The role of the litigation paralegal isever expanding. In the past,paralegals have been underutilized,in part because attorneys have not recognized the valuable role they can play as part of the litigation team. As litigation becomes more complex, paralegals, through diligent efforts, can assume more responsibility, obtain more recognition for their contributions, and improve their standing in the workplace.
The litigation paralegal can be involved in complex cases such as products liability/toxic tort, aviation crashes and medical malpractice. Products liability cases are varied in nature and can range from combustion catastrophes, household chemical mishaps, fabric related burn injuries, electrical malfunctions,faulty medical products to industrial accidents and defective vehicles. The case may involve a defect in the design of the product, a defect in the product's marketing scheme, a failure to warn or use adequate warnings, a failure to meet the test of safety under "real conditions" of the home environment and/or any combination of these. Toxic tort cases can include injuries from contamination of property, use of a product, or exposure to harmful substances in the environment or workplace. Aviation cases often involve pilot error or mechanical failure. Medical malpractice cases can involve misdiagnosis, failure to treat, or treatment that fails below the standard of care.
Liability theories in these type of cases vary to a greatextent. Each of these cases can present unique challenges and require special knowledge of varying rules and regulations. The paralegal must continuously stay abreast of consumer laws, state and federal rules and regulations and be knowledgeable of sources for technical information involved. By acquiring the ability to gather information from a variety of sources, the astute paralegal can cement his/her role as a valuable member of the litigation team.
A.Initial Client Interview/Case Evaluation
Since products liability, toxic tort,aviation and medical cases are usually complex in nature, they wil lrequire a major commitment of attorney and staff time as well as a substantial outlay of money to fully develop the case. Therefore, a large part of the work is done in the initial evaluation of the claim. The paralegal is most often involved in the initial client interview, the likely starting point of such an evaluation. During this initial interview, the experienced paralegal should be able to interrogate the client to obtain information concerning the incident, injuries and client's background. It is in this first meeting that one begins to evaluate damages.
As in all personal injury cases, the computation of damages cannot be determined without gathering all the data relevant to medical care and treatment, pain and suffering, physical disability, lost income, and wages, etc. In most cases, the injury is a permanent incapacitating injury or a wrongful death. It will be the paralegal's role to obtain credible medical records or reports to assure the litigation team of the existence of a real and serious injury such as severe brain damage, permanent spinal cord injury, severe disfiguring burns, limb loss, loss of sight or hearing, or substantial disfigurement. The paralegal should ensure that medical and wage authorizations are signed and that names of all treating and consulting physicians or other medical specialists have been obtained.
In obtaining information regarding the incident, any contributory negligence on the part of the injured party should be noted. If the injurytook place in a work place, it is likely that there are a number of witness that are still working for the same employer. Information regarding all potential witnesses including co-workers, former workers, union officials, visitors to the work place at the time of the injury, first aid staff, emergency room employees and others who may have treated victims immediately after the injury, as well as anyone else with knowledge of the machine, vehicle or product should be obtained.
In product and aviation cases, a detailed statement of the machine, vehicle or other product that caused the injury must be developed in an attempt to determine the manufacturer, the date of manufacture, patent, model and serial numbers as well as document any modifications to the product.
In a mass toxic tort case, the initial meeting may involve many people exposed to the toxin. A paralegal should read about the issues in advance in order to develop a questionnaire tailored to the case. Often this means developing ageneral knowledge in areas of toxicology, epidemiology and the medical specialty implicated in the case. It is understood that all relevant data cannot always be obtained in the initial interview, but the paralegal will necessarily be involved in any follow up investigation from which this information can be obtained.
Developing a comprehensive client questionnaire tailored to the specific case can be an extremely useful tool in gathering necessary information. This questionnaire can be used as a guideline during the face to face interview. It can include detailed questions about a client's background, health history, earning capacity and the incident causing the injury. It can lay out documents that are needed from the client. If it is determined that the case merits further inquiry, instructing the client to complete the questionnaire and gather the documents will enable the paralegal to quickly gather documents and information necessary to fully develop the facts.
It is often the paralegal's role to obtain copies of all investigation of the incidents including police reports, fire reports, union reports, coroner's reports, and reports prepared by state or federal safety and/or health inspectors. Whether the case involves a faulty product, a toxic tort, medical malpractice or aviation matters, the paralegal should know where to go to gather the necessary reports.
