Managing Exhibits in Trial

Exhibits are the building blocks of litigation, and if you end up at the short end in the battle of admitted evidence, you lose the trial. Like many sports, coming in second place in trial is not really a good thing. While you may have to play the hand you've been dealt, you do have options as to how you manage and present your evidence.

For purposes of this article, we will assume that you have a large volume of documents – although the recommendations and best practices shared may be applied to cases of any size.

Organizing the Data

You may already be onto the idea that finding what you need during trial is fairly important. Setting up a reliable data structure can mean the difference of finding that key document in a hurry, or not finding it at all. This relates to naming and structuring of folders and files. While there isn't necessarily a right or wrong way, there are definitely good and bad ways for this.

One method I've seen that might seem helpful and informative is descriptively naming files and folders (e.g., 5/12/2012 Letter from Ms. Jones re: Smoking Gun.pdf). While this might appear to make sense when you’re looking at a half-dozen exhibits, it can quickly become an epic fail in a database containing 100,000 pages. Instead, you should stick to simple and minimal alpha-numeric naming structures, driven by things such as date, Bates numbering, document origin, etc. One method I often use for keeping like-items together is to add a prefix, such as “DEP” for deposition exhibits, GFX for graphics, XPT for scanned transcripts, etc. It depends on what you have to work with.

Rule #1 – If you don’t understand the above, please get some help.

Identifying Your Exhibits

One of the best parts of using trial presentation software (i.e., TrialDirector, Sanction, ExhibitView, Visionary) is that you have the ability to assign more than one ID to any exhibit. In other words, if your database is set up with a Bates numbering order, you can add a Trial Exhibit number at any time. This makes it unnecessary to wait until the last minute when trial exhibit lists are exchanged with opposing counsel. It is much quicker and easier to simply add the exhibit numbers to your database than to start scanning yet another set of the documents. For database sorting purposes, I will generally use at least 4 digits for an exhibit number (e.g., 0001), followed by a dash and the page number (e.g., 0001-007).

TrialDirector database

Additionally, setting things up in an organized database means you can (and should) include everything you have. Don't try to sort out the important stuff so you can leave it back in the office during trial. It's much better to have it available.

Rule #2 – If you don’t understand the above, please refer to Rule #1.

Adding New Exhibits

Assuming you've set up the database and its contents in a decent manner, you’ll want to maintain it during trial, as new exhibits are introduced. Maybe you’re thinking that if it’s not on the exhibit list, it doesn't exist? I’m thinking that nearly every trial I've been in (and that’s a lot of them), I've seen new exhibits added or existing exhibits changed (such as using only a portion of a larger exhibit), which must now be included in your database. Assuming you have also been maintaining a full backup database (please don’t tell me that you only have one copy), you’ll need to have a way of quickly checking if everything is current. You could use a data sync application for this, however, if you are moving data back and forth, and not only in one direction, this can cause problems.

With respect to naming the “new” exhibits, if they relate to something already in the database, it can be helpful if the document ID is similar, so the new exhibits sorts near the old version. With the folders, I will often create a series of dated folders within the original set, which quickly shows me if something has been updated. If you were to simply continue adding exhibits to one existing folder, it could be difficult to locate the new files which have been added.

Also, while PDF documents are probably the most common format, using TIFF images allows you to set document breaks in your database. This allows you to easily split large multi-exhibit files into individual exhibits. I have seen many instances of opposing counsel handing over large PDF files, which contain 1000 or more pages, and comprise several exhibits. Although you can still manage them, it is much easier to break them up into their actual exhibit structure. Plus, if you convert to TIFF, you can also run and add searchable OCR files to your database, allowing you to find that smoking gun document when you need it.

Rule #3 – If you don’t understand the above, please refer to Rule #2.

Presenting the Evidence

If you've followed all of the guidelines above, bringing up a desired exhibit should be as easy as typing 1-2-3-4 (for exhibit 1234). Page 47 of the same exhibit would simply be 1234-047.

