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.