Electronic trial notebooks: effective tools in medical negligence cases.

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 trial 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 line, 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 disks 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 of 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 trial notebook uses word-processing software for this purpose.

Several good word-processing programs are on the market. For years WordPerfect(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 can 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 trial 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 marked 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 videotaped depositions, so that a search of the transcript can take you to recorded testimony.

In the 1990s the plaintiffs' 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 database 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-page 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 cases. To print the images, your 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 communication software that allows you to obtain information from outside computer services. Online legal services - such as CompuServe, Prodigy, LEXIS, 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 online 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 MEDLINE,(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 LEXIS or WESTLAW, 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 mad. 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 limitimg 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, and treatment - the Merck Manual - is now one of the medical manuals that 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 are 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 videotape. 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 answer, pleadings, your trial memorandum, and the pre-trial 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

(1) WordPerfect Corp., 155 North Technology Way, Orem, UT 84057-2399, tel. [phone], fax [phone]. (2) Microsoft Corp., One Microsoft Way, Redmond, WA 98052-6399, tel. [phone], fax [phone]. (3) Lotus Development Corp., 400 Riverpark Dr., North Reading, MA 01864, tel. [phone], fax [phone]. (4) Discovery Products, 431 Lakeview Ct., Mt. Prospect, IL 60056, tel. [phone], fax [phone]. (5) Summation Legal Technologies, Inc., 595 Market St., Ste. 2050, San Francisco, CA 94105, tel. [phone], fax [phone]. (6) Inmagic, Inc., 800 West Cummings Pk., Woburn, MA 01801-6357, tel. [phone], fax [phone]. (7) This service is available as a. library in LEXIS/NEXIS, on BRS/SEARCH, or by accessing the Paperchase on CompuServe, (8) A.D.A.M. Software, Inc., 1600 River Edge Pkwy., Ste. 700, Atlanta, GA 30328, tel. [phone], fax [phone].