GPSOLO June 2010
The Solo and Small Firm Litigation Tool
“As a general rule the most successful man in life is the man who has the best information.” So said the 19th-century British politician and author Benjamin Disraeli. That rule holds true for lawyers, but it shouldn’t be limited simply to having the best information. To be a successful lawyer, you need superior understanding and command of the information pertaining to the matters you handle. Adobe Acrobat can give you that understanding and command. Acrobat can be your tool for organizing, reviewing, analyzing, and presenting all your case information, from initial analysis through discovery and on to trial. To be sure, specialized litigation support applications can provide this function, but they are expensive, generally limited to use in litigation, and often have a steep learning curve. Acrobat, on the other hand, can cost less, be used in almost all other aspects of your practice, and has a user-friendly, easily understandable interface.
Adobe Systems ( www.adobe.com) offers several variations of Acrobat 9 (the current version): Standard, Pro, and Pro Extended. These are not to be confused with the free Adobe Reader. With Reader you can view, search, and print Portable Document Format (PDF) files. You need one of the full versions of Acrobat to create PDF files; scan paper to PDF; apply security, redaction, and Bates numbers; and more. To use Acrobat as your primary litigation application, you need Pro or Pro Extended.
The Pretrial Role of Acrobat
As counsel you need to organize, store, analyze, retrieve, and share a good deal of information. Clients bring you information when the litigation begins, and you then may go to other sources to obtain additional information. With Acrobat, the information you receive in paper or digital form can be converted to PDF so that it can be organized, stored, retrieved, and shared easily and efficiently.
Incoming paper-based information. The information that comes to you on paper should go through a workflow that consists of: (1) scanning, (2) optimization or PDF file-size reduction, (3) optical character recognition (OCR, not possible or necessary for all documents), (4) bookmarking, and (5) Bates numbering. Once paper-based information has been converted to PDF, you are set to conduct your analysis and then share what needs to be shared with clients, opposing counsel, and witnesses.
Scanning. Think of scanning as making a clean copy of the documents that you receive from your clients and others. When you run the pages through the scanner and save them to PDF, you have made digital copies—images of the actual pages. To minimize file size, provide good-quality print reproduction, and facilitate the OCR process, documents should be scanned as “black and white” at no less than 300 dpi (dots per inch). Store this set of PDF files in a folder that indicates their status as the “clean” set (e.g., …\DocsClean).
Optimization or file-size reduction. After documents have been scanned, you may want to “optimize” or reduce the size of the PDF files. In most cases the default settings for “Optimize Scanned PDF” (a selection on the Document menu) are appropriate for maximum efficiency—saving space by removing embedded fonts, compressing images, and removing items from the file that are no longer needed. If optimization does not produce satisfactory results (usually associated with unacceptable image degradation), try using the Reduce File Size option on the Document menu. The Reduce File Size command resamples and recompresses images and removes certain embedded fonts. It also compresses document structure and cleans up elements such as invalid bookmarks. If the file is already as small as possible, this command has no effect. You can sometimes reduce the file size of a PDF simply by using the Save As command (on the File menu). The Reduce File Size command can be run on multiple files; the Optimize Scanned PDF command cannot (but it can be set up as a Batch Process from the Advanced > Document Processing menu).
Optical character recognition (OCR). You can use Acrobat to recognize text in documents that have been scanned to PDF. OCR adds a layer to scanned PDF files that allows you to search, highlight, and copy text. That said, be forewarned: OCR does not produce text that matches the image 100 percent. Do not rely exclusively on searches of OCR’d PDF files to determine the existence or nonexistence of specific information.
Bookmarking. Bookmarks make PDF files more powerful than their paper counterparts. As you review discovery documents scanned or printed to PDF, quickly identify each separate document (or each significant document) within the file with a bookmark. Bookmarks are the quickest way to organize and provide navigation in PDF files. Think of bookmarks as an easily created hyperlinked table of contents. Adding bookmarks to a 100-page PDF file can be accomplished in a matter of minutes; once done, this powerful hyperlinked table of contents exists for all other users of the document. Bookmarks can be nested to show a hierarchical order, color coded, revised, added, and deleted at any time (as long as document security settings permit).
