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By Larry Cohan
The Legal Intelligencer
July 16, 2008
A few years ago, many lawyers lacked the fundamental tools to effectively use technology to present evidence in a complex medical malpractice case. Records were blown up, mounted on boards and manually held up for the jury’s review. As courtroom presentation technology has evolved, more and more lawyers, paralegals and IT staff have become familiar with the tools to make effective courtroom presentations. In fact, a cottage industry has sprung up, offering the full gamut of services necessary for counsel to prepare a brilliant technologic presentation at trial, and “how to” articles are now commonplace, such as Gregory P. Joseph’s article titled “A Simplified Approach to Computer-Generated Evidence and Animations” and Diana G. Radcliff’s article titled “Using Trial Consultants: What Practitioners Need to Know” (4 J. Legal Advocacy & Practice 32 (2002)).
The question for trial counsel on both sides of the medical malpractice case is no longer whether or not we can use technology in the courtroom but whether we should. The question of the admissibility of evidence presented through technology — scanned documents, video, computer graphics and animation — is left to the sound discretion of the trial court.
While it is virtually certain that technology will be used in the courtroom in substantial matters involving commercial disputes, construction site accidents, defective products and pharmaceutical cases, the same cannot be said for medical malpractice cases.
Medical malpractice trials have not yet gone fully high-tech. Most defense lawyers, presumably with the support of their carriers, do not use technology in the defense of a medical malpractice claim. A growing number, yet still relatively small percentage, of plaintiffs lawyers use nothing more than the simplest technology to present their client’s case. A variety of factors have led to this most interesting nondevelopment in medical malpractice trials.
First, medical malpractice trials are typically highly charged, acrimonious battles between injured individual plaintiffs and dedicated and skilled doctors. Simply put, technology can, at times, get in the way of the jury’s view of the critical issues before them. Computer-generated graphics can be overused to the extent where the witness, whose testimony is the paramount issue in jury decision-making, is overshadowed by videos and graphics.
Second, if one side uses technology and the other does not, the jury might consider the disparity as a significant issue. For example, if a plaintiff’s attorney arrived in the courtroom with high tech equipment, scanned documents, synchronized depositions and IT support staff, while the doctor’s attorney did nothing more than hold the paper record up in his or her hand in front of the jury, the jury might reach conclusions based upon considerations other than the evidence. Outside of a metropolitan courtroom it wouldn’t take much to reach the conclusion that the jury might be biased against the well-financed, high-tech plaintiff’s lawyer. On the other hand, the jury might believe the side using technology was better prepared. However, used effectively, some technology could add impact and credibility to either side’s cause in most jurisdictions.
Third, special consideration must be given to the fine art of utilizing technology in cases that boil down to issues of credibility. In the heat of cross-examination of a plaintiff or doctor, a prior inconsistent deposition statement presented by video clip, with synchronized transcript, could be a powerful weapon. However, overuse will dull the knife’s edge quickly. Technologic failures will have the jury laughing at the presenter. To attack credibility, technology needs to be used sparingly, in a timely manner, with precision and with keen anticipation of when it will be needed. Of course, the developing legal standards for admissibility must also be considered.
A few general rules apply to all jury trials, including medical malpractice cases. When trying to make the decision about whether to use technology, what type to use and how to use it, the following overarching issues must be considered:
Let’s address some of the practical issues in a medical malpractice case. The size of your case will often dictate whether or not you can afford to use technology and whether or not the jury will receive it well. The complexity of the medical issues might suggest that technology is not a good idea. The fact that your adversary is known to be a likable, down to earth, “paper person” might lead you to conclude that too much technology will be a bad idea. Be honest with yourself — consider how good you will be with technology while cross-examining high-powered medical experts and physicians, sorting through records and arguing the complex medical-legal issues before the court.
If you do choose technology, have every medical record scanned into your trial software. Label and identify each document you will be using so you can access them easily with a stroke of a key. Have every deposition abstracted, synced with video and ready for use during cross-examination when the adverse party’s witness makes an inconsistent statement. Have critical texts and journal articles scanned, blown up, highlighted and ready to show the jury as soon as your expert makes reference to them, or as soon as the other side’s expert says something contradictory about them. Typed versions of illegible records are also helpful. Color graphic presentations of vital signs and medications will have effect and be remembered. Timelines with color and “movement” will have impact and add to the jury’s memory of your version of events.
Medical malpractice trials are unique. Using technology is not a foregone conclusion as it has become in other litigation settings. Careful use of technology can shift the jury’s focus, help them remember complex medical information, and affirm the credibility of you and your client. However, used in the wrong case, the wrong jurisdiction, or against the wrong adversary, and without proper preparation, technology can be your ticket to losing your medial malpractice case. We know you can, but don’t forget to spend quality time considering whether you should.