By Dan Jaffe on February 8, 2017
At many law firms and companies information technology is the moving force changing and enhancing the resource platform supporting product liability defense efforts. These rapidly improving technologies can reduce costs while increasing the amount and quality of available information needed to support the liability defense of products. Automated systems allow lawyers’ tasks to be performed with greater efficiency. Law practice is similar in this respect to other service businesses in which information technology has had a profound impact on workplace organization as well as the type and amount of skilled labor needed to accomplish the enterprise’s goals and objectives.
The skills required for law practice are impacted when essential tasks are automated by processes such as machine learning and natural language processing. “Machine learning” involves processing large amounts of data and continuously improving performance and task completion. “Natural language” refers to systems which can interpret what a human means, deciphering intent and providing more accurate, relevant answers and results. “Informatics” is another technology used to create, store, find, manipulate and share information, including in e-Discovery (especially document retrieval and review), legal research, creation of entity and product specific databases, and preparing legal documents such as discovery responses.
Since the 2008 Recession, clients and law firms have reduced costs by using information technology to partially or fully automate tasks traditionally performed by teams of lawyers and legal assistants. Law practice will continue to be transformed and operate with increased automation, process engineering, informatics, and supply chain management.
In product liability defense these developments manifest themselves in several ways. First, they impact the handling of discovery by the courts. Courts have placed an increasing burden on product manufacturers to disclose all “relevant” information in discovery. Courts today tend to mandate broader disclosure in discovery, postponing many relevancy determinations when potential issues of admissibility at trial are addressed. Illustratively, disclosure of prior accidents involving a particular product in discovery often involves whether particular past incidents were “substantially similar” to the case at bar. Defendants seek to restrict the disclosure or use of past accidents to those which are “substantially similar” to the incident at issue. Currently, courts are more apt to rule that all past accidents involving a product must be disclosed in discovery, and defer the “substantial similarity” issue until later when admissibility issues are considered. This trend has been reinforced by the discovery rules and cases dealing with massive volumes of electronically stored information. The courts have mandated such broad disclosure, since narrowing the information disclosed can be achieved through various e-Discovery tools.
Second, product liability defense has been enhanced in several ways. Lower cost methods of creating text searchable document databases through scanning and word processing technologies has allowed cost effective creation of databases covering subjects such as (1) an entity history database dealing with the entity or entities which designed, manufactured, and sold the product from its first introduction through the time its manufacture and sale ceased; (2) a product history database covering the product’s design, manufacture, marketing and sale from first introduction through the time its manufacture and sale ceased; (3) a product testing database covering manufacturer testing, as well as litigation related testing performed by consulting experts, trial experts and opposing experts; (4) a product warning database including all warnings issued regarding the product and its use, and any recall or retrofit programs; (5) a manufacturer employee and expert witness database including all statements and testimony given on behalf of the manufacturer; (6) opposing expert witness and other adverse testimony or statements against the product; and (7) a database of past incidents, accidents and claims involving the product.
Other automated systems allow attorneys and clients to evaluate, handle and make decisions concerning cost/risk and benefit outcomes: (1) case disposition records specifying the dates, product, case outcome, disposition cost, if applicable, and cost of litigating the case from inception to disposition; (2) discovery response databases collecting prior disclosures concerning the product or entity, avoiding duplicating tasks previously performed, ensuring consistency, and permitting systematic updating; (3) case budgets and actual cost incurred in each phase of the litigation based on the ABA litigation codes or other suitable case management tools; and (4) past work product and legal research regarding the product or client.
All of these resources enable product liability defense to be conducted cost-effectively while enhancing consistency, accuracy and comprehensiveness. It’s a win-win for clients, lawyers and the courts!