Litigator David Cohen first got involved in nursing home litigation in 1998, when he was practicing at Stark & Stark in New Jersey. At the time, he said, “attorneys were turning these cases down, thinking if a person was old and frail, these cases weren’t financially worth doing.”
Now, 20 years later, Cohen has taken the solo practice he founded last year and affiliated with Philadelphia litigation firm Sacks Weston Diamond.
Cohen and Sacks Weston partner Scott Diamond spoke with The Legal Intelligencer about nursing home litigation and Cohen’s take on “analytics” in the age of electronic medical records and artificial intelligence in the law. Cohen admits his methods are time-consuming, but he contends they pay off.
Answers have been edited for length.
How is this affiliation beneficial to both firms?
Cohen: I was at Stark & Stark in 1989 through 2017, then I decided to open my own firm. The firm I created was just me without staff. It grew much more quickly than I ever would have anticipated.
I’ve had a lot of lengthy and wonderful discussions with the attorneys here. From a litigation and intellectual point of view, they’re just powerhouses. Their staff is wonderful and that’s something I’m excited to avail myself of.
Diamond: From a selfish perspective on my part, since I was the one doing the majority of litigation involving professional negligence, I now have someone who can work with me and teach me some tricks of the trade in the nursing home things. It’s just a good mix. I have an experienced person here to bounce ideas off, work on cases together.
You refer to your practice as using analytics. What do you mean by that?
Cohen: In terms of the analysis it’s taking apart the case in a nontraditional way to demonstrate what thematically the lawyer wants to demonstrate.
At the end of the day, analytics is just analyzing. It’s easy for all of us to go into automatic in a case. [But] there are so many different wildcards that are attached to a claim. Unless we take the time to analyze all those things and mindfully address them … I don’t know if we would be doing our clients justice.
What are you doing differently in that regard?
Cohen: I will approach a medical record with a specific issue in mind. If I have someone who has been in and out of a nursing home … I will approach the chart with one issue only—whether or not they’ve tracked my client when he or she wasn’t in the building. One of the things that I do that’s different is I will become a one-issue candidate for a full chart issue.
Does that involve using new technology?
Cohen: We’re at a crossroads right now. With electronic medical records, I have not that deeply dug into the metadata to find the falsifications. I know a few folks who are trying to forge the way … but there are ways to deal with the EMRs to find the falsifications.
It seems like this is a time-consuming practice and method, in an age where efficiency in handling client matters is at a premium. How does that affect your practice?
Cohen: It is less efficient and more time-consuming, but it’s a decision I’ve made that that’s how I want to practice. When I get a second or third copy of a chart in and I know I’m going to sit down and look at it one page a time, I get excited. … When it does bear fruit, it’s big fruit.
Our agreements with our clients are 100 percent of the time contingency agreements. [So clients are not paying by the hour for this work.]
Diamond: I think it’s probably the appropriate way to handle the files. The deeper dive into the files often finds things that add value to the case.
I think that in terms of efficiency with document reviews, we use the standard kind of software to compare different things. I don’t think there’s a fix for being more efficient on these things. I refer to it as being thorough versus being careless.
Cohen: In reality, someone shouldn’t do nursing home litigation unless they do that deep dive. In my view, the very nature of this area of litigation, if it’s going to be done right, requires that level of time commitment. I think it creates better results for the client, because in doing it, things get uncovered that create value.
Diamond: The larger complex cases involving any kind of professional negligence are generally document-heavy. David’s method to handling those files is going to benefit all of those cases.
[Employing Cohen’s methods] doesn’t change our case management software usage or document management usage … what’s changed is the caliber of the person handling these complex cases. It sounds contradictory, but that is the efficiency. Without that, the case value is much less.
Cohen: The many things that are nice about it is that both firms were paperless going in. We both don’t produce a lot of paper. When we interact with experts we’re not mailing them piles of paper. As far as the day-to-day piece of this, both firms come into this efficiently.
Do you see artificial intelligence as a threat?
Cohen: If there was a bit of software that could find false charting for me, I’d be thrilled. But there’s too many variables. [Electronic medical records] have made some kinds of false charting impossible. In the world of litigation, of figuring out how to prosecute a claim because a consumer or other person was harmed … I don’t see that going to artificial intelligence.