Part One of this blog post was focused on helping witnesses. (You can read it here.) However, this new piece is all about the lawyers. If you haven’t had your first Zoom depo yet, it’s likely coming. The wave began with COVID-19, but the cost and calendaring benefits mean video conference depos are here to stay. Beware… Zoom depos can completely throw you off your game. Why?
Here are 6 skills that you (the lawyer) might want to consider before your next Zoom Depo… 1. Silence is NOT golden in video conference depositions. An old psychological trick for taking deposition testimony is to go silent and allow the witness to fill the vacuum. That does NOT work well in Zoom depos because the witness is sitting in a room (possibly alone… possibly their home) many miles away. Why is it different? The pressure to fill silent pauses with words is a socially induced anxiety that is tied to in-person conversations. Three people sitting in a room with no one talking is awkward after 4 to 6 seconds. It is most awkward for the person who is supposed to be talking (the witness). Video conference testimony removes much of that pressure. We are all accustomed to long silences in Zoom meetings due to technical issues or the desire not to speak over one another. Silence will actually allow the witness valuable time to formulate well-crafted responses (rather than feeling pressure to fill the vacuum). 2. The easy stuff (i.e. handing an exhibit to a witness) just got hard. You are not going to be able to slide a piece of paper across the table. How are you going to share documents? How are they going to view them? What will your screen look like when you are questioning them about the document? Will you still be able to see the witness? I suggest you consider two monitors on an extended desktop… one for screen sharing and one for video conference boxes and privileged documents. REMEMBER TO TEST THIS SYSTEM AHEAD OF TIME! You don’t want to share the wrong screen and have something confidential broadcasting to the witness and the other side. Where is the transcription coming from? It’s typically best to have the person in the room with the witness, but this is a Zoom depo, so the rules of the game have changed. Planning and testing are vital, but ALSO have a backup plan if the tech fails. Those protecting the witness will want to continue the deposition on the phone. Those doing the questioning will want to reschedule for more video time. It might be best to lock that down before you are staring at a frozen screen. 3. Speak clearly, loudly and early… or you might lose your chance. If you want make objections to protect your witness, you need to do it quickly and clearly. It might be annoying to opposing counsel, but speaking over each other is a completely different animal in video conference depos. Some systems may mute out other voices when one person is speaking. Or, you may be unlucky enough to object when you have a weak connection. In the case of Zoom trial testimony, understand that controlling the witness is going to be MUCH more difficult. For cross-examination, this means carefully planned questions that elicit carefully planned (and short) answers. For direct, be ready to use visual signals (like waving a hand) along with the verbal objection to mark when you are objecting. Most importantly… don’t give up. If no one responds because you are muted by the system or in a moment of video glitch… keep trying. Some people will feel a psychological desire to just accept the missed opportunity and move on since the witness has started answering, but you must fight that impulse and get the objection in. 4. Don’t skimp on your internet package. The majority of residential internet grids are being pushed to the max these days. The bigger your hose… the more water comes in and out. It’s worth paying for an upgrade to your internet speed AND your Wi-Fi router (aka, the faucet). What you see is controlled by your download speed. What you broadcast and send is your upload. Downloads are MUCH faster because most of us would only upload small packages. Now, all your neighbors are sending massive HD video (Facetime, Zoom, Duo, GoToMeeting, etc.) up the hose. The system was not originally designed for that. Also remember that bandwidth is a shared commodity within your system by every other device using the same Wi-Fi signal. If you are broadcasting from home and have TVs/phones/tablets showing 4k Netflix movies to your kids in other rooms, expect that to eat up bandwidth. Zoom depo lag times are real. Worse still, an unethical witness could utilize a choppy connection to avoid answering questions or kill your flow (even if the question wasn’t that choppy). All of this suggests that it’s worth spending a little extra to get that fast internet package and Wi-Fi router. You can go to Ookla to test your current speed. 5. Pressure is now MUCH MORE about pace… be prepared. Witnesses’ sympathetic nervous systems (fight or flight response) will engage to varying degrees in any kind of testimony. It’s a stress response that we all regularly engage when we are anxious. However, it is much stronger in face-to-face encounters (rather than Zoom calls). This is important because the sympathetic nervous system is the top reason that witnesses have difficulty hiding the truth. This biological/psychological stress unmasks deception cues and makes lying/evading much more difficult. Be aware that you will have lost a lot of this questioning advantage in a video conference depo or testimony. Thus, you will need to work harder to re-create that pressure through carefully planned questions that can be unleashed in rapid fire when the time is right. This is not to suggest you be a robot who reads a phone book of scripted questions in quick succession. I’m suggesting you have the three KNOWS: 1) Know your case; 2) Know what you need to get; 3) Know the pathways to get it (especially groups of short questions that can be deployed rapidly). If you have these in your brain and in an outline, you can re-create some of the pressure that Zoom depos have taken away. 6. Consider opening with shock and awe. If a witness is planning on evading or being untruthful, they will be most vulnerable at a few key points in the deposition: 1) When they are tired; 2) When they are stressed due to a series of difficult questions; and 3) At the very beginning. Wait? At the very beginning? Yep. Their emotions will likely be running high and they will be anxious. Here are a few possible reasons:
As an aside, I would also warn you to keep emotions more in-check. You are ALSO on camera and being videotaped. In Hollywood, passionate exchanges are carefully blocked and scripted. In Zoom depos, you are off-the-cuff with questionable lighting and camera. Ramping up emotions in your video conference risks making you look a little nutty. BONUS TIP: Don’t take notes. Multitasking is a myth. Our brains can’t split attention, it just goes back and forth really fast… resulting in poorer performance in both tasks. The deposition is all on video that you can re-watch. Taking notes forces your brain to leave the examination to go to your notes page and then return to the examination. You need to be listening and thinking… notes can be done later. You can learn about our CYBER WITNESS PREP that is conducted via webcam (rather than in-person) HERE. WHO IS THE AUTHOR? Matt McCusker is the founder of Convince, LLC and LitPredict. He is an internationally known Litigation Consultant with a strong history of success utilizing unique cognitive psychology techniques for prepping witnesses and developing case strategy. Matt has served as a source for many media outlets (Wall Street Journal, CNN, LA Times, etc.) and taught Witness Prep for CLEs and professional conferences nationwide (DRI, ABA, law schools, etc.).
