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).
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| 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.