Attorneys: 7 Best Practices for Marking Exhibits in a Deposition

Marking Exhibits in DepositionsExhibits, of course, are very commonplace in depositions and arbitrations.  At Stevens-Koenig, we see them every day on almost every deposition.  They come to us in every shape and size and, unfortunately, with a variety of numbering systems.  Though we’d never try to tell you there’s a specific way of marking exhibits that is the one and only way, but there is a way to mark them so they’re easily identifiable and help facilitate a smooth flow when using the documents in upcoming depositions in the same case.

Here are some suggestions for marking exhibits in a deposition:

1.  Number Exhibits Consecutively

When you begin to use a document for questioning, you, of course, will want to assign a numbered or lettered identification to each exhibit.  The most common method of identification is a simple numbering system beginning with the very first deposition taken in a case.  The first exhibit identified on the record should be labeled as Exhibit Number 1. Each additional exhibit following that should be numbered consecutively as they are identified during the proceeding.

We sometimes see numbers used to identify Plaintiff’s exhibits and letters used to identify exhibits introduced by the defense.  However, the most common way to identify exhibits is consecutive numbering throughout the case no matter which side introduces the document.  Our court reporters can provide a continuing exhibit notebook at each consecutive deposition either in hard copy or on an iPad.  By marking consecutively, the same exhibits can be referenced in a number of depositions without being remarked, recopied and reidentified.  This saves money in duplicating the same exhibit as well as saving paper (trees) for our environment.  The notebooks are updated following each deposition and delivered to the following deposition for continued reference.

2.  Allow Your Court Reporter Time to Mark Each Exhibit

When you’re ready to begin asking questions regarding a particular document, ask the court reporter to mark the exhibit before you ask any questions referring to the exhibit.  But when you hand the exhibit to the court reporter, don’t continue speaking until the reporter is finished marking the exhibit and has handed it back to you. Many reporters will not only affix a sticker to the document with the proper numbering identification, they will also fill in the date, name of the deponent and add their initials.  If you continue speaking during the time when the court reporter is still filing out the exhibit label, he or she will need to stop marking and return to their steno machine to continue writing what you’re saying.  If you can wait just a few seconds, you’ll allow the reporter time to appropriately fill out the exhibit sticker.

3. Identify Each Exhibit Properly for the Record

When you begin asking questions about the exhibit, state the number of the exhibit and a brief description, including any date information.  This will allow the court reporter to properly identify the document in the index that will be prepared with the transcript.  It also allows you to refer to the exhibit from that point forward by just using the number assigned to it.

4.  Ask Your Court Reporter for your Transcript to Include Exhibit Linking

All of our transcripts include an index of the exhibits which lists the exhibit number, a brief description including any Bates’ identification, and the page on which the document is referenced.  This allows you to easily review which exhibits have been identified during the deposition by looking at that one page of the transcript.  The exhibits will also be linked throughout the transcript, meaning when you see the exhibit number within the file, it will be highlighted and you can simply click on the highlighting for the document to be displayed for you.  You can use a split screen to see both the text and the document at the same time.  An index is easiest to create and follow if the exhibits have all been numbered consecutively during the deposition, as listed above.  Our practice is to create an exhibit index soon after the proceeding has concluded and furnish this index and a set of exhibits to you electronically for your continued use during trial preparation.  This is a service we have found to be valuable to our clients.

5.  Do Not Mark Exhibits Before the Proceeding Begins

There are many times when we walk into the deposition room and see a stack of exhibits already marked in numerical order.  Some attorneys like to pre-number exhibits while they’re preparing for the deposition in anticipation of the questions they intend to ask.  For clarity of the record, we don’t recommend pre-numbering the exhibits.  Most often the questioning runs methodically as per your plans, but if the deponent’s answer turns in another direction, a new exhibit may be required at that moment, one that is much further down in the numbering sequence.  This results in the numbering system no longer being consecutive and no longer tracking along with the deposition questions and answers.  The index, of course, is prepared in numerical order but will now have out-of-sequence page numbers due to the random-order references.  This can cause confusion for the participants in the deposition and also for anyone reviewing the transcript who was not in attendance at the deposition.

If you ask questions about Exhibits 1, 2, 3, and 4, then skip to Exhibits 22 and 23, participants and readers will be confused when they anticipated numbering in an orderly fashion which tracks with the questions.  Readers may feel they have missed some testimony or are missing pages to the transcript when they fail to sees Exhibit 5 through 21, and instead see questions and answers about Exhibit 22.    Additionally, there may be times when you decide during a deposition that a certain exhibit is no longer necessary to use.  If you’ve pre-numbered the exhibits, you will now have a gap in your numbering sequence which could further confuse a reader.  We often receive phone calls from paralegals and legal assistants in cases such as this asking us for the missing exhibit(s). Obviously we can’t produce the document if it was never properly introduced and was never in our possession.  Avoid this type of confusion by waiting until the proceeding is underway and have your reporter mark the numbers on your exhibits as they are identified. This will keep them in order and will allow us to create an index that is consecutive and logical to the reader.

6.  Reading from Exhibits

When reading from an exhibit, it’s typical to zoom through it at the speed of light because everyone in the room is very familiar with what the document is about.  However, the reporter still has the job of writing word for word everything that is said and/or read.  When you rush through, it makes his or her job very difficult, if not impossible.  Read at your regular questioning rate and read the document exactly as the words are written on the page.  This allows the reporter to accurately and completely quote that material in the transcript.

7. Do Not Take Exhibits With You When Leaving

Without a stipulation by all counsel involved to the contrary, the court reporter will take possession of all marked exhibits at the end of the deposition.  We’ll make copies of the exhibits and they will be attached to each deposition transcript that is prepared.  At the end of the deposition, the court reporter will account for each exhibit to make sure he or she has possession of them all.

When you’re questioning a witness on the record, your goal is to elicit truthful answers to your questions that will appear in a transcript. That process will often include the use of exhibits.  By using these best practices while marking exhibits, you’ll be creating a record that is accurate, complete, and easy to understand by future readers of the transcript.

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