The Paperless Trial
by David L. Masters
by David L. Masters
To talk about the paperless trial, we have to start at the beginning—the beginning of your involvement in the litigation. How you manage documents, from the beginning of the case, will impact your ability to go to trial without paper.
Even in a “paperless” trial, there may be some paper in the courtroom. Depending on the technology available, the nature of the case, and other factors, you may want a physical notebook of exhibits for the witness to work from. Which exhibits go into the notebook depends on the type of evidence being offered and whether the admission into evidence will be contested or has been agreed to. More on this later. The paperless trial described in this article does not involve the use of special software, such as Sanction or TrialDirector. Those are great programs, but not ones that I have used on a regular basis. The paperless trial described here relies on Adobe Acrobat, from start to finish.
Colorado has used electronic court filings long enough that it has become mandatory in civil cases statewide (http://bit.ly/KaSLzg). Add to that a requirement that all exhibits to be offered at trial must be provided to the court in digital form (see Chief Justice Directive 11-01). So, if you start the case by filing the complaint electronically, then send and receive disclosures and discovery the same way, it’s easier to try the case with a minimum amount of paper.
Portable Document Format
Most litigation involves documents of one type or another. To go to trial with as little paper as possible, documents in your case must be stored electronically. Portable Document Format, or PDF, has become the standard for electronic documents. Almost all documents that were created electronically can be converted, or printed, to PDF. Documents that exist on paper can be converted to PDF by scanning.
Disclosure and Discovery
Parties to litigation must disclose all documents in their possession, custody, or control that under the federal rule may be used “to support its claims or defenses.” Under Colorado and many other state rules, documents that are “relevant to disputed facts alleged with particularity in the pleadings” must be disclosed. Typically, a copy of the documents is provided rather than “a description by category and location.”
Documents to be disclosed may come from a variety of sources. Beginning with those you will disclose, keep track of which documents came from which source. As documents are collected, keep a clean set, then create a numbered set, and finally duplicate the numbered documents as a working set. Documents disclosed by other parties may be handled in the same or a slightly different manner. If the documents disclosed by another party are not numbered, then keep a clean set. If the documents disclosed by another party have been Bates numbered, then you will have only a numbered set from which you will create a working set. The working sets of documents are the ones that you spend time reviewing, highlighting, and otherwise annotating.
Documents that come into the case through discovery follow a process similar to disclosure documents. Those to be produced through discovery should be maintained in triplicate: clean, numbered, and work. Documents produced by another party may include a clean set if produced without Bates numbers; otherwise, you will have just a numbered set and a work set.
Like it or not, documents must be reviewed. Carefully. In detail. Often more than once. As your case progresses toward trial, the documents you disclosed or produced need to be reviewed and the relevant portions identified and registered. Likewise, the documents received as disclosures or in response to discovery must be carefully analyzed and the relevant information must be marked and cataloged. The work set of documents are reviewed and annotated. Using the full version of Acrobat, Acrobat X Pro, you can easily comment on the content of documents and identify which likely will be used as deposition and trial exhibits.
During the document review process, it may be worthwhile to create a new folder where you can save documents that you expect will be used as exhibits. Otherwise, when the time comes, find the documents you want to use as exhibits and extract them from the larger file and save each in the exhibit folder. Of course, if the document is not part of a larger file, you simply can use the “Save As” function to put a copy in the exhibit folder.
Think about how you name the exhibits at this point in the process. If it’s too early to assign letters or numbers, you may find it helpful to name the individual exhibit files by beginning with the date in Year|Month|Day (YY
MMDD) followed by a short description. By using the YYMMDD as the first part of the name, the files will be arranged chronologically within the folder. If you prefer to use the exhibit designation followed by a short description, use leading zeros for number exhibits. By using one or two leading zeros (e.g., Exhibit 009), the files will properly sort numerically in the Acrobat “Combine Files” process. Avoid using letter designations for exhibits, if possible, particularly if you have more than 26 exhibits and will have to go through the alphabet multiple times. First, the exhibits do not sort well when named A, B, C, AA, BB, CC, etc. The files clump together by letter and this makes combining them into a single file more difficult. And, when it comes to trial, it’s downright awkward to refer to Exhibit WWW. By court rule in Colorado, plaintiffs use numbers and defendants use letters. However, most judges will allow the parties to allocate numbers for both the plaintiff and the defendant. For example, the plaintiff might be allocated exhibit numbers 1 through 200 and the defendant 300 through 500.