In products cases, a paralegal must know what state and/or federal agencies regulate the development, use and marketing of the product. Every effort should be made to determine what warnings, if any were given about the dangers associated with using the machine, vehicle or product including signs, symbols, labels, manuals, posted work rules,oral warnings and safety meetings. An experienced products liability paralegal should be fully informed of technical, government and industry sources available to obtain information about the product involved. These would include technical sources such as American Machinists, National Safety Council, Journal of Occupational Medicine, OSHA, U.S. Department of Defense, Society for Occupational Safety and Health, National Safety Council, and the National Association of Manufacturers. The paralegal should also know what sources to go to to determine available information on the machine or product including the National Institute for Occupational Safety and Health, the Occupational Safety and Health Administration and the ATLA Products Liability Law Reporter.
In the continued investigation of the products liability case, it is necessary that the paralegal become involved in gathering and preserving evidence. A major consideration in any products case is the product's availability. It is essential to gain control, preserve and photograph the product extensively at the accident site and each time the product is moved.
b.Toxic Tort Cases
Toxic tort cases necessarily require developing the patent history of the product in question. The EPA and OSHA are good sources fordeveloping initial information. The paralegal should determine whether exposure is outside or within the standards set by the EPA, OSHA or the threshold limit values promulgated by the American Conference of Governmental Industrial Hygienists. Once the case is well underway, a chronology should be developed on the product beginning with the initial research, patent registration, actual product use in the marketplace and problems as they arose. This information will be easier to develop as depositions and discovery are underway.
Unlike cases of traumatic injury, the effects of a hazardous chemical exposure cannot be observed, but must be deduced. Litigants in toxic tort cases must rely on epidemiology, animal studies and in vitro experiments, presented through well qualified experts to show that the substance in question caused the injury. The carcinogenic or other disease inducing effects of a substance are usually not immediately apparent and the effects of toxic substances are latent, often occurring months or years after exposure, compounding the difficulty of proving causation. Therefore, information gathering is critical.
c.Medical Malpractice Cases
An experienced med mal paralegal should be fully aware of how to obtain and analyze medical records. Because of the focus on a particular incident in the medical treatment of the client, a paralegal should organize and tab the records so that the operative report, history, physical or consult reports can be easily found. Most lawyers and paralegals have their own system as to the organization of records but it is important that they be put in chronological order and meticulously checked for completeness. After the records have been properly organized, a chronology of the events surrounding the alleged malpractice should be done. The type of case will dictate how detailed the chronology should be. For example, if the case involves a misdiagnosis, a chronology of each visit to the health care provider should be done, including any x-rays, lab reports, consults, follow-ups etc. The medical care should be analyzed to determine at which point the proper diagnosis could have been made and what treatment could have been undertaken. Alternatively,if the case involves a specific event that occurred during surgery, the chronology should center around the surgical events and include a minute by minute synopsis of events in the operating room.
Gathering all available information early in the aviation case is essential to the preliminary investigation of the crash. Obtaining National Transportation Safety Board Reports, weather data, air traffic control data and information on the aircraft and its operators are essential. Interviewing eyewitnesses, rescue and emergency personnel, news reporters and local government officials will lead to a better understanding of the facts of the case.
During the course of the investigation in all of these types of cases, numerous witnesses will be identified. The astute paralegal will create a computer database when opening the case and every time the identity of a person who may have knowledge of material facts is learned, that person should be added to the list with a brief sentence about what knowledge he has. Information should include address, telephone numbers, and whether or not the witness has been interviewed or deposed. This “cast of characters” should include the roles and key events in which they participated. In med mal cases, it is helpful to make a list of all health care practitioners that treated the plaintiff, as well as an overview of the treatment provided. This process simplifies answering and supplementing answers to defendant's interrogatories.
