Ernest Svenson was born in New Orleans, but spent four years attending high school in the Republic of Panama. He returned to New Orleans in 1977 to attend Tulane University, where he received a B.A. in Philosophy in 1980. He entered Loyola Law School in 1982, and was graduated cum laude. He was a teaching assistant for several professors, a member of the National Moot Court team, a member of the Law Review editorial board, as well as participant in the Volunteer Income Tax Assistance program. After graduation, Ernest spent two years clerking for the Honorable Adrian G. Duplantier in the United States District Court for the Eastern District of Louisiana, where he learned the intricacies of federal procedure. He also learned the proper method of preparing blackened redfish.
Over the years, Ernest has been involved in a number of bar activities as well as law alumni matters. From 1990 to 1994 he was on the editorial board of the ABA Section of Litigation’s publication entitled “Litigation News.” He has been an adjunct professor at Loyola Law School and participated with the school’s moot court program. In 1998 he was recipient of the Loyola Moot Court Distinguished Alumni Award. In 1999, he became president of the St. Thomas More Inn of Court.
Since entering the practice of law in 1987 Ernest has been involved in a wide variety of commercial litigation. He has handled disputes involving securities, banking, and insurance related matters in both state and federal court, although his practice has mostly been concentrated in federal court. Lately, his practice has been focused on franchise litigation, intellectual property matters and products liability cases. He is a member of all o f the federal district courts in Louisiana, the United States Fifth Circuit, and the United States Supreme Court. He speaks and writes fluent Spanish, and spends far too much time with his weblog.

Published June 17, 2002

Introduction

Have you ever heard of the term “PDF file”? Maybe you haven’t. But it’s likely, if you use the Internet at all, that you have viewed a PDF file and may even have had one sent to you as an E-mail attachment. For many people, the idea of a PDF file is confusing. It shouldn’t be; basically a PDF file is just page with text, or images that you can open up, view, or print just like any other document. What you can’t do is change the document very easily. And that is the point of PDF files: to make documents available to people who want to view them in the same format (i.e., with the same layout and page breaks). And most importantly, PDF files are cross-platform files, which means that if you create one on a computer that uses the Windows operating system you can send it to someone who uses a Macintosh or even to someone who uses UNIX.

So, basically, PDF files are files that are fixed text and images with formatting that you want to preserve so that anyone can see the document exactly the way that you created it on your computer. PDF files can be shared with anyone who has a computer, no matter what kind of computer they have. All you need to view the file, and to print its contents, is the free reader that can be downloaded from Adobe. The free reader is not the same as the full-fledged version, which is called Adobe Acrobat 5.0 (it retails for about $240, but you can get it from mail order stores for just over $200). If you want to create PDF files or to annotate them with notes (which will be discussed below) then you will want the full-featured version.

Why Should Lawyers Use PDF Files?

Well, for basically the reasons given above. First, the files aren’t alterable and they retain the original formatting. And, second, they can be viewed on any computer. But let’s talk about concrete examples that come up in the practice of law.

Transactional lawyers often work with other lawyers by sending drafts of their work to the other side and then exchanging proposed revisions. Often this exchange process involves one side sending the other side word processing documents, which they open and then revise and return to the document’s original author. And that’s fine if you need to have dynamic interchange and don’t mind giving your counterpart a text file that they can easily edit. Sometimes, though, you don’t want to do that.

For example, I have heard that sometimes the following occurs. Fred creates a document and sends it to Evil Eve and she not only makes changes that she reports to Fred, but then also makes other changes that she doesn’t tell him about. Of course, Fred could do a document compare and discover this, but he doesn’t want to. He would rather control all changes and let Evil Eve just propose the changes that she wants. How can he do this? Easy. Just send her a PDF file and let her tell him over the phone what changes she wants to make. And remember because the PDF file looks exactly like the file that Fred has the page references will correspond exactly (how to create PDFs from a word processing file is covered below).

Another thing to consider is that text files (i.e. word processing documents) often contain hidden information about changes that have been made to the document during its creation stage. So let’s say that Fred made some changes where he put in a provision that his client didn’t like and had him take out. If he sends the document to Eve she might (if she is computer-savvy) be able to look at the core document structure and see all of the changes that Fred had made to the document before he sent it to her.

