Cutting through the paper chase.

A famous litigator with a remarkable record of trial victories was approached at a cocktail party by a person who recognized the lawyer from newspaper accounts of his many successes. Smiling, the person said, "You must be very lucky, to have won all of those cases in court." The trial lawyer looked at his admirer and said quietly, "Sir, the only time I have been lucky is at 2 a.m. in the law library."

This story dates from an era when the lawyer could have completed a review of all relevant appellate cases in his state by 2 a.m. More important, it correctly implies that the winning edge in litigation is a combination of attention to detail, information management, and the ability to know and access the law.

These factors are especially critical in the products liability setting, where litigation often involves a major national manufacturer and may take plaintiffs' lawyers outside their home turf. In the latter situation trial lawyers must be capable not only of managing the factual data obtained in discovery but also of researching the law regardless of where the trial takes place.

This task can best be accomplished by applying cutting-edge research and data management techniques to the case. For some, that may mean being dragged kicking and screaming into the computer age.

Cutting-edge research means expanding computer use far beyond word processing. It also means understanding that the term "research," as applied to the products liability case, embodies more than merely looking up the law. While legal research is certainly one part of a successful case, research into the product itself, its manufacturer, its history, and industry regulation is equally important. This article offers an overview of cutting-edge research techniques in three phases of a products liability case: investigation, discovery, and trial.

Investigation

The first thing any lawyer does when contacted about a case is a preliminary investigation. In the products arena this means more than merely inquiring into the facts of the accident, talking with witnesses, and visiting and photographing the scene.

The product itself must be investigated. Who is the manufacturer? Is the manufacturer a corporation? Where is the product made? Where is the product sold? Is it subject to government regulation? Have other cases been filed against this manufacturer? Are there any other cases pending that involve this particular product? What type of expert should look at the case? Who are the acknowledged experts in the field?

Obtaining this information used to be time consuming and required researching a number of primary sources, such as manufacturing directories and consumer magazines. Computer databases have made these manual searches unnecessary and inefficient.

By now, most lawyers are familiar with LEXIS/NEXIS and WESTLAW. These online services generally are useful for researching case law and some statutes. However, both contain many additional libraries, including legal and business news and information sources, and some public records. The information in these libraries can be searched by subject, author, or area of law. LEXIS/NEXIS even offers a database called Products Liability that includes related state and federal cases, law review articles, and journal articles.

Cutting-edge research also makes it easier to locate experts. For example, Forensic Services, a LEXIS/NEXIS legal reference library, lists about 5,000. The database includes each expert's curriculum vitae and the cases on which the expert has worked, along with other vital information.

In addition to LEXIS/NEXIS and WESTLAW, many other online services relate to specific products. For example, DIOGENES provides an up-to-date list of all medical devices approved by the Food and Drug Administration (FDA) and identifies problems associated with them, including defect claims and FDA involvement. DIOGENES also provides information regarding FDA-approved medications, their side effects, and information on manufacturers' tests that led up to FDA approval.

The Federal Aviation Administration (FAA) has an online information service that gives subscribers access to another service, FEDWORLD. This extensive service carries aircraft manufacturers' service bulletins, FAA airworthiness directives, and other related information helpful to attorneys.

This summer the FAA was negotiating another agreement with the Commerce Department, which operates FEDWORLD. The agency wants to add aviation safety information to the service that will allow the user to research other accidents involving specific aircraft types and models.

Attorneys handling auto defects cases need only call their local mechanic, who probably subscribes to an information service, ALLDATA, that may aid in the investigatory phase. The service covers virtually all makes and models of cars sold in the United States.

In addition to service bulletins and product information, the database alerts mechanics to known or suspected problem areas for each model. Because the service contains information directly from the manufacturer, it is a quick and easy way to learn about a manufacturer's concerns regarding its product--before discovery begins.

The ALLDATA and FEDWORLD services offer an important lesson in research--an enormous amount of information that should not be ignored is available through computer services outside the legal field.

Another way to use computer research in a products case is to examine how the product was advertised. For example, in advertising minivans, promotional materials sometimes show an entire Little League team climbing out of the van. This goes a long way toward defeating a defense that injuries occurred because there were too many people in the car--that the plaintiffs were injured because they misused the product.

Also, much current product advertising emphasizes the safety of a product to the point of appearing to guarantee its safety. Internet and buyer information services, such as those found in online magazines, provide access to this kind of advertising.

