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Madison, Wis., plaintiff’s and criminal-defense attorney Stephen Eisenberg had never considered himself very technologically reliant. But when he took the case of a man whose family sought damages from a Madison hospital in which the man was left paralyzed after suffering a broken neck in 1999, Eisenberg got himself up to technological speed in a variety of ways. In the end, after a Dane County jury on June 5 awarded his client $12.7 million (reduced to $6.6 million by Wisconsin’s cap on payment for pain and suffering in medical-malpractice cases), Eisenberg assessed his use of new machinery, new software, and other technology for the trial as a strong contributing factor in achieving a favorable verdict. Eisenberg’s client, high school art teacher Scott Dickinson, had been taken to St. Mary Hospital Medical Center while suffering from a psychotic episode on June 20, 1999. He suffered paralyzing injuries when he tried to dive out of a window, striking his head on the glass and breaking his neck. According to Eisenberg, Dickinson had been suffering periodically for several years from a mental disorder that had been diagnosed in several ways, including schizophrenia and bipolar disorder. His illness, which Eisenberg said was characterized by voices in his head, had resulted in several hospitalizations. This pattern, Eisenberg said, meant that the hospital held a duty of care to protect Dickinson from hurting himself. In fact, he said, the night before his debilitating injury, Dickinson had also been brought to the hospital’s emergency room, where he’d repeatedly tried to ram his head into a window and onto a tile floor. Eisenberg, Pamela Baumgartner (an attorney from his four-lawyer firm who assisted in the case) and paralegal Melissa Radcliffe recently discussed the role that technology played in preparing for and trying the case. NLJ: How did you use technology to begin educating yourself about this case? RADCLIFFE: First I went to Amazon.com. They had practically all the books that we needed. There was one book by the American Psychiatric Press, “The Psychiatric Uses of Seclusion and Restraint,” that was hard to find. We ended up finding it from a used-book seller on Amazon. We also went to the American Psychiatric Publishing Web site, which is www.appi.org, and found two other important books there. NLJ: How about your experts? [Eisenberg's primary experts were Dr. Thomas Gutheil of the Harvard Medical School and Dr. Phillip Resnick of Case Western University School of Medicine. Both are forensic psychiatrists.] EISENBERG: You know how you find these guys? All you do is, you get on the Web [ www.search.msn.com, www.google.com, www.yahoo.com, www.altavista.com] and you look up your topic, such as “risk prediction, danger of in-patient violence,” and you find that the guys who write this stuff write 50 articles on it. That’s the first step. I don’t want to disparage anybody in the ads in the magazines, or the groups you can call and they’ll give you a witness. I think the best way to do it is to find out who publishes in the area you’re looking for, and go do some basic research. It can’t take you more than a couple of hours on the Internet, and then you call those guys. NLJ: Any other pretrial technological tools that you used? RADCLIFFE: We went to www.trialsmith.com and they have a whole bunch of depositions from people around the country. You can also access any articles that they’ve written. There’s a fee if you want to access the depositions. EISENBERG: We didn’t actually use any of them in the trial. It’s very hard to find a depo that’s going to be on point. BAUMGARTNER: But they helped us a lot to prepare for the depositions by those experts — by reading how the other lawyers questioned them and what their answers were in certain areas you could prepare for how you were going to depose those experts. NLJ: What about once the trial began? How did you use technology in the courtroom? BAUMGARTNER: We loaded in many of the exhibits into the computer and used [Microsoft] PowerPoint, so they were all pretty much at the ready whenever we wanted to put something up on the big screen so the jury could read along with it. I think the jury enjoyed being able to read medical records along with some other exhibits that were up there too. EISENBERG: We used the E.R. records — the night before and the morning of — which were five or six pages long, but everything in them we wanted to show the jury. So it was easy to show the whole page and the nurse’s narration, which was a page and a half, about how he broke his neck. NLJ: What is the advantage of PowerPoint? What does it give you? EISENBERG: The advantage was this: One of the biggest complaints I’ve always heard from jurors is, “You know, everybody’s looking at this exhibit; the judge has one, the lawyers have one, the witness has one, and they’re all looking at it and reading from it and we have no idea what the hell it says!” When you have a lot of information, juries comprehend more when they’re reading it than when they’re just hearing it. The E.R. reports were just full of information that Scott was a danger to himself, and they were just too good to have someone just sit there and read them, and they were too good to just blow them up as poster boards, 2 feet by 3 feet, because those are still hard to read. The other nice thing [about using the E.R. reports on PowerPoint] was there were a lot of corrections. The nurse would scratch things out — actually having the jury see the scratch-outs sure beat telling the jury about them. NLJ: Are there disadvantages to PowerPoint? EISENBERG: With blowups, you can leave them all over the courtroom, but once you move to a new subject with PowerPoint, it’s gone. With blowups you can talk about three things, three different blowups, and they’re all right there. And in Wisconsin, most exhibits can be taken back by the juries, but juries can’t take PowerPoint back with them. [The paper exhibits used for PowerPoint files, however, can be used by juries in deliberations.] The other thing we used [PowerPoint] for was the timeline, and there’s a computer program for that. RADCLIFFE: It’s called TimeMap2. You just enter in the dates and what you want the text to say and it puts it all in a nice timeline for you. NLJ: It’s a timeline of his illness and episodes? EISENBERG: It was like “ER 6:05 to 8:50, transport to psych ward, hurt hand, 8:10, breaks neck 8:20.” BAUMGARTNER: It’s made by CaseSoft, and it’s really inexpensive, only about $150.

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