So those are all things for transactional lawyers to consider, but what about litigators?

Why Should Litigators Use PDF Files?

Litigators can probably benefit from PDF files more than anyone. But not because of documents that they create. Litigators have to deal with the documents that were created by the parties to a lawsuit. Usually, if the documents are sufficiently voluminous the lawyers will have the documents scanned. And often, they will have them scanned to be used in a program such as Summation (actually there are a host of products that Summation provides, which for ease of discussion I will refer to simply by the name Summation). Summation is usually used by paralegals or other legal assistants. Some lawyers use Summation, but for those lawyers who think that computers are tools to be used by other people Summation is probably the best way to deal with documents.

For lawyers who don’t mind learning a new program, and who believe that computers are tools that they can use to help their client, there is a better way than Summation. And it is PDF’s. If you are even the slightest bit inclined to use computers in your practice then it’s the way, the truth, and the light.

First of all, I’m not saying you shouldn’t scan case documents into Summation (which uses the TIFF file format, a competing format to the PDF format). If you can, and you can afford it then you should. If your firm already has Summation then use it, especially for the big case with lots of documents (i.e., more than five boxes of paper). But consider using Acrobat too. Or if your case isn’t big enough to justify using Summation, then PDF is the only alternative. And by the way if you think the price of Acrobat sounds expensive then check out the price on Summation, which is closer to $1,500.

The best way to understand the power of Acrobat is to actually use it, and the next best way is to discuss an example of how it would be
used in a real life situation.

An Example of Acrobat Used By A Trial Lawyer

So let’s say you have a small case with only 1,000 pages of documents that your client has given you to produce. If you have a good scanner (i.e., a Fujitsu 15C will cost under $1,000, sometimes as low as $800) then you can scan the 1000 pages in about an hour. The Acrobat program will let you scan the documents into the PDF format, and will create one big computer file with 1000 pages. Then if you spring for the plug-in that goes with Acrobat called StampPdf, which costs about $179, you can electronically bates-stamp the documents in about 3 minutes.

Okay, it’s true that if you didn’t have a scanner then you will have invested fair amount of money in hardware and software. But that will pay for itself quickly in time-savings. Let’s examine how.

Well, you’ve invested about an hour scanning and bates-stamping the documents. I’m guessing that bates-stamping is something that it would have taken a paralegal at least a couple of hours to do. So you’re ahead there. Plus your client didn’t have to pay for the paralegal time. Now it’s time to review the documents to make sure that you don’t have any privileged documents. This is where Acrobat is really going to blow you away.

Reviewing Documents That You Are Producing – It’s Now Fun And Easy

Instead of going through paper copies you are going to open up that 1000 page PDF file that you created and bates-stamped. You are going to review each page by hitting the “Next Page” button on your computer keyboard. And believe me when I tell you that you can go through the documents in a hurry this way. The only time you are going to stop is if you see a document that looks like it might matter. If you do you hit “CTRL + B” and type a quick note to bookmark the page so you can come back to it later. Right now, you’re just looking for pages that might matter. Going through 1000 pages this way will take between 2 and 3 hours, maybe a little more if you have a lot of good documents.

Then after you go through the documents quickly (of after your associate goes it) you are ready to visit each of the pages that have been bookmarked. At this point you are going to want to make notes that will appear on the page as an “annotation” so that whenever you visit the page your notes will be there for you to read. See below:

On the left you’ll note the yellow box. That represents a note, which if you click on it will expand to reveal your comments in a little box that looks like the image on the right. This is much easier to visualize when you are working with the documents. But the key point is that you can easily create annotated comments. If you are working on the case with other people, and they have the full version of Acrobat then they can add comments too. The value of this is that the comments are searchable by author, so if you want to see everything that they had to say about the document you can search just for their comments.

So now you’ve got the basic concept, which is that you can keep the underlying text intact and make annotations on the document that represent your comments. But happens if you later want to print the document out and you don’t want the comments? You can tell the printer to print without comments and the page will come out as clean as it was before you made your notes. So after reviewing the documents, you print them out (without the comments) and send them to your opponent.

