The
MEDLAW Legal Team Articles and Publications
| Courthouse Technology, Trial Reporter |
Winter 2008 |
To most people, the courthouse is a symbol of the rule
of law and the orderly administration of justice. Within
those walls, however, is the usual institutional maze of
people, departments, and bureaucracy. For the practitioner, a
seemingly simple task like bringing a projector into the courtroom
can be thwarted unless the proper protocols are followed.
For example, some courts require prior approval of the judge,
security, IT department, and/or the court administrator.
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| Metadata: Pitfalls and Prevention, Trial Reporter |
Fall 2007 |
The
continuous march of technology and its invasion into the everyday
practice of law can certainly cause anxiety in lawyers who have to
consider their ethical duties when adapting any technology. Rather than
adopting the view of the Luddites, however, attorneys should embrace
the advances of technology and learn enough about it to comport with
their ethical requirements. One frequent topic of consternation is the
advent of metadata and its impact in the legal arena.
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"It’s easy to fall behind the times in terms of technology. Keeping up with the Joneses can be confusing, time-consuming and expensive. Every generation of kids grows up with the latest technology, and is more comfortable using improvements. I’ve always considered myself relatively tech-savvy, but even I’m getting behind the eight-ball. My last game system was the Nintendo 64 from 1996 (has it been so long?). I’ve never even touched an iPod, while my 20-year-old brother has gone through all of Apple’s variations.
But no matter how far behind the times you are, there are plenty of opportunities to catch up and to stay competitive. You may have to ask your children, nieces and nephews to demonstrate the complexities of web design, but, as a matter of principle, you should be able to set the time on your own VCR.
Here are ten
technology tips (many are free!) to make you more efficient in your legal
work..."
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 " A few years ago, I was interviewed by the ABA Journal for its then-monthly feature,
'The Big Question.' The one they asked me was, 'What one word of advice would you give a young lawyer?' I seem to remember they also asked this of an insurance defense lawyer, and his answer was,
'Bill.'
Before I tell you my answer, let me challenge you to stop reading and take some time to think what your answer would be. This can be a difficult task, requiring introspection, honesty, and brevity.
The readers of this magazine will probably find the second requirement the easiest of the three. I suspect that for most lawyers, brevity is considerably more difficult, and introspection is the toughest of all. After all, it’s easy to forget to simply think."
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 " I just lost a case. It was an important case for my client, for my firm, and for me. I walked out of the courtroom into a sunny day that was, by South Dakota standards, quite warm, yet I couldn’t shake the chill. Not that it was the first case I’ve lost, by any means. It might not be the last, either, but hope springs eternal.
In the ensuing days, I’ve been reflecting a lot. Of course, I’ve wondered the obvious: “What could I have done differently?” That’s an important aspect of post-loss analysis, I would argue. Sometimes we discover things, both tactical and strategic, that we could have changed, and we’re usually in a better state for learning after a failure than coming off a success.
The challenge, of course, is to figure out whether anything done differently would have produced a different result, and that’s almost always impossible to know. In our work, there are so many variables—choice and order of witnesses, one expert versus another, use of demonstrative evidence, the list is endless—that, without the ability to go into some parallel universe and try each combination, we’ll never really be sure."
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 "It was Valentine’s Day, and dozens of lobbyists looked like someone had stolen their roses and put pits in their chocolate-covered cherries. They work for companies like Halliburton, Honeywell, and General Motors, which make up the Asbestos Study Group (ASG), and they were crestfallen because the U.S. Senate had just dealt a massive setback to their pet project: a bill that would have created an underfunded trust fund that could easily have been the worst of all worlds. The scheme would have deprived victims of fair compensation and required a massive public subsidy of private liability.
The bill went back to committee on a budget point of order, but not before the ASG and its allies had pulled out all the stops. The president himself had recently spoken about the bill. In one of those famous fumbles of language that often reveal his true thoughts, President Bush called for protection for “people who take risks.” What he really wanted, of course, was protection for people who take risks with the lives, health, and safety of others."
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 "There’s a new way of doing business in Washington. It used to be that an elected lawmaker would have an idea, write it into a bill, and introduce it in either the Senate or the House of Representatives. The bill would then go to committee, where it would be studied, discussed, perhaps changed, and then either approved or killed.