Although bookmarks look and act like a hyperlinked table of contents (a linear depiction of subject matter within a document), they can be used in a nonlinear fashion and put to a slightly different purpose. Rather than creating bookmarks that describe the referenced materials linearly by subject, consider creating a set of bookmarks that reflect issues (liability, damages, etc.). The issue bookmarks would be the primary level of a bookmark hierarchy, with nested marks using content, or subject-descriptive titles, to link each portion of a document to an issue. This arrangement would be nonlinear insofar as the issues need not be listed in the order of appearance within the PDF file; the nested marks might even be coded and ranked by the power or weight with which the referenced material supports the parent issue.
Bates numbering. Bates numbering refers generically to applying sequential numbers or alphanumerical markings to documents so that each page may be uniquely identified. The “Bates” in Bates numbering refers to the handheld stamping machines once made by the Bates Numbering Machine Company and used to apply sequential numbers or alphanumerical markings. (Bates is actually a registered trade mark of General Binding Corporation.)
Bates numbering should be used to sequentially number pages of PDF files that are produced as disclosures or in discovery. The Bates numbering in Acrobat 9 operates as a function of headers and footers but appears on the Advanced Menu by selecting Document Processing, then Bates Numbering. Multiple files can be selected for Bates numbering and then arranged in sequence so that the Bates numbers are applied in the desired order. Bates numbers can be applied on each page in six locations: in the left, center, or right position either across the top (header) or across the bottom (footer). Using a color other than black makes the numbers stand out when reviewed on-screen or if the documents are printed in color (if printed with a black-and-white printer, the color will translate to black).
As you know or might imagine, litigation documents can come from a wide variety of sources, so you should take time to consider the importance of the alpha-portion of the Bates number. Documents produced by a party can be alpha-labeled with letters that identify the party. Likewise, those from non-party witnesses and experts can be alpha-marked to correspond to the source.
Bates numbers should be applied to the clean set of documents (the ones you saved in …\DocsClean) and saved with a different file name. Using the name of the Bates number range of the pages in the file works well (e.g., ABA000001-002010). Store the Bates-numbered files in a separate folder (e.g., …\DocsNumbered).
Redaction. This may or may not be part of your litigation document workflow. Information that cannot or should not be made public or seen by the opposing party must be redacted in documents that have to be produced. Personal identifiers in protected health information, Social Security Numbers, financial information, and the like must be protected from disclosure in various circumstances.
The Redaction function in Acrobat permits the marking and removal of both text and any portion of image-only PDF files. Words, phrases, or any string of characters can be searched for and automatically marked for redaction when working with image-on-text files. The redaction process, generally speaking, involves two steps: (1) marking for redaction and (2) applying redaction. Files can be saved between these two steps; this allows one person to mark the file and someone else to check the markings before applying redaction.
Incoming digital information. Increasingly, information comes to lawyers already in digital format. Think of the spreadsheet files, digital photographs, and electronic mail messages that clients and others provide. This information can go through a similar workflow—including bookmarking, Bates numbering, and redaction—except it requires no scanning, optimization, or file-size reduction. And, because it is converted to PDF from the native format, the exact text will be part of the PDF file. Accordingly, OCR will not need to be performed (indeed, cannot be performed). Converting digital files to PDF can be as simple as dragging the file from Windows Explorer onto the open Acrobat application. Alternatively, you can open the file in the native application and “print” it to PDF by selecting Adobe PDF from the printer list.
Reviewing and analyzing the information in PDF files. Now you have all the litigation documents saved as PDF files. This will likely include disclosed documents, documents produced through discovery, discovery responses, and deposition transcripts. As you review the information in these files, first save a copy in a new folder (e.g., …\DocsWork). Do this to lower the risk of sending opposing counsel a set of documents that contain your review comments.
Highlighting in files with a text layer. Text can be highlighted (using the Highlighter tool) within files that were produced by printing to PDF and files produced by scanning that have been OCR’d. Each separate stroke of the Highlighter tool creates an independent “comment.” The Highlighter can be enabled to copy the text of the highlighted material into the comment (find this option under Edit > Preferences—Commenting). Forget creating “deposition summaries.” As you review the transcript and highlight important text, each highlighted segment will be copied into a separate comment that will be displayed in the Comments panel (click on the Comment icon in the lower left of the application window to display the Comments panel). Later, or in court, you can look at the comments and click on any one to go to that point in the transcript.