Now You’re At A Deposition And Your Opponent Is Using The Documents You Produced

In the old days you’d be sitting at a deposition when your opponent pulls out one of the documents that you produced and wants to use it with the witness. He’d reference the document by describing the document’s author or the date or something like that. Now, you are sitting at the deposition with your laptop and you have the Acrobat file with your case documents up on the screen. When he starts pulling a document, you simply ask what the bates-number is. He tells you it is 00000505, and so you hit the shortcut on Acrobat that directs you to page 505 and you’re at the document in less time than it took for him to hand it to you. And, if that document was one that you had made notes for, then those notes would be right there. And if the deponent makes a comment about that document that you need to capture then you can make notes to add to the document right then and there.

Or let’s say that you had received documents from your opponent and scanned those as a PDF file and you were the one taking a deposition. You could have tagged and made notes on the documents that you wanted to go through during the deposition. And all you would have to do is skip from place to place where the documents that you wanted to discuss were. Again, you could make notes right then and there if the deponent said something about the document that was important. In short, the commenting feature of Acrobat is a powerful tool that means that you can truly preserve your thoughts about the papers that relate to your case.

Where Do PDF Files Come From Mommy?

We’ve talked a lot about PDF files, but not how they are created. So how do you make a document into a PDF document? Scanning is by one way to make PDF files. But, as noted in the beginning of this article you can make text based documents into PDFs. The latest versions of Word have the ability to do this, even without the full version of Acrobat. The full version of Acrobat, however, lets you take any print output from any program and make it into a PDF. Here’s how it works. When you install Acrobat (the full-version) it creates, what I will call, a “fake” printer. The fake printer is called “Acrobat Distiller.” See example below:

So when you want to make a PDF you just choose “Acrobat Distiller” as your printer, give the file a name and tell the computer where you want to have the file sent when it is created (i.e., the Desktop, or the “My Documents” folder). Once you have created a group of PDF files it is easy to merge them together, if you need to, or to pull out pages and create new files that contain only selected pages from a larger PDF document. For more information you can consult this discussion from the US Courts, which use the PACER system to display image documents online (increasingly the federal courts are using the PDF format).

I should mention as well that PDF files are also useful when you are doing legal research because, of course, cases are simply documents that you aren’t going to alter. You just want to view them and possibly to make notes. Westlaw and LEXIS will send you cases in PDF format if you want. For years people would take cases from Westlaw or LEXIS in one of the two popular word processing formats. I can’t imagine why you would do that now that you can get the documents in PDF format. Cases in PDF format can be stacked together and bookma
rked, or annotated with notes, or even highlighted electronically. These annotations are readily accessible and give you quick access to the pages that you have marked with notes or highlighting.

TIFF Format vs. PDF Format

I should briefly mention that you will hear comparisons between TIFF files and PDF files. These are both “image” file formats. Summation, as I mentioned, uses TIFF files, as do many commercial scanning programs used by service bureaus. So is the difference between these formats a big deal? Short answer: no. In fact, it’s fair to analogize the connection between TIFF and PDF as similar to Word and Wordperfect files. You will hear people tell you that there are important reasons to keep your documents in one format over the other. Don’t listen to them. TIFF files can be easily converted into PDF files, and vice-versa. Interestingly, you will find documents from consultants who promote TIFF files being stored in a PDF format, which is as telling as it is ironic. (see example).

Overview

PDF files are powerful tools, and there are many more examples that could be given to illustrate how simpler it is to deal with documents once they have been made into PDF files. Scanning is but one way to make PDF files. As noted in the beginning of the article you can make text based documents into PDFs very easily. The latest versions of Word have the ability to do this, even without the full version of Acrobat. But if you have the full version you can take any “print output” and make it into a PDF.

As described, the comments feature is powerful and allows you to save your thoughts and ideas about the importance of documents in your cases in a way that is truly useful. If you are like me you probably have a folder in your case files that is labeled “Attorney Notes.” The problem is that we rarely consult that folder. Or certainly if that folder contains our notes about key documents it is entirely possible that we would be looking at a document that we had made notes for, but then totally forgot about. With Acrobat your notes are semi-permanently superimposed on the document itself. The first thing you will see when you open a page upon which you have made comments are the comments themselves. In other words, your comments are now truly useful and always at hand when you need them. And that, as Martha Stewart would say, is a good thing.