If the bill survived, the next step was, of course, debate about the idea on the floor of the whole body, during business hours and in full view of the public. The process was memorialized by Schoolhouse Rock in the song
'I’m Just a Bill.'
That’s the old paradigm. We live in a new age now. Both houses of
Congress, as well as the White House, are under the control of people
who care most about what the corporate CEOs want, not what the people
need. I don’t mean that to be a partisan statement. It’s a statement
about ideology and priorities. Even this crowd, though, understands that
real people still get to vote occasionally, so they’ve developed two new
ways to serve their corporate CEO masters, enact laws that hurt ordinary
people, and hide their schemes from the voters."
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 "When you think of heroes of the legal profession, who comes to mind? Clarence Darrow, the elemental man in the Tennessee courtroom fighting to preserve the doctrine of the separation of church and state? Abraham Lincoln, holding the union together? Or perhaps Thomas Jefferson, crafting the words that gave birth to our nation?
There are many heroes whose names you may have never heard. There is Edgar Brackett, who put together the case that allowed Benjamin Cardozo, then a justice on the New York Court of Appeals, to decide McPherson v. Buick Motor Co., which eliminated the antiquated doctrine of privity in products liability cases. Or Dick Foster, the South Carolina lawyer who took his case all the way to that state’s supreme court to win the right of attorneys to write on a blackboard during closing argument. Or Reginald Watt, the California attorney who in 1973 successfully challenged the constitutionality of that state’s guest passenger statute. Or Bob Peck, the president of the Center for Constitutional Litigation; he and his staff have thwarted many attempts by business interests to obliterate the hard-won right of plaintiffs to seek full and fair compensation for injuries caused by corporate wrongdoing"
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 "Knowledge is power. As the parent of a child who suffers
from the effects of cerebral palsy (CP), you are well aware of this old
adage. That’s why you spend countless hours reading, searching the Web
and poring over new sources of information about CP, its symptoms and
advances in treatment. You tirelessly seek any shred of knowledge that
may help maximize your child’s abilities and strength, improve his
health and enhance his quality of life. When it comes to your child’s
well being, you don’t rely solely on your doctor; you are proactive. You
do your own homework.
You recognize that there is more new and emerging information about
cerebral palsy available than any one treating physician may know. And
you understand that your doctor is focused on treating patients. He has
only a limited amount of time to spend with you.
So, you burn the midnight oil. You leave no stone unturned.
The intent of this article is to help parents better understand
issues surrounding one cause of cerebral palsy – oxygen deprivation
during labor (intrapartum asphyxia), which can lead to brain injury. A
lot of conflicting information is available about the prevalence of
intrapartum asphyxia, how to prevent it and how to lower the risks of it
occurring in future pregnancies unturned."
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 "As you know, earlier this year AAJ
launched a long-term, national communications campaign to change the
debate over issues important to our members. Our goals are twofold: to
tell the story about trial lawyers’ unwavering commitment to seeking the
truth, providing justice, and holding negligent corporations
accountable, and to highlight our opponents’ unscrupulous tactics and
true motives. Our campaign is well under way, and I want to share with
you some of the exciting things that are happening.
It is no secret that our opponents are
well-heeled and deeply committed to eliminating the rights of
individuals to hold wrongdoers accountable. Decades ago, they embarked
on an aggressive misinformation campaign to sell the public, the press,
legislators, and judges on the idea that trial lawyers, their clients,
and even the civil justice system itself have hindered the delivery of
quality health care and stymied economic growth."
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 "October 3, Sandy Hook, Mississippi. A
mile and a half from the Louisiana state line. It’s about 93 degrees and
100 percent humidity. The water oak we’re working on, probably over 100
years old, was brought partly down by Katrina and finished off by Rita.
If it tips over just a little more, Miss Mae’s trailer will be gone.
In September, I debated a fellow from the Manhattan Institute about
volunteer immunity. He claimed there were “waves of frivolous lawsuits”
against volunteers, keeping help away from the needy people of the Gulf
Coast. (But when pressed, he couldn’t actually produce such a lawsuit.)
