Latest software manages details in med-mal cases

Howard S. Richman

    From your first conversation with a prospective client claiming medical malpractice, you gain critical information about the injuries, damages and facts that support liability and causation issues. By using knowledge management software to organize this information, you can decide whether to pursue the matter and, if so, the information is available during discovery and a subsequent trial.

    Litigation support software is essential to the medical malpractice practitioner. LiveNote, Summation, Concordance and Real Legal Binder are great products, but they’re not knowledge managers. They’re data managers that help search and organize the raw documents and deposition testimony.

    A knowledge management tool like CaseMap is fact-centric. Conversely, the products mentioned above are document-centric — intended to work with documents and deposition transcripts not with data from other sources, some of which are available months or years before deposition transcripts and document OCR-text files are available. Software that allows you to digest and annotate depositions, do key-word and issue searching, as well as find embedded exhibits in electronic transcripts, are essential to an attorney who handles medical malpractice cases. My knowledge manager CaseMap and data manager Real-Legal Binder communicate with each other, allowing raw data to become knowledge and part of case preparation strategy.

    Knowledge management software also is distinct from case management software that helps trial teams manage the scheduling of events leading to trial. Case management software doesn’t help organize facts and issues.

    Software products are tools: Each serves only a particular purpose and is poorly suited for other tasks.

New tool

    Knowledge management software represents a new litigation support tool. It complements other types of software such as document management programs, transcript search engines and case management tools. Knowledge management software makes it easy to organize and explore what you know and what you think about the facts, the cast of characters and the issues in any case.

    This software has four primary goals:

• To provide a central repository for critical case information, consolidating information typically stored in a number of separate locations.
• To make it easy to organize and explore case knowledge.
• To make it easy to evaluate a case in a thorough and consistent manner.
• To make it easy to communicate with others on the trial team about your case knowledge.

    Before the widespread use of computers, most case information was stored in counsel’s head or on a yellow pad. Today, in offices without knowledge management software, the information is scattered across a number of electronic documents including word processing chronologies and deposition summaries.

    Knowledge management software makes it easy to get the information into a central location. The very process of getting knowledge from your head and into the software helps crystallize your thinking. Once the knowledge is centralized, it’s possible to evaluate facts, witnesses, documents and issues in a consistent and thorough manner, and it’s far easier to review with others on the trial team. And, keeping critical case knowledge in a single computerized file makes it much harder to lose.

    Case knowledge is the product of thinking about a case. You review evidence and place it in context, draw inferences from it and evaluate its importance. Input raw evidence and output critical facts.

Sources

    There are many sources of case knowledge, including various types of evidence. Documents and deposition testimony are not case knowledge; they are raw data — two of the many sources from which facts are developed. Another source of facts (albeit, many of them will be disputed) are the alleged facts presented by opposition counsel in court papers. Deposition testimony is handled electronically by using LiveNote, Summation, Concordance and Real Legal Binder, which link with the knowledge databank.

    Your client and friendly witnesses are perhaps the most important sources of case knowledge, long before receiving the first medical record or taking the first deposition. This early knowledge guides your discovery plan and shapes the questions to witnesses during depositions.

    As soon as you begin a case, create a file using CaseMap in which you will build three interrelated spreadsheets: one of case facts, another listing the cast of characters (including critical documents), and a third of case issues. Each case file also includes two other spreadsheets: one to capture questions that need answering and a second to organize case law relevant to the issue.

    Capture details about your knowledge in each of these spreadsheets. For example, in the fact spreadsheet, include details about the medical event, the date it occurred, a hyperlink between the fact and its source if the source is in electronic format, whether a fact is disputed, the source(s) of the evidence that demonstrates the fact, and your evaluation of whether the fact is helpful, harmful or indifferent.

    You also create relationships among the information in the separate spreadsheets. For example, link each fact to the witnesses, organizations and documents or medical records mentioned in it and to the issues on which it bears.

    You can capture as much or as little detail as you want in each spreadsheet. Typically, start with only a few details. Over time, flesh them out.

Exploration

    As soon as you begin organizing the case knowledge, you can begin to explore it in new ways. For example, you can easily pare the facts in that spreadsheet down to those that come from a particular source, are undisputed, bear on a particular issue, relate to a certain witness, are particularly good or bad, or any combination.

    There are a host of concrete ways to use what’s stored in the case file. You can develop trial themes and opening statements, keep your client informed, prepare for depositions, aid in the preparation of motions for summary judgment and prepare for mediation.

    Whether you’re a sole practitioner or member of a large firm preparing a medical malpractice case, clients hire you to review and consider the evidence and glean a winning set of facts from it. Knowledge management products are there to help in the fact-gathering process. Knowledge management software products are thinking tools that, when used in conjunction with a case management program and data managers, help effectively and efficiently represent clients.

Reprinted with the permission of the New Jersey Lawyer, Inc., copyright 2003

Howard S. Richman is a partner at Grant Richman and an adjunct professor at Fordham University School of Law, where he teaches trial techniques.