Discovery

Cutting-edge research plays an important role in two areas of discovery. The first involves discovery of a defendant's own high-tech research. The second involves the use of research to manage the mountains of information obtained in discovery.

A primary component of discovery in any products case is obtaining documents relating to the design and manufacture of the product. Plaintiffs' lawyers routinely request information about product testing. However, information a manufacturer may have on a computer is often overlooked.

Recent experiences in the auto products field have shown that auto manufacturers maintain a number of computer databases. The information is far-reaching and often not duplicated in hard copy. Also, computers are commonly used for product modeling and simulations, which can give jurors a three-dimensional view of a product or part.

Therefore, practitioners should require a manufacturer to identify computer-generated and stored information. The attorney should require the defendant to describe the format of the information and to provide a floppy disk containing it for review.(1)

Every products lawyer who has obtained document discovery against a product manufacturer has most likely been buried under reams of paper. The ability to organize this information by issue, author, and date is essential.

Software, such as Summation or ZyIndex, allows litigators to scan documents into a full-text data management program. These types of software, which are proliferating, can be easily customized for individual cases. The material can be organized by issue, date, author, or product component. It then can be indexed and cross-referenced, making research fast and easy. Along with document control, these programs also include transcript management tools that facilitate summarizing and searching depositions.

Trial

Nowhere is cutting-edge research more essential than during final trial preparation and the trial itself. By this time, attorneys must have ready access to facts obtained from documents and the relevant law. The LEXIS/NEXIS databases contain not only state, federal, and Supreme Court cases but also all state and federal statutes, the Code of Federal Regulations, state and federal Occupational Safety and Health Administration standards, and all entries in the Federal Register.(2) Jury instructions are also available.

A modern is essential. This computer communication tool gives trial lawyers who travel a direct link to the office and to legal online services. By modem, litigators can transfer documents and information from these services to the office. Add a portable printer and counsel can produce timely, well-researched, and well-written opposition to defense motions. These advantages not only increase chances of success but also create a clear written record if the case is appealed.

Electronically generated demonstrative evidence is also helpful at the trial. Its most commonly used form is the simulation/animation. This form can be used to educate, illustrate, or re-create. To educate, animations may demonstrate a scientific principle that is key to the case. They may also help explain to jurors how a product works or is manufactured. Animations are a colorful way to present three-dimensional images.

Simulations can be used to demonstrate the movement of vehicles in an accident as well as the movements of vehicle occupants. They allow jurors to see what is happening during an accident.

Electronic equipment may also help give life to expert testimony. A variety of computer graphics programs will allow the litigator to index, load, color, and project exhibits onto a screen. These programs may also be used with a videotaped deposition, for example, to project an image of the witness testifying while displaying the written text of the witness's testimony. This can be an effective impeachment technique.

In addition to the variety of computer graphics programs that are available, devices such as ELMO or DOAR can enhance case presentation.

ELMO and DOAR are overhead projection devices that use video and computer technologies to transmit documents, photographs, or images of small objects onto television screens. The images can be enlarged and colorized. The devices also permit the user to zoom in on a part of the document or photograph. Images created on the DOAR can be saved and printed. Both devices help lawyers organize exhibits and locate them quickly during trial.

With the aid of CD-ROM technology, attorneys can organize and index all exhibits. They can then be displayed in any order at the push of a button. They can be enlarged, colorized, and high-lighted while the originals remain in order and in the court's possession.

While computerized data management and legal research can assist in preparing and presenting a case, they also raise a significant evidentiary problem.

Absent a stipulation, counsel must be prepared to convince the courts that computer information is admissible just as a paper document containing identical information would be admissible.(3)

Attorneys may have problems, however, with the admissibility of information obtained from a database such as DIOGENES. Hearsay issues emerge because this information service contains reports of problems with a product, and the person making the report is not identified. One way to overcome this may be through expert testimony.(4)

A computer on the counsel table during trial raises another potential problem. For all their efficiency, computers can be a symbol of the dehumanizing effect of technology. People become faceless numbers, emotionless entries in a database.

Trial lawyers represent people, their faces, and their emotions, all of which can be lost in the clatter of computer keys at the counsel table. Plaintiffs' attorneys may want to consider leaving the laptop in the office or hotel room when going to court. Let the corporate manufacturer's counsel use the computer in court. Let them and their client appear impersonal, creating the impression that the injured client is merely another number in the company's database.

Cutting-edge research in products liability cases is more than the ability to gain computer access to cases and statutes. It is an approach to gathering the facts and law necessary to put together a successful case.