Being a curious person, I decided to see the relief effort firsthand, so
my wife, Dottie, and I contacted the Methodist Church about a mission
trip."
Read Article
 "August 2005 is a month I’ll never forget. It began quietly, with Congress in its summer recess and George Bush on a long vacation, riding his bike and, for once, not talking about trial lawyers and the civil justice system.
Then came the Texas verdict in the first Vioxx case to go to trial. When the jury decided Merck should be punished and that the proper measure would be the money the company made by delaying warnings about heart attacks, it was inevitable that the corporate spin machine would go into overdrive. Sure enough, the day after the verdict, there was Merck, popping up in the top position on a list of Google search results for the word “Vioxx,”
claiming that “the case presented to the jury was fundamentally flawed."
Read Article
 "Some injured people don’t consider litigation until it
seems too late. But a decades-old Supreme Court decision may help you
save an apparently time-barred claim.
Your phone rings. The caller explains that she has seen the media coverage, had taken the drug herself, and had been hospitalized for the condition the drug is known to cause. The bad news is it happened three years before the manufacturer withdrew the drug and more than five years ago today.
In American Pipe & Construction Co. v. Utah, the U.S. Supreme Court held that,
once filed, a class action tolls the statute of limitations for all asserted class members.
Every federal appeals court, along with courts in 35 states and Puerto Rico, has addressed this issue."
Read Article
 "Well,
they fooled me. I believed that the insurance companies really were
losing money and needed to raise premiums, although I believed it was
part of the same old story, relived from the 1970s, 1980s, and 1990s.
Stock prices were down, interest rates were down, and insurers were
losing money on their investments. They wanted to make it up, as they
always had before, on the underwriting side.
I know you understand this: Insurance companies typically don’t make
money on underwriting; they almost always pay out more in claims than
they collect in premiums. This is true for all lines of insurance—car,
life, health. But because they don’t have to pay the claims right away,
they recoup the losses, and more, by investing."
Read Article
 "It was 4:30 a.m. on a day that would turn out to be hot and muggy in Sumter, South Carolina, when I started thinking about this column.”
The day before, I had watched my client (we’ll call her Alice) stare at the floor and try to control her emotions while the child neurologist explained to the jury that her baby had developed normally up to the time of birth, and then while he showed the jury the radiologic images of the baby’s brain. Lack of oxygen during labor and delivery had first caused the brain to swell, obliterating its normal structures and causing seizures. Later, as the swelling subsided, the images showed spinal fluid where brain tissue should have been—evidence of permanent damage, leaving the girl blind, mentally impaired, and with
cerebral palsy. "
Read Article
 "The last South Carolinian to be president of AAJ was James “Spot” Mozingo of Darlington, back in 1952. Someone once asked Spot why he was a plaintiff lawyer, and he replied, “Because I like people better than I like buildings.”
Actually, Spot never was really an AAJ president, because there wasn’t an AAJ in those days. The organization was then known as NACCA—the National Association of Claimants’ Compensation Attorneys. The name was a reflection of the fact that almost all the lawyers representing people were workers’ compensation practitioners. There were few tort lawyers around because there was so little tort law."
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 "So
you have a basic personal injury practice – auto and trucking cases,
slip and fall, maybe some medical malpractice cases – certainly you
don’t need to be concerned about electronic discovery, right?
Wrong.
If you’re not getting the electronic evidence from defendants in many of
your cases, you’re missing critical evidence that can make or break your
chances of success."
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"Who hasn’t lost money in the stock market? Just a few years ago it
seemed no one could. The mid-1990s saw enormous growth across the
entire market, but most notably in the technology sector. Internet
startups and IPOs were the news of the day and everyone, it seemed,
was getting in on the action. The champions of the “new economy,”
the Wall Street analysts, the media, and the public cheered as the
markets reached unprecedented levels and ignored those who warned
that prices were unsustainable.
On
January 14, 2000, the Dow Jones Industrial Average reached its all
time high at 11,723. The NASDAQ, fueled in large part by the
technology sector, reached 5,048.62 on March 10, 2000. However, in
2002 the bulls made way for the bears and “irrational exuberance”
gave way to sobering reality. At market close on October 9, 2002
the Dow Jones was at 7,286.27, 37.8% down from its peak. That same
day, the NASDAQ closed at 1,114.11, 77.9% less than its high.
