LEGAL TIMES                     AUGUST 14, 1995

USER FRIENDLY

BY BARRY D. BAYER & BENJAMIN H. COHEN

Casing Litigation-Support Software

        We've read a lot about litigation support technology, but
 everyone seems to have a different idea of what litigation
 support is. The phrase has been applied to calendar programs,
 programs that create lists of documents, software that creates
 and displays photograph equivalents and reconstructive motion
 pictures, document imaging systems, cost-recovery systems, and a
 host of other candidates.
        And to some lesser or greater extent, each of these
 support functions are integral to litigation.
        Rather than adopt anyone else's specific definitions, we
 thought we would provide an overview of the products available
 to assist litigation efforts. We'll mention specific products
 not as endorsements, but simply as examples of the product
 category being discussed.
        We divide "litigation-support" products into two major
 categories: systems that help keep track of the people and
 events involved in a case, and systems that aid the collection,
 organization, and understanding of the facts and law of the
 case, that help develop trial strategies, and that litigators
 can use in preparing for trial.
        In the first category, we have calendar and docketing
 programs and so-called case-management systems, which record
 everything you could possibly wish to know about what is
 happening with each case in the office. A case-management system
 is a highly structured database that stores information about
 the case.
        The classic program is Chesapeake Software's PINS,
 specially designed for plaintiffs' personal injury attorneys.

        BACK TO BASICS
       
        Such a program starts with basic information about the
 client, the court, the judge, opposing party and counsel,
 witnesses, insurance adjusters, and responsible office
 personnel. This information can be reviewed on a case-by-case
 basis or, as a byproduct, on a category-by-category basis. For
 example, if you wish to know which adjuster is involved with the
 case, simply pull up the case file. If you wish to know what
 other active cases involve that same adjuster or how the firm
 has done with that adjuster on closed cases, a few keystrokes
 should display a report of all cases in which the firm dealt
 with that adjuster. Thus, the case-management system not only
 assists with individual cases, but also helps manage the firm's
 entire litigation practice.
        Along the same lines, the case-management system should
 store notes on the results of telephone conversations and
 settlement discussions. There should also be a place to record
 costs advanced and money received associated with the case,
 although we would hope that, these days, such matters could be
 integrated with the firm's general accounting system. The
 program could, at the same time, be used to collect time-charge
 data for eventual billing. Once again, at least some level of
 integration with the firm's general time and billing system
 would be hoped for.
        Amicus Attorney performs many of these functions,
 although the current version, to be updated soon, cannot handle
 multiple users on a local area network.
        A good case-management system includes a
 calendar/docketing program that keeps track of every event that
 has occurred or is scheduled on each case in the office. The
 date that the file is opened and the statute-of-limitations date
 are likely the first two entries, but other important dates,
 including scheduled depositions and court appearances, due dates
 for pleadings and memorandums, closing dates for discovery, and
 the date of trial, are included as well.
        Entries can be made either to a case docket or to an
 overall calendar, but because of the versatility of the database
 program, calendar information can be retrieved either generally
 or for a specific case. Thus, an attorney working on a specific
 case can be interested in the information about that case, while
 someone responsible for ensuring that all of tomorrow's routine
 "court calls" are handled efficiently can look at all such
 matters on a given day and assign staff so that each location is
 covered.
        A better case-management system includes rule-based
 docket entry so that the entry of only one of a series of
 related events automatically triggers the others. Therefore, if
 the receipt of a complaint requires filing of an answer 30 days
 later, the notation that a complaint has been received
 automatically triggers a reminder as to when the answer is due.
        Since such rules vary so widely by jurisdiction and by
 firm practice, the system should make it easy for each firm to
 set up its own rule sets to accommodate one jurisdiction's
 rocket docket or a second jurisdiction's plodding schedule.
        We recently reviewed the heavily promoted Abacus Law+,
 which, despite the hype, is an excellent program running under
 MS-DOS.

