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Litigating with Acrobat Part 2: Acrobat Inside the Litigation Office
May 2006
In our last issue, I offered some thoughts about organizing your practice using electronic files stored in Acrobat format rather than traditional paper files. An electronic law office has many virtues. It’s easier to safeguard against loss and disaster, easier to share data, and much more economically efficient after a few months transition. However, if you are a litigator, then an Acrobat-based law practice can also make you more effective at preparing and trying a case.
For a long time, I foundered about searching for a single overall approach to litigating a case using Acrobat until I realized how futile that was. There is no clearly optimum manner to use Acrobat in litigation. An Acrobat-based litigation practice is so flexible that it can easily be whatever you need it to be - you can be as traditional or as avant garde as fits a particular situation and you can do this very quickly and easily. Here are some general tips and tricks that I found useful in for a litigation practice based upon Acrobat 7 Professional. In this article, I will discuss some preliminary aspects of setting up electronic case files and using Acrobat inside your office as part of a litigation practice.
Remember that an Acrobat-based filing system is very flexible.
There is no single best way to set up, or use, an electronic filing system that, like Acrobat, consists of many individual files.
Acrobat-based litigation case files are probably the optimum electronic imaging approach for routine cases with a relatively small number of documents.
Acrobat-based litigation files, when used with an indexed search program, CaseMap 6, or a document management system, work very well for medium-large cases with up to 100,000 documents. Beyond that point, you’ll need a high-end litigation support program like Summation or Concordance.
If you litigate in federal court, then you will need to file your pleadings electronically using Acrobat. Under those circumstances, it certainly makes sense to use Acrobat-based files for all documents in your federal cases, and at that point, it makes no sense to use a different type of filing system or litigation support system for state court cases.
Avoid spending a lot of time up front setting up an elaborate, highly subdivided filing system up front.
Not only will this time likely be wasted, but you may spend so much time looking in 15 different folders for a particular document that you will negate the efficiency advantages of an electronic file system. I’m speaking from experience on this one. Early on, I had a staff member get so carried away with creating such an exquisitely detailed filing system that nothing else got down and I never could find anything very quickly because there were too many possible choices for filing documents, increasingly the probability that a secretary would scan a document into a different folder than I would use first. Of course, using an indexing text search program or a document management program, whether the simple Organizer built into Acrobat 7 or something more complex, solves that problem but the lesson remains - keep your filing system structure as simple as possible, given the particular needs of different cases.
In a small firm that deals mostly with relatively small or routine cases, set up an umbrella directory for current cases, a separate subdirectory/folder for each current case, and then a few basic folders within each case subdirectory. I use Correspondence, Disclosures and Discovery, Investigation, Internal, Evidence, Pending, Payables and Pleading, but that basic case structure is merely a personal preference. Make further sub-folders as needed for a particular case. For example, I often make a further sub-folder for dispositive motions and copy all relevant files, exhibits, affidavits and other potentially applicable materials so that I can quickly find whatever I need when drafting dispositive pleadings.
Make all scanned documents text-searchable by OCRing them and then search for documents as needed with a good network-aware text search program such as Copernic Desktop Search. This is one of the best and fastest ways to find documents anywhere on your system. Copernic Desktop Search is free. Acrobat litigation files are much more useful when you can find desired documents based upon their internal content.
If you print a particular word processing, database, Excel, E-mail, HTML, etc. file to the Acrobat “printer,” then the document is already text-searchable and its file size is typically more compact. In such instances, simply print out any signature pages and then scan and substitute those signed pages.
Using the Acrobat printer function is a good way to get all pertinent case data and documents, including e-mail, spreadsheets, and notes typed in a word processor into a single universally readable file format. Thus, as an example, even if a case-related e-mail or spreadsheet resides only on your computer, printing it to Acrobat and storing the resultant PDF file in a network case folder obviates potential access and document management problems, not to mention the need for different people to have the same application programs on each of their computers. It’s also a good way to send client copies immediately and easily without worrying whether the client can read a particular computer file format.
Acrobat 7 Professional includes some nice collaboration features that work well for a dispersed litigation team, including improved document security, comments by multiple persons embedded within a document, version control, file synchronization, and the ability to directly e-mail a document. This is particularly useful as a means of working with remotely located expert witnesses.
Using Acrobat’s text recognition feature is very demanding on your computer.
If you or your staff use default settings and render a document text-searchable at the time that it is scanned, you will need a very fast computer or a lot of patience. I have upgraded every computer that routinely runs Acrobat’s text recognition feature, with each such computer running the fastest AMD dual core processor that I could afford at the time. I use the new dual core Opteron 165, 170 or 175 CPUs, which I overclock to run at their fastest stable speed. Faster CPU performance seems to matter here. Personally, I use computer systems built around very fast Western Digital Raptor hard disks and 64-bit AMD dual core Opteron processors that run at significantly over-clocked speeds. (Higher end DFI and MSI system boards seem to work best for overclocking these systems and the extra performance really is noticeable when working with Acrobat’s Text Recognition functions.)
Personally, I find it best to set up a batch program to run the Capture tool on many documents at once. If you have a spare computer, then you can run that batch process and walk away while it runs. Sometimes, you will be able to OCR an entire directory while, under other circumstances, you may only be able to OCR 20 to 40 documents in each iteration of the Capture batch process. By the way, using a batch process is an excellent way to make earlier, non-OCR files text-searchable.
CaseSoft’s CaseMap version 6 is one of the premier case data analysis programs and is tightly integrated with Acrobat.