Today, the Dow has returned to the 9000 level, yet the NASDAQ is
still below 2000."
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"Anyone with a TV has seen the
commercials: A former
presidential-candidate-turned-spokesman for an erectile dysfunction
drug, a gold-medalist skater touting a prescription pain medication, and
the once-ubiquitous advertisements urging us to ask our doctor about a
drug without revealing the condition it is supposed to treat.
Whether on television, radio, magazines,
or billboards, pharmaceutical advertisements are unavoidable. The
pharmaceutical industry spent an unprecedented $2.6 billion in
direct-to-consumer (DTC) advertising in 2001. This represents a
spending increase of more than $200 million over the previous year.
Promotional spending directed at consumers increased by 212 percent
between 1996 and 2000."
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"A procedure less invasive than a biopsy is a blessing to people suffering lung ailments. But when the instrument used is contaminated with potentially lethal bacteria, the boon becomes a bust. When the instrument manufacturer knows there is a problem but doesn't work swiftly to fix it, the problem becomes a legal issue.
A bronchoscope is a thin, tubelike instrument that physicians use
to examine the inside of lungs and to collect pulmonary tissue samples
through a channel port. In September
2001, a defect was discovered in several bronchoscopes manufactured by
Olympus America, Inc. Olympus officials said the company initiated an
"immediate and vigorous investigation" and sent notices to 2,361 heath
care institutions, resulting in a "prompt voluntary recall."2
However, the company did not initiate the voluntary recall until
November 30, 2001—two months after it learned about the defect."
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 "In mass tort litigation, the attorney who is aggressive and in charge has an undeniable advantage. So in the battleground known as discovery, zealous litigators can go too far, and discovery abuse can be the result.
Sometimes the line between admirably aggressive advocacy and
unacceptable abuse is not well defined; other times, it has clearly been
crossed. The goal in mass tort cases and other complex civil litigation
is to stay one step ahead of your adversary, document all abuses, and
use offenders' conduct to your advantage."
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"Attorneys trying scuba diving cases must understand admiralty law, contract law, and diving itself—the training, the techniques, and the risks.
Despite advances in training and technology, scuba diving can be
dangerous, and tragedies occur. To determine whether an injured diver
has a viable case, the plaintiff attorney must understand the dangers of
the sport and the training required to dive safely. The attorney should
also be familiar with the parties involved in scuba diving excursions."
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|
by Robert K. Jenner and Bryant Welch |
 "Some mentally ill patients are clearly in danger of harming themselves. Mental health care providers must heed the warning signs.
In hypothetical cases, involving suicide or
other self-destructive behavior, defendants focus their defense on the
patients’ self-imposed, harmful conduct. The central issue is this: If
mentally ill patients receive negligent psychiatric treatment for
life-threatening behavior–the foreseeable result of which is death–are
malpractice actions vulnerable to the affirmative defenses of
contributory negligence or assumption of the risk when patients die from
the very behaviors for which they sought treatment?"
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 "The FDA's expedited review process and a
pharmaceutical company's desire for profits unleashed a dangerous
diabetes drug on consumers.
In the mid-1990s, the FDA came under criticism for its slow review for
approving cancer and AIDS drugs. Responding to that criticism, Congress
passed legislation that permitted the agency to allow a priority review
of certain pharmaceuticals that represent a major advance in medical
treatment.
This accelerated review can cut the red tape that delays the release of
promising new drugs. But priority review can also lead to disaster, as
consumer protection checkpoints are eliminated."
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"Contact dermatitis arising from chemicals used in the manufacture of latex gloves has been well documented since the 1930s. In the past few years, however, debilitating and even life-threatening allergies have been linked to repeated latex glove exposure.
This article provides general information about the most severe form of
latex protein allergy and discusses litigation by injured health care
providers against latex glove manufacturers.
Scientific literature has shown that repeated physical contact with
latex gloves and exposure to airborne latex proteins have caused
potentially fatal allergies in many exposed people."
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