Highlighting in files without a text layer. PDF files created by scanning without OCR do not have a text layer. Handwritten information cannot be recognized as text (OCR’d), but you can still “highlight” areas in image-only files. Use the Rectangle tool to draw a box around the desired area. Now, right-click the box and select Properties. In the Properties window, select an outline and fill color, then set the Opacity to around 35 percent (experiment to see what looks best on your screen and what looks good when projected). Check the box in the bottom of the Properties window to Make Properties Default. Now every time you draw a rectangle it will be translucent and the color you chose.
Sticky notes. These are particularly useful in PDF files that were created by scanning but were not OCR’d. Use the Sticky Note tool to add as many notes to a file as you like. Each note will appear in the Comment panel (click on the Comment icon in the lower left of the application to display the Comments panel). Text in notes can be found using the Search function.
The Role of Acrobat at Trial
Perhaps the best reason for using Acrobat in the courtroom comes from the familiarity you have from using it daily in your office. Although it may not be as slick as specialized trial presentation applications, Acrobat works well in the courtroom. Use it to display information, including exhibits that have stipulated into evidence, during opening statements. During the course of the trial it works quite well for displaying exhibits that have been admitted. In closing argument, use Acrobat to show the jury the important exhibits, highlighting and zooming in on the key parts.
Exhibit notebook. As you identify the documents that will be exhibits at trial, begin saving copies in an appropriately named folder (e.g., …\Trial\Exhibits). When you know the exhibit order that you want to establish, begin renaming the individual files with something like “Ex 1” or “Ex A,” retaining (at least for now) the remainder of the existing file name. When the exhibit files have been renamed, use the Combine Files command to “merge” them into a single PDF (select the option to use file names for bookmarks). Because you renamed the files, they should appear in the correct order (use leading zeros when naming the exhibit files). Save the combined file as your exhibits. It will have bookmarks arranged in the appropriate order.
Exhibit labels. As with most things in Acrobat, there are various ways to create exhibit labels. One method involves using the Text Box tool. Go to your first exhibit and create a text box. Include the information required by the court such as case number and a party identifier (e.g., 2009CV100-Defendant’s Exhibit). Use the text box Properties tool to select a border color (black) and a background color (e.g., yellow), align the text in the box (centered), choose a font size, and so on. After you have created the first exhibit label, click on the border of the box to select it, then copy it (Control + C or Edit > Copy). Now, click on the bookmark for the next exhibit, click on the page, paste (Control + V or Edit > Paste) the exhibit label (text box), and drag it to the desired location. Double-click inside the text box and change the exhibit identifier (say, from 1 to 2, or A to B). Click the bookmark for the next exhibit, then the displayed page, paste and position the text box, then change the exhibit letter or number. Repeat until finished. You should be able to label 100 exhibits in less than 15 minutes. As an alternative to using the Text Box tool to create exhibit labels, try the exhibit stamps available from Rick Borstein’s blog at http://blogs.adobe.com/acrolaw/2009/09/try_these_two-line_dynamic_exhib.html.
Displaying exhibits. If an exhibit has not been previously admitted into evidence by stipulation or motion and ruling, then show the witness a paper copy. Lay an appropriate foundation and have the exhibit admitted into evidence. Once admitted, display the exhibit by clicking on the appropriate bookmark in your exhibit notebook. You may find it helpful to insert a blank page at the front of the exhibit notebook so that you have a “neutral” parking place. You can also insert a blank page in front of exhibits that have not been admitted by stipulation to reduce the chance of accidental display.
ConclusionTo succeed at trial you must first extract simple concepts from complex sources. Convert those sources to PDF and use Acrobat as your litigation application of choice. From initial case analysis through discovery and on to trial, Acrobat can be the tool for organizing, reviewing, analyzing, and presenting information.
David L. Masters practices law in Montrose, Colorado, and may be reached at firstname.lastname@example.org.