The successful investigation, discovery, and trial of a products liability case requires knowledge of and facility with cutting-edge research. It may no longer be enough to possess the willingness to grind away in the law library until 2 a.m. like our lawyer of old.

There is simply too much information to be searched and too much material to manage. Remember, most manufacturers use cutting-edge technology to develop, market, and sell their products.

To attack these products without the use of cutting-edge research is akin to dog-fighting the latest-generation jet fighter in a biplane. Pure piloting skill--or, in this case, pure lawyering skill--simply may not be enough.

RELATED ARTICLE: Products Liability Section: Making the World Safer

The Products Liability Section--one of ATLA's largest, with more than 1,300 members--supports attorneys who represent plaintiffs in products litigation. Members receive news concerning recent developments on procedure, discovery, evidence, and pre-trial and trial techniques.

"Hundreds of defective products are put on the market every year," said Larry Coben, the 1995-96 section chair. "We want to bring our collective experience to bear in handling the cases that result."

Coben said that the "hot areas" in products liability law include automatic safety belts in the front seats of cars. "The absence of air bags is also causing injury and death, as are small aircraft restraint systems," he said.

In conjunction with ATLA's National College of Advocacy and various state trial lawyer associations, the section plans to put on a series of seminars around the country to assist lawyers in trying products liability cases, according to Coben.

The Products Liability Section is also working with ATLA to develop a comprehensive defective product identification system. Members will be asked to fill out a simple form when they acquire new cases. The forms are then sent back to ATLA to be cross-referenced and incorporated into a master file that will be available to other members.

"Ultimately, what we want to do is pass the information on to the Consumer Product Safety Commission, said Coben.

The section plans to continue making its newsletter a valuable tool for trial lawyers. "We intend to step up efforts to provide articles that deal with pre-trial related issues that often come up in discovery. Our goal is simple. We want everyone to benefit from our trial experience," Coben said.

Section officers are Coben of Scottsdale, Arizona, chair; Linda Turley of Dallas, chair-elect; Gary C. Robb of Kansas City, Missouri, vice-chair; James Pratt of Birmingham, Alabama, vice-chair; Brent Carpenter of Sugarland, Texas, secretary; and Dan Dell'Osso of San Francisco, treasurer, Raymond Paul Johnson of Los Angeles is the group's immediate past chair.

For more information on the programs and activities of the section or to become a member, contact Lynn Gewessler at [phone] or [phone], ext. 312. All subscribers to the Products Liability Law Reporter are automatically members of the section. An annual subscription is $110.

Daniel Dell'Osso is a partner in Walkup, Melodia, Kelly & Echeverria in San Francisco. The opinions expressed in this article are the author's and do not reflect an endorsement of any product by TRIAL or ATLA.

Notes

(1) The Federal Rides of Civil Procedure have been specifically construed so as to permit discovery of computerized information. Where relevant to the subject matter, courts have permitted discovery of documents on disk. See, e.g., Sanders v. Levy, 558 F.2d 636 (2d Cir. 1976), rev'd on other grounds sub nom. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978). The software necessary to access, search, or manipulate databases to include any instructions or usage manuals may also be discovered. See, e.g., National Union Elec. Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1257 (E.D. Pa. 1980); Fautek v. Montgomery Ward & Co., 96 F.R.D. 141 (N.D. Ill. 1982). Finally, electronically stored business information is generally discoverable to the same extent as paper, documents. Williams v. E.I. DuPont de Nemours & Co., 119 F.R.D. 648 (W.D. Ky. 1987); State ex rel. Woodward v. Schmidt-Tiago Constr. Co., 108 F.R.D. 731 (Colo. 1985). See also FRANCIS H. HARE JR. ET AL., FULL DISCLOSURE: COMBATING STONEWALLING AND OTHER DISCOVERY ABUSES 22 (1994). (2) LEXIS/NEXIS offers a Verdicts library, which provides access to jury verdicts nationwide. It can be searched by defendant, area of law, or injury. It can also be searched by expert to learn when and where the defense experts may have testified most recently. (3) See FED. R. EVID. 1001, 1002. (4) Federal Rule of Evidence 703 provides that experts who testify may, in forming their opinions, rely on data that is otherwise inadmissible so long as it is of the type reasonably relied on by experts in that field. If the product information contained in DIOGENES is of the type experts in the medical products field use, then that information is revealed through an expert witness.