- How will the parties number exhibits without overlapping? When both sides will be using the same prefix (e.g. Tr. Ex. No. __), I often propose numbering in ranges (e.g., plaintiff will number exhibits in the range of Tr. Ex. 0001 to Tr. Ex. 0999, and defendant will begin numbering at Tr. Ex. 1000). When the parties will be using unique prefixes, no overlapping problems arise (e.g., plaintiff’s first exhibit is Pl. Ex. 0001, and defendant’s first exhibit is Df. Ex. 0001);
- How will deposition exhibits be numbered and marked? If deposition exhibits have been given unique sequential numbers during discovery, I typically recommend assigning trial exhibit numbers based on the deposition exhibit number. (For example, if there were 200 total deposition exhibits in discovery and these were numbered from 1 to 200, then the first 200 trial exhibit numbers would be reserved for the deposition exhibits. Thus, deposition exhibit no. 15 would become Tr. Ex. 15.)
- How will the parties mark document pages to identify the trial exhibit and page number? As discussed in more detail below, I recommend both a standard file name format and agreement on the footer that will be branded on the bottom of each page to identify the trial exhibit and page number.
- How will the parties handle duplicates? When both sides independently generate trial exhibit lists, the two lists will contain competing entries for the same documents. For example, the same email might be identified as Exhibit 142 on plaintiff’s list and as Exhibit 1238 on defendant’s list. My suggested approach to this problem is to recognize that the issue will arise but ignore duplicate entries at first. Once both exhibit lists have been created and exchanged, the parties can then agree to use the same number (often the lower trial exhibit number) when referring to a particular document.
5. Add a Footer to Each Page of the Trial Exhibit to Identify the Exhibit and Page Numbers: Now that the files have been named, I like to put a footer on each page of the exhibit with the trial exhibit number and the page number within the exhibit. For example, page 5 of trial exhibit number one would have a footer at the bottom that says “TX0001-005,” and page 6 of the same exhibit would have a footer that says “TX0001-006.” During examination of a witness, these footers allow you to direct the witness to a single page of a long exhibit, and you can say for example, “do you see the numbers at the bottom right hand of the page? Can you turn to the sixth page of the document that ends in 006?” See the example below of a magnified exhibit footer for the first page of trial exhibit ten.How do you put these page numbers in? I have usually asked my litigation copy vendor to do it, but if you’d like to do it yourself, a program that does it is called PDF Page Numberer. 6. Load Copies of the Digital Trial Exhibits on Your Trial Laptops: Having exhibit copies on your trial laptop makes you more effective in many ways:
- You can easily view an exhibit;
- You can paste copies of pages of an exhibit into your examination and argument outlines. This makes your outlines more useful and complete (you don’t need a binder of exhibits in hand to understand the outline, and your trial tech can use the outline to plan for displaying documents in trial);
- You can think visually about whether an exhibit can be understood and read by the jury, or if you will need a demonstrative or graphic to simplify and/or summarize it.
For your next case, I encourage you to try these tips. If you have any questions about these topics, please feel free to contact me. If you’d like to receive updates from this blog, please click to subscribe by email.