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United States: secondary industries offer many and varied forms of support to lawyers

SUSANNA LOBEZ: Well, although there are concerns and, from some quarters, glee about an increasingly overcrowded legal profession, secondary industries to support lawyers in their work, are popping up all over.

In the States, as well as a plethora of rent-a-mouth experts, companies offer hundreds of high-tech legal gismos and legal aids - all kinds of goodies to impress your picture on the jury's mind. Well, some time back at a law conference in the States, I found myself in a legal wonderland - a huge exhibition hall filled with trial aids and experts-for-hire.

I'm speaking to Lisa Muller of Justice Software - she's at the TortPro Booth. Lisa, what does TortPro offer to lawyers and their clients?

LISA MULLER: TortPro is a case-management software package for personal injury attorneys. It does everything from A to Z as far as bringing the cases in and getting them closed faster and getting everything done that needs to get done and it keeps all the cases in order and manages them.

SUSANNA LOBEZ: Tell me how a lawyer would first use the system and how it would help them while they're actually running the case.

LISA MULLER: Well, instead of doing it the old-fashioned way with all the files and papers and everything else, it's all on the computer, it's all there, and it's a Windows-based program, so that you don't have to go through the files any more. If they need something regarding the case, they look through, they pull it up on the mouse and everything regarding that case is in the computer at their fingertips, right there.

SUSANNA LOBEZ: So it's a completely paper-free case?

LISA MULLER: Yes, exactly; that's why it was designed. It's designed for the attorney to get the information he needs on his case at any given time, at his fingertips.

SUSANNA LOBEZ: And what about if the attorney is dealing with a non high-tech opponent or a judge? Doesn't then everything have to be reduced back into writing?

LISA MULLER: Well, yes. Of course some things still have to be on hard copy in their files, but this will reduce the day-to-day routine, the steps that they need to get through to close the case; this will reduce that paperwork.

SUSANNA LOBEZ: Lisa, thanks very much indeed.

LISA MULLER:; You're welcome.

SUSANNA LOBEZ: As I'm wandering through this huge exhibition hall, there are about two or three hundred exhibits. I'm coming up to one which has a very startling little display, with one of those electro gismos that send out miniature lightning.

Barry, tell me what this instrument is in the front that's caught my attention?

BARRY: Well that's a plasma ball, and attracts attention very efficiently.

SUSANNA LOBEZ: And you've also got some cartoons up there behind you, saying - a judge, rather a stern-looking judge saying to a harassed lawyer: 'If you can't prove what the weather was, this case is dismissed', and then, after using Compuweather, 'Due to the overwhelming evidence supplied by Compuweather, I rule in your favour.' - and a very happy looking attorney and client with your card in his pocket. Tell me, what does Compuweather do, how does it help a trial lawyer?

BARRY: A Compuweather reconstructs past weather events and what that means is we take weather records, whether they be government records or other authoritative sources, and we first create a general background of what type of weather prevails at each of the stations, and then we interpolate or figure out what the weather is at the actual site of loss. We take into account differences in terrain or bodies of water which may create a rain versus snow scenario, or have a bearing on the difference in snow accumulation, and then we basically tell the attorney or insurance professional what type of weather ground conditions were prevailing.

SUSANNA LOBEZ: So is it a situation where each side has their own weather expert with differing opinions?

BARRY:Well, very often I will not run up against an opposing expert; on rare occasions I do. But, generally, when weather is an issue, for instance a slip and fall on an allegedly slippery environment, a vehicular accident, an admiralty case - cargo lost at sea, lives lost at sea, an aviation case such as an airline crash - we will be used at first to assess whether or not weather was a factor in the case, and if it's determined that it's a positive factor, we will go ahead and do some more investigation, perhaps prepare a report and eventually testify.

SUSANNA LOBEZ: What would be your most famous or memorable case where you've been involved?

BARRY: An unfortunate event where a strong wind blew a tractor trailer onto a pickup truck, which crushed the occupant. And I found out through my own research that the wind was a sudden wind, and the truck driver, whose company had retained me, basically was not at fault for running into a strong crosswind which was not expected. And the verdict of $12 million was voted down by the jury.

