PAPER: Fulton County Daily Report

DATE: 08/22/95

SECTION:TECHNOLOGY

HEADLINE:Casing Litigation-Support Software



TECHNOLOGY



BY BARRY D. BAYER AND

BENJAMIN H. COHEN



Barry D. Bayer and Benjamin H. Cohen write from their
offices in Homewood, Ill., and Chicago, respectively. They
can be reached at Law Office Technology Review, P.O. Box
2577, Homewood, IL 60430, or via Lexis Counsel Connect.
Provided by American Lawyer News
Service.



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 is 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 data base 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 on which
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 data base
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 data base, but instead integrates with the firmwide
calendar system so that the individual schedule 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), or
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 with the cost of programming
and debugging a major application.

As many of the case management packages store information in
one of the standard data base 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 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 data base 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 whether 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 with 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 data bases 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 her client, still
remain.       *