As the trial date approaches, the exhibits must be prepared to hand over to opposing counsel and the court. Frequently, there are last-minute changes to expert reports, exhibits are added or removed, or other issues arise, resulting in a frenzy of work to update all of the binders, remove and replace exhibit stickers, and ensure that every set is exactly the same. A judge will fail to find humor in any of these “little mix-ups” that arise during trial.
Electronic exhibit management
Regardless of whether or not you have a document database (such as Summation or Concordance) prior to trial, it can be time saved and money well-spent to bring in a Trial Consultant to assist in the production of the trial exhibit set. This will have even greater value if you are planning on presenting your evidence using technology such as a TrialDirector database, since the efforts will not have to be duplicated. The trial exhibit database can be utilized for both production and presentation of the trial exhibits.
Identifying the Exhibits
Most firms work with a tabbed binder set to separate and organize the exhibits. In cases in which this has already been done with the hard-copy set, this same system will typically be incorporated into the trial database. In other words, if you have exhibit tabs ranging from 1 to 500, the database will also reflect that convention. If the wheel exists, there is no need to reinvent it.
In cases where this has not yet taken place, exhibits are often organized chronologically and/or by issue. This is also easy to deal with, simply assigning sequential exhibit numbers in the order desired.
Assigning Exhibit Numbers
The trend of the courts today is leaning toward pre-marking of exhibits. That is to say that rather than automatically assigning the first exhibit identified during trial as “Exhibit 1,” the actual exhibit number will have been pre-determined according to its assigned number in the trial binders. This can also be encouraged by a “Meet and Confer,” with both parties agreeing upon a numerical range of numbering.
Generally, the Plaintiff’s exhibits will begin with number 1, and should leave plenty of room for additional exhibits to be added. Often, there is undue concern with which exhibit will be assigned number 1, as if the jury will think it is more important than the rest. This has caused more than one re-shuffling of the entire exhibit set.
The Defendant’s exhibits should leave a sufficient gap at the beginning of their numbering. I would also discourage using letters, as this gets extremely confusing to everyone – especially the jurors. It is difficult to distinguish between a “C” and a “Z” for the listeners. Not to mention, there are a couple letter combinations I’ve heard in court that I’m sure were later regretted.
Final Trial Exhibit Preparation
When working with a database, although changing a range of exhibit numbers does take some work, it does not require nearly the amount of labor it would take to shuffle and print several new binder sets.
One advantage over the hard-copy method is the ability to “brand” the page (Bates) number onto each page for production. This enables everyone to quickly get to the proper page of an exhibit, as opposed to instructing a witness to “turn in about 30 pages or so, and look for the paragraph I’m showing you here.”
Another advantage when exhibits are pre-marked is the addition of electronic exhibit stickers. Once the exhibit list has been finalized, these “stickers” can be applied to the first page of each exhibit. Then, a pdf set can be generated and sent to a print vendor for binder assembly. A benefit of the electronic sticker, aside from the fact that nobody has to stick them all onto the exhibits is that they do not add any width to the page. So, your exhibit binders won’t gain thickness in the bottom right corner where all of the stickers are.
Summary
Handling exhibits electronically can save a great deal of time not only during the trial itself, but also in the preparation process. I recently had a client (an attorney) tell me that in many years of litigating, he has never before felt as well-prepared and confident prior to trial as a result of managing everything electronically. In another matter, a paralegal shared her observations on how the trial preparation process is much more efficient when handling exhibits electronically, as opposed to printed binders (as a result of having to renumber the entire set within a week of trial). When comparing electronic to hard copy exhibit management, the difference in the level of efficiency can save a lot of time and money.
This type of trial exhibit management may require the services of someone with strong qualifications and experience, but the time and money saved will more than make up any difference in cost. Make sure to check and verify the background and trial experience of the person who will actually be with you in trial – an off-site project manager or sales person can be of little or no value at 1:00 in the morning. When it comes to trial support, there can be a significant difference between cost and value.
Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication"
Member, American Society of Trial Consultants
Certified inData TrialDirector Trainer
415-291-9900 San Francisco
Litigation-Tech LLC
"Enhancing the Art of Communication"
Member, American Society of Trial Consultants
Certified inData TrialDirector Trainer
415-291-9900 San Francisco
213-798-6608 Los Angeles
http://www.litigationtech.com/
tbrooks@litigationtech.com
http://www.litigationtech.com/
tbrooks@litigationtech.com