SUSANNA LOBEZ: Thanks Barry.

The next booth is the cost-effective medical litigation support from a company called Medically Speaking, who are medico-legal consultants. I'm speaking here to Kerry Bradshaw. Kerry, what kind of things can you do for a lawyer running a case?

KERRY BRADSHAW: We assist them with their medical record review, discovery work, we go through the medical records, find what's important to their case, what's going to benefit their case, what the detrimental aspects are, help them with questions for deposing medical experts; basically make sense out of their medical records for them.

SUSANNA LOBEZ: So you kind of act as the doctor behind the lawyer?

KERRY BRADSHAW: Or nurses behind the lawyer.

SUSANNA LOBEZ: Is this a growing field for nurses, to advise attorneys and consult with them on medical-related trials?

KERRY BRADSHAW: It's growing by leaps and bounds; it's becoming very popular. Nurses have a different perspective than physicians and the attorneys find that very useful. Our fees are a little lower than what the physicians would charge and we have a little broader base to our reviews.

SUSANNA LOBEZ: Tell me, why the perceptions are different from doctors?

KERRY BRADSHAW: Nurses are trained to look at the whole patient, the whole person, and that carries over into their review of the medical records, so they're looking at the whole picture - what happened to this person, where a physician tends to focus their review onto the main medical issue or the main medical condition, and many times there are other things affecting the case that the attorney should be aware of, other than just what's going on with that one medical condition.

SUSANNA LOBEZ: Kerry, thanks for your time. An interesting new career you've found for yourself - no more bedpans!

KERRY BRADSHAW: No more bedpans.

SUSANNA LOBEZ: Now I'm at a booth called Trial Vision, which comes from Newport Beach, California. Lots of nice blue sky in their logo, and a video going which looks like some kind of groovy animation put together by Trial Vision.

Now, I'm speaking to Gerald Kline. Gerald, what does Trial Vision offer to the lawyer and the client?

GERALD KLINE: What we do is show lawyers how to create multimedia trial presentations. We have to keep in mind that the average American anyway, is spending seven hours a day in front of a television, and really this is the way people communicate nowadays - through TV monitors, through e-mail, through television. By bringing television communication into the court, we can help the lawyer show how to put on a case better.

We also provide lawyers with laser barcoding so that they can use a laser disc with a wand pen and, with a scrape of wand, we can pull up a document, a key portion of a video depot, a video scene, or what's playing now on our monitor - computer animation.

SUSANNA LOBEZ: Just explain to me what the animation's put together for.

GERALD KLINE: Well, I will give you some examples. For example, by putting together this animation, we're now seeing the world in outer space. We can't do that normally, but we can create it with our animation. We can also cut the earth open and come up for a closeup to see the earth crust.

SUSANNA LOBEZ: This is very useful in a volcano case, I suppose?

GERALD KLINE: Actually for pollution it's constantly used. It shows how pollution would spread. More typically, we have accident intersection collisions to show an accident occurred. We can show it from a side view, a top view, or even from looking at the view of the driver - what did the driver see and when did that driver see it?

SUSANNA LOBEZ: So I'm looking at a road - it looks like one of those video games, doesn't it, where the motorcyclist has to keep between the white lines?

GERALD KLINE: Correct. And what this would show is it allows the jury to see exactly what the driver saw and when the driver may have seen it.

SUSANNA LOBEZ: Can you show me - can we get up to where the driver encounters some hazard - on the video?

GERALD KLINE: I can't in this case, because it's ongoing. We can show you on another case that was prepared for a criminal matter, how the lawyer here tried to show that his client was not in control of the car. The criminal defence wanted to show that, in fact, the driver was not driving, he was trying to get into the next seat and the car just got away from him, and was able to use this to get out of a vehicular manslaughter case.

