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The product liability case Mapa v. Dunlop Tire Corp. and El Monte Ford was a must win for West Palm Beach plaintiffs’ firm Lytal, Reiter, Clark, Fountain & Williams. Must win, that is, or see the firm’s investment of more than $900,000 for costs such as investigation, product testing and expert witnesses go down the toilet. The total cost came as no huge surprise to Lytal Reiter partners Don Fountain and Joe Reiter, lead co-counsel in the case. Because of the technical nature of today’s product liability cases, and because Mapa involved two allegedly defective products — a tire and a vehicle — and two formidable corporate defendants, they knew the case would be expensive to litigate. “We assumed going in it would cost us half a million dollars just to get to mediation,” Fountain said. “We didn’t expect it to get close to a million to go to trial. But once you’ve committed that far you go on, unless the sky falls in.” The case arose from a November 1997 accident in which a Dunlop Axiom tire blew out on the left rear wheel of a Ford Aerostar van driven by Joven Mapa, a California father of three. The ensuing rollover left Mapa with fractures of his neck and spine, leaving him a quadriplegic. Lytal Reiter’s investment paid off. Ford Motor Co. settled for an undisclosed amount prior to trial. In June 2000, a Los Angeles jury found against the Ford auto dealership and West Amherst, N.Y.-based Dunlop and awarded damages of $15 million to Mapa and his family. In addition to its large contingency fee, the firm was awarded $700,000 in taxable costs. “Products cases are financial decisions,” Fountain said. “The costs are so high we turn away cases every day.” The more specialized experts needed for today’s personal injury lawsuits charge as much as $750 per hour — triple the rate of five years ago — or flat fees of as much as $15,000 per trial, said Glenn Burton, a Tampa health care defense attorney who chairs a special committee on expert witness costs for the trial lawyers section of the Florida Bar. At medical malpractice plaintiffs’ firm Grossman & Roth in Miami, partner Neal Roth estimates the average claim takes $100,000 to prepare and another $100,000 to try. West Palm Beach family law attorney Joel Weissman, of Weissman Yaffa & Desmond, estimates his costs have doubled in five years, chiefly in expert fees to psychologists and accountants. Observers attribute the soaring litigation costs to the increasingly sophisticated technology involved in liability situations, which require costly expert witnesses to unravel. In addition, they point to a high-tech arms race in presenting cases in the courtroom. Some see major consequences for both the litigation process and the business of law. Plaintiffs’ lawyers say the rising costs are making it harder for people with meritorious claims to bring their cases. They also warn that the growing movement to cap noneconomic damages could make it more difficult for plaintiffs to find lawyers willing to take their cases, since the lawyers must calculate whether the potential damages will cover their costs. The biggest chunk of Lytal Reiter’s spending in the Mapa case went for expert witness fees. That’s typical of complex personal injury cases such as product liability, medical malpractice and toxic torts. Fountain attributes the skyrocketing cost of expert testimony to the U.S. Supreme Court’s 1993 ruling in Daubert on standards for the admissibility of expert testimony. Before that decision, federal rules of evidence allowed testimony on the basis of its “general acceptance” in the scientific community. But Daubert mandated that testimony be grounded in “scientific knowledge.” The result, Fountain explained, is that experts must spend many more hours preparing for trial. “[Your expert] can’t just look at photos of an accident,” he said. “You have to go to the scene, review the literature, do the testing. It may lead to better-quality testimony, but it comes at a price.” Fountain said expert fees also have gone up because the products and medical practices that are the targets of lawsuits have grown more complex. That means more specialized experts are needed to evaluate them. In the Mapa case, for instance, the analysis of the allegedly faulty Dunlop Axiom tire required the services of metallurgists, compounding scientists and tire designers. “You have experts you never had before,” Fountain said. “They’re doing ‘occupant mechanics’ and ‘bio-mechanics.’ You used to have a police officer’s testimony for accident reconstruction and the treating doctor as the last word on causation.” Fountain argues that plaintiffs suffer more from the growing cost burden. “A company like Dunlop has 10 experts on their payroll to begin with,” he said, “and it has a testing facility ready at hand.” In the Mapa case, according to Fountain, before Lytal Reiter became co-counsel, Dunlop had threatened to “crush” the family’s attorney, Kevin Meenan, a partner at Meenan & Lariviere, in Pasadena, Calif., which is a small firm with limited resources. “Dunlop wrote back to him after he filed,” Fountain said. “They promised to crush him on expenses and the use of his time.” A representative of the Insurance Information Institute, a New York City based insurance industry group whose members are frequent defendants, called expert costs a “huge and growing factor in [insurance] rate increases.” But Neil Vidmar, a Duke University law professor who studies juries and the litigation process, said that corporate defendants have the advantage. His study of North Carolina insurance company records found that experts called by corporate defendants often testified at no charge or for nominal fees. The Florida Bar trial lawyers section appointed a committee two years ago to study the growth in expert witness costs in response to a request from the Florida Supreme Court. It’s finalizing a report on how to address the cost issue, due for consideration by the section this week. Burton, a partner at Burton, Schulte, Weekley, Hoeler & Beytin in Tampa, which focuses on health care defense work, declined to discuss his committee’s draft report. But he alluded to “discussion within Bar circles” of crafting rules similar to those in the federal courts, which limit the number of depositions litigants may file. Currently, Florida rules of procedure set no limit on the number of depositions, which is considered a major driver of costs. Florida’s rules of civil procedure, adopted by the conference of state circuit court judges in 1981, already include provisions to discourage litigants from engaging in excessive discovery. Judges have the power to mitigate the burden on prevailing parties by awarding them the costs of expert witness testimony and depositions. Burton said, however, that such “loser pays” provisions are invoked unevenly, and in a limited fashion, depending on local court culture and individual judicial temperament. Florida judges also have the power to limit the fees a party must pay to the other side’s expert witnesses for deposition. But that doesn’t happen a lot, Burton said. “Lawyers don’t request it,” he said. “There’s a natural fear of souring the [opposing] witness.” Burton said that as litigation costs have climbed, they’re frequently a “component incentive” for insurers to settle what they consider less meritorious claims rather than go forward with litigation. But he emphasized that the rise in costs was an issue of concern to plaintiffs and defendants equally. Herbert Kritzer, a University of Wisconsin law professor who teaches judicial process and research methods, says both plaintiffs and defense feel the pain of rising costs. “It’s a wash,” he said. “There’s no obvious evidence it’s shifted the burden one way of the other. You’ve always had an arms race. When both sides play for big bucks, they never cut corners.” Kritzer speculates that soaring litigation costs could lead to further consolidation among law firms in the big-ticket litigation field. As the resources required to handle major cases grows, he said, a shrinking number of giant firms with deep pockets may come to monopolize the field. On the plaintiff side, solo and two-man personal injury shops increasingly may have to team up with bigger outfits, as in the Mapa case. “Any small lawyer that doesn’t refer out is screwing himself,” Kritzer said. New technology has also made discovery more costly. Computers have greatly expanded information gathering, searching, storage and retrieval capabilities. But they’ve imposed staggering new burdens on lawyers. Before the computer revolution, a measure of the size and complexity of a commercial lawsuit was the number of 5,000-document “banker’s boxes” of documents in the case. But that measure now is meaningless. Today, a laptop computer with a 30-gigabyte hard drive can hold the equivalent of 1.5 million pages of documents, said Al Lindsay, a partner at Steel Hector & Davis in Miami who teaches litigation technology at Miami-Dade College. Lindsay estimates that 90 percent of all documents now are created electronically but that only 30 percent of those are ever printed out. As a result, litigators must hire computer experts who specialize in data mining to carry out their discovery. “Discovery has never been inexpensive,” Lindsay said, “but now the needed technical expertise has made it jump.” According to Lindsay, basic search and location of documents is easier with computers. But digging out more arcane information requires computer forensic discovery consultants who charge fees ranging from $375 to $600 per hour. Lindsay said these pricey techies are essential because production of requested discovery material in a case is often incomplete. He declined to say whether the failure to provide complete data generally resulted from ignorance or guile on the part of litigants. The most important type of material that is withheld is a computer’s “meta data” and backup tapes, Lindsay said. Meta data is electronic code that indicates when documents were created, when they were revised and who has opened them. Backup tapes are devices for long-term storage of information that otherwise is routinely deleted from computer memory. Electronic discovery also requires the use of specialized software