see some full text articles. You can order copies from the
Information Store on CompuServe. For a range of fees, CompuServe
will fax the article to you, send it overnight, or send it
regular mail. You can view the full text of certain journals on
LEXIS and download what you want. You can also obtain the
articles from CD-ROMs created by the publishers of medical
journals containing current and archival issues.
Subscriptions and Textbooks
If space constraints were limiting your medical journal
subscriptions to a minimum,, then CD-ROM will be the answer to
your prayers. The medical publishers have scanned many years of
past issues onto CDs, which are sold with a service that
provides yearly updates. Two to three inches of library space
can house the major medical journals of the last 20 years.
The same subscription services that give you journals on disk
also supply the leading medical textbooks. As any practitioner
in this field knows, having a good medical library at your
fingertips is critical for good trial preparation. As with the
journals, you download relevant information to your computer and
file it in the appropriate subdirectory of your electronic trial
notebook.
Useful tools for preparing medical negligence cases are a
medical dictionary, a guide to anatomy, and a guide to drug
interactions.
Any commercial software retailer, such as Egghead Software or
Software Etc., can supply an inexpensive layperson's medical
dictionary on disk. The standard medical dictionaries such as
Dorland’s and Stedman's can also be purchased in floppy disk
format for loading onto a computer. A staple in our office for
years for symptom recognition, diagnosis, treatment – the Merck
Manual – is one of the medical manuals we search online.
A useful anatomy text is Gray's Anatomy, I do not believe it
is available yet on disk or online, but it's worth checking that
at your software retailer.
A pharmaceutical manual that explains interactions, warnings,
and contraindications will be a frequently consulted resource.
There are several titles available. The text should be
searchable by brand or generic name and should contain data on
dosages, side effects, and monitoring requirements.
These resources arc obtainable at local software stores or
from medical publishers. The total cost of having a
medical dictionary and a pharmaceutical manual online is less
than $500 a year.
Demonstrative Evidence
Before preparing any exhibits as demonstrative evidence, we
always search our in-house anatomy database to see if we have to
go outside for what we need. If so, a wealth of resources is
available.
For example, there is ADAM (Animated dissection of Anatomy
for Medicine).8 This multimedia software product permits you to
view human anatomy from a variety of different angles, views,
and levels of magnification. It allows you to animate a surgical
operation or procedure on computer and transfer it to video
tape. The jury can see what the physician could see during the
operation. This software can cost several thousand dollars.
If your budget does not allow this much litigation support,
there are inexpensive programs (under $100) available that allow
you to get basic anatomy into your electronic trial notebook.
You can use the software to educate yourself and-if you work out
any copyright problems - the jury.
Remember that whenever you copy anything from a book or
software program, you must obtain permission from the copyright
holder. You only hold a license to use the software; you don't
actually own it.
Ready for Trial
In your notebook computer, you can create a directory
entitled ETN (electronic trial notebook). Within that directory,
you can have a subdirectory for the case you are preparing for
trial. Under that case name, you can set up a subdirectory for
medical records and further subdirectories for each health care
provider.
Interrogatory answers, pleadings, your trial memorandum, and
the pretrial order should all reside in appropriate
subdirectories that can be called up immediately for reference.
Any medical research you plan to use for examining witnesses
should be only a few keystrokes away. Your witness list (with
addresses and day and evening phone numbers) should also be in
the electronic trial notebook.
Before trial, you will have loaded all the deposition
transcripts in a separate subdirectory properly annotated with
case coding. During cross-examination, for example, you can
conduct a key-word search of a witness’s deposition transcript
and call up conflicting testimony on any issue.
Put the paper clips and sticky notes away; electronics are
here to stay. The key to successful use of any trial notebook is
getting your work organized. The electronic trial notebook
provides the ability to manage a tremendous amount of material
with compact, portable equipment that finds what you want almost
instantly.
Notes
- WordPerfect Corp., 155 North Technology Way, Orem, Ut.
94067-2399, tel (900) 451-5151, Fax (801) 229-LS66.
- Microsoft Corp., One Microsoft Way Redmond, WA 98052-6399,
tel. (206) 882-8080, fax (206) 936-7329.
- Lotus Development Corp, 400 Riverpark Dr. North Reading,
MA 01864, td. (800) 343-5414, fax (617) 693-3899.
- Discovery Products, 431 Lakeview Ct., Mt. Prospect, IL
60056, Tel:. (900) 443-8OD7, fax (708) 827-8601.
- Summation Legal technologies, Inc. 595 Market St., Ste.
2050, San Francsco, CA 94105, tel: (800) 735-7866, fax (415)
02-0403.
- Inmagic, Inc., 800 West Cummings Pk., MA 01801-6367, Tel:.
(800) 229-8398, fax (617) 938-6393.
- This service is available as a library in LEXES/ NEXIS, on
BRS/SEARCH or by accessing the Paperchase on Compuserve.
- A.D.A.M. Software, Inc., 1600 River Edge Pkwy., Ste.
700,Atlanta, GA 30328, tel. (800) 338-6954, fax (404)
933-9767.
|