SUSANNA LOBEZ: Let's just explain to the listeners what's going on in the video. We're seeing two parked cars on the side of the road and then two other vehicles about to overtake them. One vehicle swerves to get away from the parked cars, knocks one of the parked cars, tries to avoid, but hits the car that's also travelling on the road, and then goes right across the other lane and hits a pedestrian.

GERALD KLINE: Now, we showed that with two different views. One was just watching the cars in action from a side view and a top view, then we cut to a view inside the vehicle so that we see a cutaway with the driver sitting in front of the wheel and then reaching over into the passenger seat. Just then he hits the accelerator and in the top corner we see the actual cars in motion. So we see, basically, a scene within a scene, and every time he hits a car, he lurches forward and hits the accelerator again, causing him to speed up and, in this way, the defence attorney was able to show the jury that the man was not in fact driving the car, and was simply a passenger in it; no more driving it than the jumper cables.

SUSANNA LOBEZ: So how come he was trying to get over into the other seat?

GERALD KLINE:Well, he had another problem in that he was drunk and under the influence of barbiturates, but this helped him escape a vehicular manslaughter charge.

SUSANNA LOBEZ: Can I see what happens to the body when the truck goes across the road?

GERALD KLINE: Sure, no problem. Now, you'll see in this sideview there are two individuals standing against the wall, and the truck hits them. We, intentionally, made those people very small because we did not wish to focus on them, and from a top view you can barely see those individuals, though you see the car travelling very erratically and moving on at a right angle as if it were drifting, and nobody was driving, and this was the exact image that the defence lawyer wanted to show.

SUSANNA LOBEZ: Gerald Kline, thanks for that. Thanks for showing that to me.

Now, I've come to a booth, which says on top of it: 'When Only an Expert Will Do - TASA'. Carol Sherman-Fournier, tell me what TASA does for a lawyer and his client, or her client.

CAROL SHERMAN-FOURNIER: What we do is we provide experts in all different types of fields throughout the country in the United States and also Great Britain, and also in Canada.

SUSANNA LOBEZ: So you're kind of like an actor's agent, except for all kinds of experts.


SUSANNA LOBEZ: What's the most unusual expert you've ever had to track down?

CAROL SHERMAN-FOURNIER: Well, I think there's a lot of different categories. I've just opened up this catalogue and one of the first things that came to my mind is this quantum physics and, I think, that's kind of unusual.

SUSANNA LOBEZ: Thanks very much, Carol.


SUSANNA LOBEZ: I'm just walking past a huge booth that's got a kind of a white-columned, Washington-DC, Capitol-building - 'DOAR Celebrates Trial by Jury'. And there's all kinds of high-technology information.

Can I ask you a couple of things, Sam?


SUSANNA LOBEZ: You look like you offer a fairly wide service here to lawyers and their clients. You've got lots of bits and pieces of technology here, and it looks like games.

SAM: Oh, these are not games. First of all we provide attorneys products they'll use to help persuade and present their evidence in front of juries, as well as in settlement conference and in other forms of meetings they have with the other side. So we have a series of technologies, using video, using enlargements, all of it around doing it in-house and doing it yourself and keeping control of the process.

We also have a new product - we just came out with, we announced it the show - called Zap Folio, which is an image-management system to completely organise your trial notebook. All the images can be scanned in, organised. You can maintain issues and also you can do communications with other experts and attorneys by sending those images to other people and then having annotations and comments made on them at the same time and then storing them.

SUSANNA LOBEZ: Is it in personal injury cases that images are most valuable to the lawyer?

SAM: It's all cases. Anything to do with persuasion, it has nothing even to do with being a lawyer, it has to do with educating people. Anything to do with the education process, whether you're an attorney, a doctor, a teacher - people are going to retain things longer if you use visuals; about 80 per cent longer, so that's really the king.

SUSANNA LOBEZ: It's a bit of a worry for radio then, isn't it?