to create mirror copies of computer hard drives, which computer forensics experts search for evidence of file tampering and destruction. All these costs typically fall overwhelmingly on defendants, since, under common law, it is the party responding to discovery requests that must assume the expense of complying. In U.S Bankruptcy Court in West Palm Beach this month, a bill for $250,000 from forensic accountants sorting out the $20 million Phoenix viatical fraud prompted creditors to demand a hearing. Discovery in the case has totaled nearly $800,000 so far, against a recovery of only $1.4 million in assets. Judge Steven Friedman ordered half the bill paid and delayed consideration of any further payments for at least 60 days. As another example of how high the costs can go, in a September 2001 white paper for Seattle-based litigation services company Computer Forensics Inc., DuPont Co. litigation support manager Jim Michalowicz described the cost of DuPont’s response to a government subpoena for backup tapes on 100 e-mail accounts. It came to $200,000, not including legal review of the information. Efforts to limit discovery and related costs have been sparse. Opposing lawyers in some cases have negotiated limits. Florida Bar sources say there has been discussion of establishing guidelines like those in federal court, allowing judges to set time limits on discovery. But plaintiffs’ lawyers are likely to continue filing the broadest possible discovery requests. The reason is simple. “They take your witnesses apart under cross-examination if you hold back on requests,” Fountain said. Another major factor in rising costs is the growing use of high-tech evidentiary displays at trial. Top litigators say computerized graphics have become a necessity. In the Mapa case, Lytal Reiter spent more than $78,000 on models, blowups and photocopies of exhibits; more than half that amount went to Miami-based litigation technology consultant Trial Graphix. The law firm spent $10,000 on a frame-by-frame storyboard reproduction of a tire blowout sequence. “It summarized the case without saying a word,” Fountain said. “You have to do it to keep up with jurors’ expectations,” Fountain said, citing movies and TV shows such as “60 Minutes” that employ sophisticated computerized graphics. “Jurors are used to seeing things down to the DNA level of detail. You can’t just blow up photos anymore.” Al Lindsay agreed that high-tech graphics are almost mandatory in big cases. “This stuff is not smoke and mirrors,” he said. “You’re dealing with sophisticated juries of the television generation. This is how they process information.” Defending a corporate client against a claim for $6 million in damages in a month-long jury trial not long ago, Lindsay worked closely with a team of graphics artists to devise a set of 20 large-scale, computer-generated displays to illustrate the chronology of events in the case. Lindsay said the $10,000 investment for the displays helped turn the case from a potential multimillion-dollar loss to a jury verdict in favor of his client’s counterclaim; the client won $200,000 plus costs and fees. “The display was worth its weight in gold,” he said. But as much as trial lawyers tout their fancy new graphics capabilities, the question remains whether these tools really work in swaying judges and juries. The research evidence so far is mixed. Courtroom 21, in Williamsburg, Va., is a College of William and Mary law school demonstration of the uses and impact of courtroom technology. It’s jointly sponsored by the American Bar Association and the National Center for State Courts. Project director Fred Lederer said that high-tech evidentiary displays are “almost certainly effective.” But, he said, “We can’t prove it.” In testing a variety of display systems on juries in full-scale mock trials, Courtroom 21 researchers found measurable increases in jurors’ retention and comprehension of evidence. “Presumably, [the jurors] also found it persuasive,” Lederer said. But, he added, “You don’t win on that basis. You still lose if the evidence is deficient” – no matter how well it’s presented. Even so, Lederer said, the long-term result of greater reliance on digital razzle-dazzle probably will be even higher litigation costs. On the other hand, he predicted “massive savings” in actual trial time due to the more efficient presentation of evidence. Lindsay expects to see all serious litigation-oriented law firms establishing in-house litigation technology divisions, as Steel Hector & Davis already has. In addition, he predicts that more attorneys will become computer-savvy and create their own trial displays using standard software such as PowerPoint — reducing their reliance on outside vendors and keeping a lid on costs. Despite the eye-popping costs, neither plaintiff nor defense attorneys express any willingness to seek less discovery or sacrifice any tool that could help them win for their client. “You use everything you can to hold the jury’s attention,” Lindsay said. “You pay for the best witnesses. You push discovery to the limit.”

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