Once the initial background and factual information is complete, the paralegal will often play a role in aiding the lawyer in identifying potential defendants. Prior to undertaking this task, the paralegal should have a full understanding as to what the liability theory of the case will be. Potential defendants in any products case often include the designer, the manufacturer, the marketer, the maintainer of the product, or the driver/operator/owner. There are usually multiple potential defendants in a product case. Damages are rarely caused bya single product defect and each defendant may have contributed to the cause of the complained damages in different ways. In medical malpractice cases, the treating physician, nurses, hospital or other healthcare providers are potential target defendants. The paralegal should determine if a defendant doctor is a solo practitioner, owns his/her own company, or is affiliated with a hospital or is part of a professional association. It should be determined if a nurse defendant is an independent contractor or an employee of the hospital and whether the hospital is owned by another corporation. Each potential defendant will have different financial solvency or insurance limits. Even if a defendant is insolvent he/she may often be brought in for venue purposes. An experienced paralegal will be able to obtain these kinds of information for use in evaluation by the attorney.
4.Understanding the Case
Before suit is filed, the litigation team should learn as much as possible about the defect in the product which caused the injury, the aircraft involved in the crash, the toxic substance and the medical injury. If there are no statute of limitation problems, it is best not to bring suit until all relevant facts are nailed down, all witnesses interviews are completed and all liability facts established. This will permit plaintiffs counsel to take the initiative by presenting extensive discovery early after filing suit and before the defendant has had time to prepare evasive tactics. The litigation team should endeavor to assemble and study documents provided by the client and obtained through technical sources. Once these materials are collected and reviewed, the team must decide the overall direction of the suit. In products cases, an investigation must be done to determine whether a particular design element or component is standard in the industry or unique to the product involved in the case. At this point, all copies of accident reports, scene photographs, field notes, police reports, witness statements and other accident scene materials should be compiled if applicable. If roadway terrain or weather conditions have participated in causing the accident, an investigation should be done so that the scene can be diagramed and/or photographed. Information as to medical damages should be obtained as well as any reports or photographs of the incident in question that may have been included in local newspapers. By this phase, the witness interview process should be in progress and the paralegal should prepare a summary of relevant information.
The paralegal often is assigned the task of locating qualified experts with knowledge of the essential facts of the case. This will include both liability and damage experts. The paralegal will also have the responsibility of ensuring that the expert receives copies of all depositions, discovery responses, reports and any other materials that will affect his opinions and testimony. All information provided to the expert should be carefully documented. Remember, anything sent to an expert who will be used to testify or whose information is relied upon by a testifying expert is discoverable.
Once initial investigation is complete, the proper parties are identified, and theories of liability and venue are explored, it is likely that the paralegal will become involved in drafting the petition. Depending on the experience of the paralegal, this can range from obtaining service information on potential defendants to performing legal research on liability or damage issues to preparing a complete draft.
Medical Malpractice cases have notice requirements specific to claims against health care providers. In Texas, the 4590i Texas MedicalLiability Act requires that a letter be sent to all Defendants informing them that a suit will be filed on Plaintiff’s behalf against them. The law requires that the defendant be allotted 60 day notice before a suit is filed against him. After the 60 day notice period has run, the suit may be filed. The law requires that the attorney for the plaintiff file an expert report or cost bond within 90 days from the date of filing. If a cost bond is filed, plaintiffs are still required to file an expert report setting forth the basis of the negligent treatment within 180 days of the initial filing against a particular defendant.
As both federal and state civil courts have almost universally adopted broad discovery rules and modern litigation continues to increase incomplexity, much of the products liability paralegal's time will be spent in drafting and responding to pretrial discovery. "Form" interrogatories and request for production are rarely suitable or productive in complex products liability litigation where each product, plaintiff and set of circumstances is unique. Discovery must be carefully drafted to obtain the necessary information to put forth the case, but should not necessarily be so vigorous as to educate opposing counsel as to the manner in which the case will be ultimately tried. Prior to drafting discovery, it will be helpful to outline the points of proof needed by the plaintiff for his/her prima facie case as well as points of proof which the defense needs to establish any affirmative defenses they may assert. Properly formulated interrogatories will lead to information concerning various documents that should be requested from the defendants. The paralegal should always request copies of or access to any photographs of the product at issue in the case, as well as the product itself and each of the components. In med mal cases involving hospitals, it is important to obtain all policies and procedures relating to nursing issues for the ER, surgical matters or other pertinent departments. Discovery in aviation cases should include aircraft manuals, maintenance and inspection records, training manuals, manufacturers warranties, crash history of the aircraft, service bulletins, certification data, FAA Airworthiness directives as well as pilot logbooks, certificates and ratings.