SAM: No, radio is a different thing. The art of storytelling, of visual imagery based on the spoken word is as old as the caveman and every story that's been told in ancient times through today, whether it's Ulysses or whatever, everything is really told in terms of our myths, through oral tradition. So then why do you need visual aids? The thing is that when I tell you an oral story, what happens is you have an image in your mind based on your past experience, and your own personal life, then you create your own image in your mind about what you're hearing, which is the most powerful thing in the world. The only problem with a trial is, you want all 12 jurors not to have personal images, but a unified single image, and that's why you need visual aids because that uniquely blends all the imagery that you're getting through storytelling into a single image for the purposes of trial.

SUSANNA LOBEZ: So does this kind of technology and gismos - does that replace the lawyer?

SAM: No, it actually does not. In fact you'll find that our clients happen to be the top trial lawyers in the country. And the question is: Why do they need it if they're so successful? The reason is because they already have that art of storytelling, and they're looking now to enhance and to complement that art of storytelling as much as possible.


SAM: Nice meeting you.

SUSANNA LOBEZ: You're listening to Radio National's Law report with Susanna Lobez, and we're taking a wander around the world of trial aids.

Now, you may have also formed the impression that America has lost confidence in the lawyer droning on in arcane legalese as a way of reaching and persuading a jury. American juries, it seems, need colour and movement; as much sizzle as steak.

However, although in Australia we have far fewer jury trials, experts in advocacy here stress the importance of painting a picture for the jury and, indeed, for the judge, especially where there's a hot dispute over facts, and you do see the odd flow chart or plastic spine. But as law gets even more competitive, we may start to see more use of animations and models in court. Like these ghoulish body parts I got so excited about at the trial aids exhibition.

I'm now in a booth where we've got literally hundreds of body parts. We've got little key chains with spines on them and we've got -

TOM MARKHAM: Do you see anybody you know?

SUSANNA LOBEZ: Well actually I knew a guy that looked like this once, and now you're going to tell me it's a girl's spine, are you?

TOM MARKHAM: No, we have Victor Victoria over there, with both sets of genitalia.

SUSANNA LOBEZ: Oh, that's fascinating. Now tell me, first of all, tell me what your name is.

TOM MARKHAM: Tom Markham.

SUSANNA LOBEZ: Tom Markham, I'm from Australian radio and we don't have this kind of product assistance to attorneys in Australia, so can you tell me what this absolute cornucopia of body parts is doing here and how you use them?

TOM MARKHAM: Okay. Simply put, when a person is injured you hire an attorney to get compensation for the loss of movement or pain and suffering, or whatever it is, loss of income. When they go in, they have to educate the jury on the extent of the juries, which can sometimes be catastrophic. We sell these different spines, knees, shoulders and heads and brains to educate the jury, because the jury can't make an informed decision without knowing.

SUSANNA LOBEZ: So just show me through some of these things. Show me the brain, it seems to have slices all the way down the head.

TOM MARKHAM: This is a brand-new design. It is a MRI - sliced dynamic brain model, and it is literally the same thing that doctors see when they take an MRI of the human head. They do slices. So this model is used so that people can see exactly what an MRI is going to look like. Now, this was designed, of course, for the medical profession, but the effect of this is so great that attorneys use it, and an MRI is very difficult for people to understand, who've never had one.

SUSANNA LOBEZ: We've also got a head that's kind of a plastic model with detachable parts right down to the neck and shoulder region, and you can slice it three different ways. You can slice it through the top of the brain, you can slice it vertically, right through the nose and the back of the head, separating the eyeballs, the eyeballs roll around - oh, that's cute! - and then you can slice it the other way as well, from back to front. We've got a guy's face on the next exhibit which is marked at $725, a mere bargain for an anatomical thing to have on your desk - a paperweight - and you can lift the brain out. There's this nice lumpy little piece of pink stuff that you can lift out. That's fun! At the moment they have a discount of 20 per cent on the charts, obviously they're moving into the models on the videos, so just the plain two-dimensional charts are no longer quite so exciting.

There's a guy set up here with a camera. I'm going to go over and see what he's doing. What are you working on here?

UNIDENTIFIED:Putting on some television commercials for some law firms that we produce advertising for.

SUSANNA LOBEZ: Are there any restrictions on how they advertise, or what they say?