With all of the bells and whistles available in trial presentation software, the two most commonly used (yet basic) functions are the zoom and the highlight. If you can bring up the right exhibit, zoom in on a paragraph to frame the subject, and then highlight the key text, you can lead the fact-finder to the exact point desired.

This is a far better technique than passing out exhibits to the jury, or even using a document camera (e.g., ELMO). Using technology in trial will enable you to get more evidence in front of the jury, and more quickly. Plus, your added bonus is that they have a better chance understanding and retaining it.

Rule #4 – If you don’t understand the above, please refer to Rule #3.

Using Deposition Video in Trial

From LitigationWorld, a TechnoLawyer weekly newsletter:

"Congratulations to Ted Brooks of The Court Technology and Trial Presentation Blawg on winning our LitigationWorld Pick of the Week award: Tips for Using Video Depositions at Trial"

There are several ways in which deposition video designations may be used in trial. The first and perhaps most frequently used technique would be using it for impeachment purposes. When compared with reading back some testimony of a solid impeachment, playing that same section as a “clip” can easily pack twice the punch. After explaining the deposition process and that the witness was under oath during the deposition as well as now in court, watching the same person tell two different tales can immediately cause jurors to seriously consider the credibility of the witness. I have actually seen the demeanor of a confident witness change when they have to face themselves on the big screen – and then face the jury.

Another common reason for using deposition video is the absentee witness. If, for some reason a witness is unavailable to testify “live” during trial, their depo may be used. The typical procedure for presenting the absentee witness is for the party calling the witness to first mark their designations. Next, opposing counsel marks their counter-designations, followed by both parties marking their objections to be submitted to the Court for ruling. Additional steps in the “Meet and Confer” process might include one party marking their direct, opposing then marking both counter and cross, and then the other party marking rebuttal designations.

Once the Court has ruled, the resulting designations are generally played back in the order they occurred during the actual depo, regardless of which party has designated what. Otherwise, one party could get left with little more than a bunch of “sound-bites” with no real context. To play them with the added context could result in playing portions of the depo twice – probably not the best use of the Court’s time.

In order to make all of this happen, the video is synced to the transcript text, allowing one to quickly prepare and play depo video, simply by selecting (and quickly editing) the transcript text. Preparing video depo clips is as simple as entering the pages and lines of the desired designation. While it could easily take a matter of several minutes to do this with a video editing program, it takes only a matter of seconds, using something like TrialDirector.

TrialDirector offers a number of options for playback of deposition video. I have prepared an explanation of all of these for counsel in a recent case, so I will now share that with you here.

Classic -- This is the way we used to do it with earlier versions of TrialDirector. It still works fine, but reduces the video display a bit, compared with the newer closed-caption option.

Classic 2 -- Here we are showing more text and less video. This could be a good option where the text needs extra focus, such as with a witness speaking another language with an interpreter.

Closed Caption -- This is the format we use most often nowadays when we need to display text. This gives a large video image, and includes the scrolling text.

Closed Caption - 2 -- Offers a smaller video display with the same amount of text as the Closed Caption option. This can be helpful when the lower edge of the video display is important, such as for showing a witness’ hand movement, time/date display, etc.

Video Only -- This is another method we frequently use when text display is not desired.

Transcript Only -- This format may be used for audio recordings, offering a helpful script for jurors to follow. Alternatively, you can also use a blank screen, or blank screen with scrolling text.

Overlay -- This is a nice option when the text is critical, although the video image is pretty small – showing quite a bit of text yet to be spoken. This can be used effectively when a witness speaks another language and uses a translator.

Overlay 2 -- Similar to above, but shows less text not yet spoken, more text already spoken. The disadvantage with this option is that the viewer sees only part of the text which has not yet been played, perhaps actually causing distraction, as a juror attempts to read what is not yet displayed.

Each of these options mentioned above can be easily enabled by toggling a preference setting. The format you choose should consider what is important for jurors to see - video, transcript, or exhibits. Other special circumstances should also be considered, such as translations, and poor audio or video quality.