One cannot over emphasize the importance of the discovery stage of litigation. Ineffective use of discovery may cause the litigation team to overlook valuable evidence. Discovery can be used to open an opponent's case, to discover his/her theories, to foresee his/her trial tactics, and to position him/her so that he/she will begin to think seriously about settlement. Discovery provides the litigation team with golden opportunities to learn and exploit their opponent's damaging weakness. For the plaintiff, discovery presents an opportunity to penetrate the world of corporate thinking, where sales often have a higher priority than product safety and where evidence of this attitude is often buried in corporate records and memoranda. It is often helpful to create a checklist of information to be obtained. The paralegal should always focus on liability theories in formulating discovery. Each set of discovery will be different depending upon the focus of the case.
Equal caution should be taken when answering discovery requests. A careless answering of interrogatories can result in a choice of language that can cause problems during negotiation and trial. Therefore, it is essential to have an attorney involved in the case carefully review all answers to discovery requests to ensure that they do not create unnecessary problems.
In federal cases, the paralegal can address the automatic disclosure requirement early on. According to Rule 26 of the Federal Rules of Civil Procedure, attorneys must make a “reasonable” good faith effort to find and disclose all relevant documents and potential witnesses in the first 90 to 120 days of the lawsuit. By reviewing and gathering the documents and drafting the disclosures early, the trial team will have a better handle on the facts and relevant documents.
A paralegal's role in depositions cases can vary widely. Often a paralegal is asked to draft notices for the depositions of corporate representatives which will require sufficient knowledge of the case so that proper areas of inquiry can be laid out. Tasks often range from scheduling of depositions and subpoenaing witnesses to appear, to formulating questions and attending depositions for the purpose of taking notes and aiding with the introduction of exhibits. It is also the paralegal's duty to read, review, and summarize depositions taken in order to be familiar with the testimony.
A paralegal should never underestimate the importance of managing the voluminous amount of paper that will be generated in complex cases. Being able to access important documents at a moment’s notice is critical. A uniform system of filing and documenting key materials must be instituted from the beginning of the case. Keeping track of what has been produced, what is not subject to production, and what remains to be produced is a fundamental part of a paralegal’s responsibilities.
Document Management System
In developing a document management system for a complex case, a paralegal must first develop goals. When setting up a system the paralegal should strive to develop consistency among all cases and mastery of the documents so that they can be readily accessed and organized in a short period of time. Complex cases can generate tens of thousands of documents but only a few will be crucial in successfully litigating a case. Finding these “hot documents” amidst the mountains of documents supplied by an opposing party requires the implementation of a document management system incorporating: 1) document imaging -the process of creating an electronic copy of a page to be viewed on a personal computer, and 2) document indexing - the process of coding objective and subjective data about a document as part of a searchable electronic database.
Document imaging is the creation of an electronic copy of a page to beviewed on a computer screen. Like a photocopy, it is a duplicate of the page itself. However, the image is not reproduced immediately on paper, but is instead stored in electronic form. Imaging documents minimizes the problems associated with lost or misplaced files, which often result in hours wasted in tracking down the file or sorting through piles of documents. The original, hard copies of the documents can be maintained in their original condition because, once scanned, the originals can be stored away as a backup. The scanned images become the “working copy” from which unlimited additional hard copies may begenerated.
Indexing is the key component of a useable document management system. A database should be created through the entry of information extracted from documents and then indexed and summarized based on the particular issues involved in a specific case. Rather than entering the full text of a document, it is manually “indexed” or “summarized”, using key terms or “fields” and then entered into the database in that format. The computer then searches through the database to identify documents using those key terms.
In setting up a useable database, it is essential that the paralegal know the case as Thoroughly as possible. At the outset, a system should be set up to identify all documents produced or used in the litigation. A Bates numbering system can be devised for documents, photographs, recordings, and exhibits of any kind that will be obtained or produced through discovery and used at deposition. The most important information to include is the document identification number, its date, document type, and author and recipient names. With this information alone, a paralegal will probably be able to find close to 90% of the documents needed. Additional comments can be added to further identify key documents. Although developing a good database is time consuming and can be tedious, the end result is well worth the initial efforts. Being able to pull up key documents electronically will save time and effort down the road, especially at the time of trial.
A paralegal's role in litigation may mean, at times, forcing the individual to wear many hats, play many roles and prepare numerous documents. However, the paralegal who can learn to perfect this role will certainly solidify his/her place on the litigation team.