UNIDENTIFIED: Yes, we found out that many States do have restrictions. Some of the States are a little bit more lenient, but are definitely progressing that way. For example, this morning South Dakota just passed some laws that provide for some restrictions to be in the future, governing advertising and its promotional capabilities, rather than just doing informational series. That's what South Dakota's just moved to this morning. Many other States have already done so.

SUSANNA LOBEZ: How long does it take you to do a video for a law firm?

UNIDENTIFIED: Well, the actual production and editing of it is not a terribly long process; it oftentimes can be a week or two at most from shooting to the editing of it. But the planning is really quite the longest part, and if you do your planning job correctly, and spend enough time on that, everything else can fall into place pretty easily.

SUSANNA LOBEZ: Anything really outrageous and unusual that someone's been bold enough to do?

UNIDENTIFIED:Actually no. We are pretty tame as a company goes, because most of the clients we work for want to do something on the dignified, conservative and tactful approach of advertising. So we don't get a lot of sirens and ambulance-chasing or anything like that. We do things that are a little bit more on the subtle side.

SUSANNA LOBEZ: Can you show me something?


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SUSANNA LOBEZ: He's quite subtle, that guy isn't he? They're not great actors though are they, lawyers, as a rule?

UNIDENTIFIED: It's funny what a camera will do to almost anybody. You would think that a lawyer who can be in a courtroom and just be boisterous and having a lot of impassioned pleas and impassioned arguments and everything else, would be right at home in front of a camera, telling their own story. But it's really interesting how they will freeze up in front of the camera or in front of a microphone, and it's an interesting phenomenon.

SUSANNA LOBEZ: We can have the last laugh, then can't we?

UNIDENTIFIED: Yes, that's why I kind of stay behind the camera.

SUSANNA LOBEZ: Thanks a lot.

There's booths that specialise in auto-safety defects, advertising individual experts, engineering consultants. There's also a lot of jury consultants, who are psychologists, who tell lawyers how to manipulate the 12 members of the public that are going to decide their facts for them. We have an expert medical doctor who's talking about the hazards of silicon, he's here, Nachman Brautbauer, MD. He's a certified doctor in internal medicine and nephrology, and a Professor. Might go and have a little chat to him.

Hello, are you Nachman? You're Mark? So can I just talk to you for Australian radio?

SUSANNA LOBEZ: What does Nachman Brautbauer offer to lawyers? Does he offer help all the way through the trial?

MARK: Yes, medical support and testimony as he is a Board certified toxicologist internal medicine doctor and nephrologist. He also offers depositions and trial testimony as well as any support that they need to prepare for the trials.

SUSANNA LOBEZ: What would you say to me - of these brochures here - would be of most interest to lawyers currently. I mean, there's obviously a lot of silicon cases going on. He's got an article here about silicon and lead toxicity and industrial solvents. What would you recommend if you could pick one or two for me to take away and have a look at in terms of Dr Brautbauer's expertise?

MARK:I think, unfortunately, with the influx of the silicon implant cases, it will be between the silicon implants and the multichemical sensitivity cases that are coming up, where people are finding that they're not just allergic or having an immunisation problem to one chemical, that they know they're exposed to, but a combination of different chemicals and things that they've been exposed to.

SUSANNA LOBEZ: Can I take one of those then?

MARK: Sure

SUSANNA LOBEZ: Thanks, Mark.


SUSANNA LOBEZ: Yes, for ABC Australia, not ABC. Now, where are you from? You're from....

CLAUDETTE:California - Westminster, California; and we're legal nurse consultants. We assist attorneys from the medical aspects of their cases. We review and summarise and analyse the medical records and we locate their testifying experts. We do the literature searches for them. Actually, we identify causation and damage issues, and assist with interrogatories and depositions. We specialise in the nursing home litigation, products liability to include breast implants, altriptophan vaccines. We also do personal injury, medical malpractice cases - anything where the expertise of the medical field might be involved.