CaseMap 6 includes several new tools that are highly useful with Acrobat litigation files, including optional Bates stamping, batch Acrobat file importing into CaseMap, and the ability to act essentially like a relatively automated document management program for Acrobat litigation files, in addition to its regular case analysis and organization functions. If you are using Acrobat as your litigation file system, then you should seriously consider using CaseSoft’s several products in tandem with Acrobat. You’ll need some way to make organized sense out of that mass of raw PDF documents.
Once you have CaseMap properly configured for a particular case, with people, documents, issues and links already defined in CaseMap, then imported Acrobat documents that have been OCR’d may be automatically categorized and properly filed in CaseMap. CaseMap 6 also has a very useful client intake procedure that speeds initially setting up a CaseMap litigation file. After initial setup, bulk import any PDF documents into CaseMap and it will begin categorizing them for this case.
Title your documents in a consistent and information fashion - e.g., Kashi to Opposing Counsel accepting $100K Settlement Offer. This may seem obvious but it is obviously violated often.
Hard disk space is cheap. File copies of any electronic documents that you will not change in the future in all directories in which someone might be likely to look.
Remember that one of the major efficiencies of Acrobat-based law practice is the ability to re-use whatever you have scanned.
For example, if your client brings in a bunch of documents during the initial consultation, then scan them on the spot as the client explains them to you. You can put explanatory notes and comments on each scanned document, reducing your need to take separate notes. Later, you can pull these same documents, and other later-developed materials such as photographs, into a single “binder” for discovery and disclosure purposes. It’s easy to review your document disclosure binder for privileged documents and delete them.
One of the easiest ways to set up a document disclosure binder so that documents are presented in the correct order is to set up a temporary folder for potentially disclosable documents, combine them all into a single temporary disclosure binder, and then review for privilege, noting each document that you decide to .
You can mutate and re-use this same document-inclusive document disclosure binder at later times as a quick way to prepare exhibits to motions, deposition exhibits, trial exhibits, cross-examination materials, and visuals for opening statements and closing arguments.
Use Acrobat 7 Pro’s drawing markup tools to prepare your demonstrative exhibits, particularly annotated photos and drawings. This often lends powerful clarity to a potentially complicated matter, even in preliminary pleadings. I recall preparing a complaint for trespass by artificial water runoff, using a number of digital photos with explanatory text boxes and arrows, with each photo labeled, keyed and related to specific parts of the property using an annotated satellite photo of the land. When my then-nine-year-old looked at the pictures and the annotations, I could see the light dawning as she said solemnly that she understood what the problem was. The case settled almost immediately after filing the complaint.
Be as visual as possible.
Don’t be sparing in your use of digital photography and video clips within pleadings, particularly summary judgment motions. We are now definitely living in a highly visual age. Grey text and long-winded testimony isn’t as effective as a few striking photos or drop-dead deposition video clips.
At this point, if a deposition is worth taking, it is worth taking as a videotaped deposition. The cost differential isn’t that high and a videotaped deposition, once it is digitized and the transcript text synchronized, is far more useful in pleadings and in court. If you need telling deposition testimony to make a point in a pleading, in opening or closing, in cross-examination or to present as direct testimony, it is far more powerful and far more useful as a video clip than as dry text. Over the past five or six years, I have almost always rued taking a text-only deposition - almost inevitably, something was said that would have been much more useful as video.
As a secondary aspect, consider altering your deposition style so that you will have more short “sound bites” that might make useful video clips at trial. I prefer short video clips on the order of 30 seconds to not more than two minutes.
Combine all related pleadings into a single sequential file. For example, if you are dealing with a summary judgment motion, then rather than storing all of the documents separately, which become more time-consuming and harder to finder, make a single summary judgment file, starting with the Motion, then appending the memo, affidavits, exhibits, and other supporting documents. When any opposition, Rule 56f motion, reply, orders, etc are filed, then append these documents as well, in consecutive order. At the conclusion, you will have a complete history of the entire motion in one file and in consecutive order.
The original copy of certain types of documents, particularly photographic and video files, should be stored unaltered and in their original format both for later ease of use in case you need to print clean copies without photographic compression distortions and also in case you need to authenticate the photographs. It’s handy to embed working copies of these sorts of files into Acrobat documents but you must save the originals in their original format as well. I didn’t do so in one case and that omission caused me a lot of grief.
Scan in discovery that the other side sends to you and then use Acrobat 7's typewriter tool to fill in the responses directly into the blanks under each discovery item. When I first showed this feature to my secretary, she found this feature to be a real time saver.
For heaven’s sake, remember that your electronic files are now your entire office.
Do a complete backup every night and take it off premises.
Don’t be so insistent upon scanning everything, right now, that you overload your office.
Set a date a few months in advance as the date when all new documents will be stored in Acrobat and work toward that goal with “all deliberative speed.” As time permits and cases may require, scan in older materials and older cases on an as-needed basis.
Buy David Master’s book The Lawyer's Guide to Adobe® Acrobat® from the ABA’s Law Practice Management Section. It contains a wealth of tips and techniques for using Acrobat in the law office.
Be sure that everyone who does not have a full copy of Acrobat 7 Standard or Professional is at least using Version 7.05 or higher of the free Acrobat Reader, which allows Reader users to also comment within documents that you in which you, as the document creator, may allow commenting.
The number of ways in which you can use Acrobat in the office end of your litigation practice is realistically limited only by your imagination and familiarity with the product. Be creative.
About the Author
Joe Kashi is an attorney and litigator living in Soldotna, Alaska, who is active in the Law Practice Management Section and a technology editor for Law Practice Today. He has written regularly on legal technology for the Law Practice Management Section, Law Office Computing magazine and other publications since 1990. He received his B.S. and M.S. degrees from MIT in 1973 and his J.D. from Georgetown University in 1976, and is admitted to practice in Alaska, Pennsylvania, the Ninth Circuit, and the U.S. Supreme Court.