        INTEGRATION NOW
       
        The best case-management system does not have a separate
 calendar database, but integrates, instead, with the firmwide
 calendar system so that the individual schedules of each lawyer,
 and even each conference room, can be considered as events are
 set. Each litigation event will automatically appear on the
 calendar of each attorney involved in the specific matter.
        We must admit that although we know of some systems that
 are close, such a "best" system may not yet exist in a mass
-marketed program. We wouldn't be surprised to see such a system
 hit the stores soon.
        Finally, a case-management system might be able to store
 or at least link to formal pleadings and memorandums. With this
 capability, a lawyer could, at his desk in the office, in court,
 or at home, have complete control of virtually all information
 about the case, making an extensive paper file little more than
 a place to archive a case.
        You don't have to buy a specialized case-management
 program to get the job done. If you've purchased one of the
 "suites" produced by Microsoft, Novell (formerly WordPerfect),
 and Lotus Development, you already own Access, Paradox, or
 Approach.
        A good programmer using any of these packages or one of
 the tried and true dBase clones, could develop an application
 program to do whatever the commercially available case
-management programs can do.
        We do not recommend the procedure for most firms,
 however, as the $500 or $5,000 that a commercial program might
 cost would be small change compared to the cost of programming
 and debugging a major application.
        As many of the case-management packages store information
 in one of the standard database formats, it might make sense to
 hire a programmer to write a routine to deal with the
 information in some way not provided by the purchased case
-management package.
        Cases must be managed, but they also must be prepared and
 tried, and deposition testimony must be reviewed and analyzed.
        Court reporters may furnish deposition testimony on disk
 for use with CatLinks or Discovery, while such full-text
 indexing products as Folio Views, ZyIndex, or dtSearch can be
 used to build a searchable index. Such programs not only should
 index, but also should permit the user to insert his or her own
 notes into the record. Document production must be numbered and
 listed, and these days should probably be scanned and converted
 to text using OCR (optical character recognition) technology to
 form a searchable full-text database in addition to the key
 words associated with the scanned documents.
        There are many scanners and OCR packages on the market,
 but Hewlett Packard scanners and OCR software by Calera or
 Xerox's Kurzweil are commonly used.

        PREPARING A NOTEBOOK
       
        Putting the deposition testimony and the document
 discovery together, it should be easy to find all of the
 information in the case referring or relating to Witness X or
 Issue Y. Even with the ability to keep all of this information
 online, some lawyers prefer to work with a physical notebook for
 each witness.
        Robins Analytic's Ready for Trial! gathers depositions,
 documents, pleadings, and other matters as they relate to each
 witness, and prints out a notebook, complete with divider tabs.
        Litigation support can also include outline, idea
-generator, or cluster programs_Inspiration by Inspiration
 Software Inc. is a good example_that allow the lawyer or
 litigation team to display and organize known facts and organize
 them around legal theories. Some of these programs try to
 replicate group brainstorming that could be done with pen and
 paper, or on a large bulletin board. The concept, of course, is
 to toss what we know into the system, without analysis, and then
 determine if patterns not previously relevant emerge.
        Another product type we should mention is the decision
 tree/risk analysis programs like Tree Age Software's DATA or
 Applied Decision Analysis' DPL. These programs are not yet in
 the user-friendly stage, but this type of analysis seems rather
 powerful and could certainly help build a suitable case
 strategy.
        The user sets up various points in a litigation where
 important decisions are to be made, assigns probabilities to the
 possible results from each decision point, and thereupon
 evaluates the expected value of the outcome of the litigation.
 When this expected value is compared to likely cost, it should
 be possible to make some early estimate of the most profitable
 approach to the matter.
        Outcome estimates in the personal injury field, of
 course, can be determined by analyzing electronic verdict and
 settlement databases for a best estimate of the value of the
 case.
        Finally, a good electronic spreadsheet program such as
 Lotus' 1-2-3 or Excel can be vital in valuing everything from a
 structured settlement to a spouse's pension rights.
        Of course, we've skipped right by a plethora of software
 and hardware that any litigator should consider in appropriate
 circumstances_systems that create charts and other demonstrative
 evidence, hardware that displays exhibits to the jury, programs
 that build tables of authorities in briefs and others that can
 check citations online, outline programs, research archive
 programs, software and hardware that produce instant transcripts
 online in the courtroom, and programs that keep track of
 airline, meal, and hotel charges for those out of town trials.
        And we have no doubt that someday soon the members of a
 jury will be asked to don virtual-reality helmets and experience
 a vivid recreation of what the victims of some horrific mass
 tragedy must have felt in the minutes prior to death. (If a
 picture is worth a thousand words, actually being there must be
 worth more than a few pictures.)
        But while a VR accident recreation may be some order of
 magnitude more effective than a photograph, it is important to
 recognize that almost none of the product types mentioned in
 this article do things that litigators did not do before
 computers. These products may work faster, more efficiently,
 with less lawyer and paralegal effort, and sometimes more
 effectively, but the litigator's traditional tasks of finding
 out what happened and telling judge and jury why justice demands
 a verdict in favor of his or her client still remain.
       
        Barry D. Bayer practices law and writes about computers
 from his office in Homewood, Ill. Benjamin H. Cohen is based in
 Chicago. Distributed by the American Lawyer News Service, "User
 Friendly" appears each week in Legal Times.
        "User Friendly" is available electronically on NewsNet,
 Predicasts Newsletter file, Westlaw in the LawPrac file, and
 Lexis Counsel Connect. For more information, contact Law Office
 Technology Review by writing to P.O. Box 2577, Homewood, Ill.
 60430, or by sending e-mail to bbayer @bix.com, bbayer on MCI
 Mail, to !bbayer on ABA/Net, or to Barry Bayer on Lexis Counsel
 Connect.