You can display the deposition video along with the full text of the designations, and can also add the exhibits at the same time. This requires setting up both video and exhibits for display in advance or can be controlled as-needed during trial. This is very effective for displaying the (admitted) exhibit to the jury as the witness discusses it.

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What’s Up with Trial Technology? CourtLogger, JuryPad, LinkedIn, LegalTech, MyLegal

Here are several recent items of interest to attorneys, paralegals, and other legal professionals.

LegalTech 2013 has just wrapped up, and attendees say this year was as good as ever. The Law Technology News site is currently filled with commentary and related articles. LTN is a consistently great resource of info for lawyers and legal-geeks alike.

 The Trial Technology group on LinkedIn now has a membership of over 3300, and continues to grow rapidly. Considering the specialized nature of this group, that’s one big bunch of members. One of my favorite items are the monthly polls, with this month’s entry asking, “Who are you working for, anyway?” Looks like we have a lot of action in the small-to-medium law firm category at this point. For your convenience (and because it might be difficult to find this on your own), here’s a direct link to all polls on the group.

Speaking of LinkedIn, I recently received an email from LinkedIn, informing me that I have one of the top 1% most viewed LinkedIn Profiles. This was sent out in conjunction with an announcement of their 200 Million Members milestone. I guess 1% sounds better than “one among 200,000.” In any event, thanks to everyone who’s viewed my LinkedIn profile!

I've been meaning to do a couple more in-depth app and software reviews, but somehow work seems to take a higher priority – go figure. Rather than keep them both on the back burner, I’ll offer a brief description of each of these new products, and will include links to get additional info.

CourtLogger Pro (and CourtLogger Lite) were developed by fellow Trial Consultant John Eamigh. I’ve enjoyed the opportunity to use the Pro version in trial, and can tell you that it really works well, and can save your case. Many recent new features were added as a result of many hours (including my own) of actual use and feedback.

In a nutshell, CourtLogger is a trial time-keeper. Have you ever had a Judge put time restraints on your trial? If not, you might expect to see it one day soon. In any event, this software will help keep an accurate record of who has taken up how much time, exhibits admitted, and witness notes. Although it may be best used by a second-chair attorney or paralegal, it is simple enough to work with that it could be added to the duties of your trial presentation consultant, or possibly even lead counsel. Mention to John that you read about it here, and he will have a special deal and trial version for you.

JuryPad is a great new iPad app developed by attorney Stephan Futeral, with Bench and Bar LLC, which is one of the cleanest and most efficient apps available for voir dire (jury selection). It features a very simple interface, which is crucial during voir dire. Like other apps of this type, you’ll be in much better shape if you are able to add basic juror info ahead of time, making minor edits and changes on the fly. If you have to enter all juror info during voir dire, many have found that the sticky note is still quicker. Not better mind you, but a little quicker. One very nice feature is the demographics graph, which can’t be easily done with paper. Also, they’ve included a sample case! If you’ve read my previous reviews, you’re well-aware that this is one of my pet peeves. A sample case helps you get up to speed quickly. I’ve reviewed similar apps on this blog (search voir dire or jury), and at $19.99, this is one worth considering.

MyLegal has been working on expanding their legal support services directory, making it a good place to locate and gather insight on potential vendors. The unique part about MyLegal is the referrals section, where actual clients offer their opinions of the vendor. My Litigation-Tech business listing there shows an example of the format. It’s more than just an ad, but also (in many listings) an endorsement by actual clients. To use the site, just enter a search term and go. You may also narrow down your results by entering the city, if desired. If you’re a vendor, and would like to add a listing, enter the discount code found in this announcement.

Finally, we've recently updated the Litigation-Tech site, and were selected as a Best Courtroom Presentation Provider by the Recorder and its readers. It’s more on the clean and simple edge now, since this blog contains all of our recent articles. If you’re still interested in getting to some of the old articles and information, it is still available via a back-door link.