Sunday, June 22, 2008

After this Episode, Discovery Should Include the Adverse Lawyer and the Judge

Naturally, the plaintiff lawyer is biased against the defendant. One wants to know if the case has an improper motive.

If the judge makes an adverse ruling against the defendant, one wonders if it arises from personal bias.

One method to find out is to demand e-discovery of all the computers of these adversaries of clinical care.

If they refuse to provide all computers for forensic examination, then one might request sanctions in the form of dismissal of the case. If the judge refuses to submit to discovery and refuses to dismiss the case, a higher court should review this question.


Ben Wright said...

Your e-discovery and forensics suggestions are provocative. They point up a larger observation: As information technology begets ever-growing oceans of records, all legal investigations and prosecutions grow ever more lengthy, revealing, expensive and difficult to close. What do you think? --Ben

Suicide Malpractice said...

Clever use of e-discovery, demand source code for breathalyzer in DUI. Such hardball tactics may become the standard of due care for the defense bar.

There is already a duty to Google in one case. The client sued the lawyer for malpractice for not delivering the judgment and demand for payment. Lawyer said he could not find the defendant. Judge Googled the defendant from the bench, and found an address and telephone number, along with those of relatives. Lawyer lost the malpractice claim.

You may end up testifying as an expert in legal malpractice cases more than doing e-discovery training.

One would also claim that the reasonable patient has a duty to Google. That means there is no more viability for lack of informed consent. About 80% of US people have access to the internet. The remaining 20% may visit a library. If informed consent is a "process" rather than an event, self-teaching about a treatment has to be part of it.

Ben Wright said...

I stand in awe at how rapidly technology is changing concepts like "investigation" and "authority." --Ben

Suicide Malpractice said...

Ben: Good stuff. I guess Germany does not have an exclusionary rule for illegally obtained evidence.

The technology can also deceive, not just reveal. See the people ruined by child porn on government computers, when it was subsequently proven to have been hacked onto the computer.

I am amazed at how slowly technology moves. I am amazed we still had to type these messages after 30 years of personal computing.