Litigation Support

Achieving Greasy, Fast Demon Speed in Exhibit Workflow at Trial

By Shannon Bales posted 01-24-2021 20:25


Please enjoy this blog post tip from Shannon Bales, Litigation Support Team Lead, Munger, Tolles & Olson LLP.

Rocky Balboa: I can’t learn how to fight right-handed no more.

Mickey: What’s ‘can’t?’ There ain’t no  ‘can’ts’! …he will beat you uglier than you are now. …you start fighting right-handed, then you change suddenly and that’ll make history… But foist, you gotta get speed. Demon speed. Speed’s what we need! We need greasy, fast speed! Now here’s what I want you to do…

Have you ever been a few days into trial and look across the room and see a team that is worn out? They’re already exhausted and to use a boxing analogy “on the ropes”. What would another hour or two of sleep have meant to the team? Moreover, what would another hour or two of legal preparation versus technical preparation have meant for their case presentation? The team is often waiting in the wee hours of the night for a binder to prepared, exhibits converted to an image format or a branded version of an exhibit so they can properly prepare for the coming days proceeding. Often the roadblock to performance begins with poor planning, inadequate workflow and lack of technical tools and ability. Today I’m going to focus on three tools to help you quickly rename and brand exhibits at trial so you can achieve greasy, fast demon speed. 

The trial management order “TMO” is the document that lays out the rules of the case and should include technical formats for exhibit exchange. Technical format is the file type, file name and branding requirements for exhibits exchanged in a legal proceeding. Typically, parties exchange a PDF, named after the exhibit number with the exhibit and page number branded in the lower right corner. For excel and PowerPoint’s I typically request a native file as well to supplement an imaged copy. Last, remember to keep naming options simple so you don’t get bogged down with complicated branding and naming schemes at 3am during trial - I like to use a 4 digit exhibit number and 4 digit page number (example: TX0001-0001).

I’ve unfortunately been on the receiving end of a data dump where files were sent that were not named correctly and in several different image formats. This is potentially hours of work dropped off at midnight and will have the effect of not allowing the team to prepare adequately (almost as if it was by design…hmmm) and potentially slowing down court proceedings. Having unbranded documents presented in court does not aid fact finder comprehension or court efficiency. Burden shifting is when one team shifts their responsibilities to another team and is unfair. Being able to point to the TMO standard and the negative effect on court efficiency and the ability of the team to prepare fairly is typically enough to change the bad behavior and puts the early hour work back on the offending party where it belongs.

Most teams use Adobe Acrobat or a vendor to prepare exhibits but there are potentially cost and performance issues with using both. For example, are you going to pay a vendor to remain on standby throughout trial to brand and name files (getting a handful of files at midnight on Saturday probably doesn’t justify the cost of them waiting)? Will you have the time to upload and download files to an offsite vendor?  How reliable is the upload/download connection? On the other hand, Acrobat has some batching and branding ability, but it isn’t really built to be at “legal speed” because its batching ability doesn’t work as well (or as fast) as the tools below and isn’t geared towards the legal market for this task.

Instead teams should consider the following three tools:

You’ll want to create a workflow where exhibits are first added to a project plan using their names. Designate one person to be a “gatekeeper” who will intake all exhibits, conform them to the technical standard(s) and store them in a shared location. When teams don’t have a gatekeeper or workflow in the intake and processing of exhibits, they are often lost or not treated consistently – which leads to embarrassing situations in court where your credibility can be questioned.

Before you begin any of these tasks make sure you have a backup of your data and that you know how to use these tools before you get to court. Last, prior to trial, discuss the workflow of exhibit creation with the entire team, introduce your gatekeeper and enforce workflow rules during the trial or things will go astray.

Total Commander for Project Management and File Name Change:

Use Total Commander to copy the file names to excel and rename to exhibits numbers.

1) Right click to select the files you want to work with (the file names will turn red if selected)

2) Go to “Mark” on the menu and select “Copy Selected Names to Clipboard”

3) Copy files to Excel:

4) In Total Commander, Go to “Files” on the menu and select “Multi-Rename Tool…”

5) Type “TX” (for Trial Exhibit) in the “Rename mask: file name” dialog box and select “[C] Counter” [This will place the prefix “TX” in front of your exhibit name and number/name the exhibit sequentially). Also select your starting number and number of digits under “Define Counter” on the right (“Start at” and “Digits”). As you make selections note the “Old name” on the left, and the “New name” on the right. Select “START” to make your changes (BE SURE TO HAVE A BACKUP!!!)
6) Using the steps above in 1, 2 and 3 copy the new exhibit numbers to excel.