The Exhibit Notebook
After the exhibits have been identified, it’s time to create an exhibit notebook. Well, almost. Before compiling an exhibit notebook, it’s worth talking to opposing counsel to find out which exhibits can be admitted by stipulation and which, if any, will be contested. If your opponent can bring the witnesses to lay the necessary foundations for the admission of his or her exhibits, stipulate to admission. Many judges take a dim view of wasting time by forcing a party to bring witnesses to repeatedly lay the foundation for routine evidence. In most cases, you should be able to stipulate to the admission of most, if not all, exhibits. If you stipulate to the admission of exhibits, you can use them in your opening statement.
There are various ways to create an electronic exhibit notebook. The one described here uses the “Combine Files” function in Acrobat. The documents to be used as exhibits should be stored in a single folder. If your case involves thousands of exhibits, then it may be helpful to divide them by witness or subject in separate folders. Either way, we start with the Combine Files function and navigate to the folder that contains the files that constitute the exhibits. After those files have been selected and added to the combine files list, they can be rearranged by dragging and dropping or by using the up and down arrows at the bottom of the Combine Files dialog box. At the bottom of the Combine Files dialog box is an Options button. Click the button and check the box “Always add bookmarks to Adobe PDF.” Once the files are in the desired order, click “Combine Files” and they will be assembled into a single PDF file. Save the file with an appropriate name (e.g., Plaintiff Exhibits 1-100).
Either before or after the exhibits have been combined into a single PDF file, you may want to create and insert a cover sheet. A one-page document with a title such as, “Defendant’s Exhibits 200 through 279,” or “Plaintiff’s Exhibit Notebook,” provides a place to go when you are done working with a particular exhibit. This page can be included in the Combine Files process or inserted later.
Mark the Exhibits
Use the Text Box tool to create an appropriate label on the first exhibit. Set the properties for the border and background color of the text box, then insert the text formatted to suit your preferences. When you have the first label the way you want it, copy it (Ctrl+c), go to the next exhibit and paste it (Ctrl+v). Double-click in the text area and change the designation from “Exhibit 1" to “Exhibit 2,” continue until all exhibits have been marked. Display the Bookmarks panel to make it easy to move from one exhibit to the next.
Depending on the nature of the case and your personal preferences, you may want use presentation software, such as Microsoft PowerPoint, Corel Presentations, OpenOffice IMPRESS, or Apple Keynote to present an opening statement, or you may use Acrobat to show exhibits to the court. If using presentation software, you may find it helpful to use an application like Snagit to create image clippings of the relevant portions of documents. Trying to fit a full-size page into a PowerPoint slide just doesn’t work very well.
Exhibits that were not admitted by stipulation will require a proper foundation and a request that they be admitted into evidence. In a bench trial, the exhibit might be displayed during the foundation questioning, but the better practice would be to hand the witness a paper copy. This would be the practice in a jury trial. Show the witness the exhibit, ask foundation questions, and move for admission. After the exhibit has been admitted you can display it for all to see and then use the exhibit with the witness. In some courts you may need to ask permission before showing an admitted exhibit to the jury (e.g., “Your honor, may I publish Exhibit 15 to the jury?”).
Even when exhibits have been admitted by stipulation, you still may want to ask foundation-type questions in order to increase the persuasive effect. Having the witness explain the source and history of the exhibit and how the witness learned of the document under consideration should not be avoided simply because the exhibit has been admitted by stipulation. To “work” with a documentary exhibit, you will want the witness to look at a particular part. For this purpose, it helps to have three buttons on the Acrobat toolbar. Use the Marquee Zoom tool to left-click and drag a box around the area to be magnified. When you release the mouse button, the zoom will be implemented. When you are ready to go back to the full page view, simply click the Zoom to Page Level button. If you need to highlight an area of the exhibit, use the Rectangle Drawing Tool. Set the default properties for that tool to a color and opacity level that appears appropriately on the courtroom display. Left-click and drag a box around the area to be highlighted; the rectangle will be opaque until you release the mouse button (it will then be translucent). When you are done working with an exhibit, you can minimize Acrobat or jump to the exhibit notebook cover page.
Many trial lawyers say the closing argument should be written long before the trial begins. It provides the road map of what you need to have admitted as evidence and connects the facts to your legal theory. Presentation software works great for closing arguments. Being essentially “outline” software with the ability to include graphics, these presentation tools are perfect for guiding you and your audience, whether a jury or judge, through your argument and the evidence.
Paperless trials, or trials with very little paper, are rapidly becoming the norm. Electronically filing with the court and exchanging documents between counsel facilitates the process. In the end, presenting and working with electronically stored documents at trial is little different than using paper. D
David L. Masters is the president of the Colorado Bar Association. He is a general practitioner in Montrose and author of “The Lawyer’s Guide to Adobe Acrobat.”