SUSANNA LOBEZ: I imagine it must be fairly difficult to give evidence against doctors and hospitals, and then seek to continue working as a nurse. You must have to, sort of, make the choice once and for all that you're going to be a nurse consultant and not a practicing nurse.

CLAUDETTE:Actually, we tend to be objective, because in any field there are people who are not practicing medicine the right way, and we like to be objective, no matter which side we work for, to give them a true picture of what's going on. We find that a lot of times we can screen the cases for merit so that the attorneys will not take a case under litigation if there is no merit to the case. So, in some ways, we feel like we're really helping the system to keep all these cases from being filed that really have no merit to them.

SUSANNA LOBEZ: Claudette, what do you see in the nursing home cases? I mean, I've heard that you see bedsores, terrible bedsores. What else have you seen that you've had to assist a lawyer about?

CLAUDETTE: Bedsores is one of the primary ones. We also see the use of chemical restraints, where they medicate people to keep them quiet. A lot of malnutrition, because they don't take the time to feed people properly; just a lot of abuse within the nursing home system. People who are in restraints, physical restraints that strangle, because they're improperly applied. Sexual abuse - you don't even think about that, that happens in the nursing home area.

Slip and falls - there is a whole area here that is just the tip of the iceberg, that we're starting to uncover, and people are now recovering big damages on these cases because, with the future of the people in this country, we have a lot of older people and we're going to see more and more of these cases. Especially in the nursing home chains, because they have a very high profit margin, and they don't put their money back in to caring for the people or paying a decent wage in order to hire people who have the skills necessary to take care of these people properly.

SUSANNA LOBEZ: What about the nurses that actually work in these nursing homes, and are watching or participating in the neglect?

CLAUDETTE:Oftentimes they're overworked; they have too high a patient load. Because they're not being paid enough, oftentimes the nurses' aides will work double shifts. They will have eight to 10 heavy-care patients, work an eight-hour shift, change their clothes and go on to the next nursing home.

SUSANNA LOBEZ: Claudette, as a nurse who's actually investigated some of these nursing home cases, what view have you formed about the families and the responsibilities of the families of the elderly people who are left in these homes to rot?

CLAUDETTE: Sure. Oftentimes the families will go in and see this, but what is their choice? They believe that they chose the best nursing home; they have a choice of going down the street and finding the same situation down there. So they're really at a loss. I really believe we need to start getting more support groups together for families of these nursing home residents so that they can start voicing their concern about what's actually going on in there.

SUSANNA LOBEZ: It's been a delight talking to you Claudette.

CLAUDETTE: You too, thanks.

SUSANNA LOBEZ: Now, across the road from all these other exhibits, including the massage for stressed lawyers, is MAREX - for marine expertise. Mitch Stoller, what do you do and why do you do it?

MITCH STOLLER: I do maritime consulting for attorneys as far as operational safety and boating accidents. I was a former supertanker captain for Exxon and after that I was a ship pilot.

SUSANNA LOBEZ: So what kind of cases have you been asked to work on and what kind of evidence did you have to give?

MITCH STOLLER: I've done cases from jetski's operational safety to supertankers. I've done personal injuries as far as a back injury to a death case - someone burning in a tank. So a whole range of operational safety issues.

SUSANNA LOBEZ: What do you do in court? Do you basically point the finger at the sailor or the pilot or the captain?

MITCH STOLLER: I am able to look at all aspects of the individual incident to tell the jury which things should have been done and which things were not done, since I've been a captain and a pilot, and I understand safety very well, and write safety manuals for shipping companies also.

SUSANNA LOBEZ: How many experts like you would there be in the United States? Are you a dime-a-dozen, or is it a fairly rarified field?

MITCH STOLLER: Oh, I don't think there's that many that have the same experience I do. My licence is good to run any ship, any size, anywhere in the world, plus being an unlimited pilot, also writing manuals for major shipping companies. I think, as far as my expertise and my level, I think there's very few.

SUSANNA LOBEZ: So, if anyone needs a marine expert for an octopus' garden case, Mitch Stoller is the anchor-for-hire. And that mammoth exhibition was at the American Trial Lawyers' Conference.