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As a Litigation Consultant, I’ve been prepping witnesses across the country for many years. I’ve spent countless hours analyzing witness behavior and psychology in CONTROLLED deposition and trial environments… then came COVID-19. In 2020, I’ve had to up my game and think deeply about how witness prep must change for people testifying from their home or office. Zoom depos are becoming much more common and they are likely here to stay. You can learn about our CYBER WITNESS PREP that is conducted via webcam (rather than in-person) HERE. A Camera is a Camera, What's the Difference? In-person video depositions have been around for many years, but webcam depositions (having the witness at home or in their office) have only recently seen a surge in popularity due to COVID-19. Given the cost and time benefits, don’t expect Zoom depos to disappear with the virus. Crucially, webcam depositions are being recorded and may be played for your trier of fact. A huge portion of human communication exists in the visual elements of the speaker. Thus, you really need witnesses to perform effectively, look good and present as visually credible. While both of these deposition-styles involve cameras, the witness experience (and many potential pitfalls) are worlds apart. IN-PERSON VIDEO DEPOSITIONS (THE GOOD)
WEBCAM DEPOSITIONS (THE BAD)
Here are 6 skills (which don’t require buying anything) to help your witness at the next Zoom Depo… 1. Look Me in the Eye Appearance matters when determining credibility. Up-angle shots (camera below your eye line) are very unflattering. It forces a double-chin and highlights our nose hairs. If using a detached webcam, place it ON CENTER at or slightly above your seated eye level. If using a laptop, put some books under it to raise the camera… the witness won’t be typing while testifying anyway. Additionally, place the camera so a person’s head and shoulders are framed. Many witnesses fidget, so it’s not a bad idea to leave their hands off-camera. 2. Lighting Matters Scary movies are effective because they create a feeling of uncertainty with dark lighting. Don’t let your depo become a horror show. More lighting is better. In a perfect world, you would have 3 lights: left, right and down light (desk lamps and ceiling fixtures will work). However, simply getting lots of light should help the witness avoid looking evil on camera. Also, avoid any bright lighting from behind… like the sun. Windows with direct sunlight near the witness (especially from behind) can cast a not-so-angelic hue across the screen. Speaking of visuals... avoid any bright colors or patterns. If you have ever done a TV appearance, they may warn you against stripes or complex patterns because cameras can have difficulty with them and it looks almost animated. 3. Embrace the Silence Most people are uncomfortable with silence in social settings. However, Zoom depos can be filled with bouts of silence due to technical reasons (internet lag) and strategic design (opposing counsel lag). Witnesses must be taught to embrace silence and not feel the need to fill the vacuum. This is challenging when you are the star of the show. Psychological research has shown that it is much easier to REPLACE a behavior ("Do this."), rather than DELETE a behavior ("Don't do that!"). One option is to help witnesses understand that silence is their shield and their sword.
4. Eliminate Background Distractions (Auditory AND Visual) This is a deposition, not a YouTube channel. Boring is better. A plain wall (maybe a non-descript painting or a plant) is all you want. Here are a few things to avoid:
5. Don't Forget Foreground Distractions We forget that every camera shot also has a foreground. This area of the shot can even be MORE distracting.
6. Practice Objections with Them One of the hardest things for witnesses to remember is to NOT get into conversation mode. It’s question… answer… question… answer... question... answer. Zoom calls can sometimes make it more difficult for attorneys to jump in and make objections because people may talk over one another. We all know, if the witness has started an answer, you can't stop them... even if your objection was muted out. The best method of getting witnesses ready for objections is to practice them. They need to see what it feels like to have a question… take a beat… hear an objection… wait for instruction… give an answer. It's not natural. FINAL NOTE on Part Two Attorneys also have to adjust the age of Zoom depos. Just ask the lawyer who recently made news doing a deposition with no pants. Further, those attorneys who pursue a more aggressive style in deposition testimony may find their pressure less effective from a thousand miles away while trapped in a little box on a screen. There are methods to psychologically counteract the Zoom effect for attorneys, but I will save those nuggets of wisdom for PART TWO. You can learn about our CYBER WITNESS PREP that is conducted via webcam (rather than in-person) HERE. WHO IS THE AUTHOR? Matt McCusker is the founder of Convince, LLC and LitPredict. He is an internationally known Litigation Consultant with a strong history of success utilizing unique cognitive psychology techniques for prepping witnesses and developing case strategy. Matt has served as a source for many media outlets (Wall Street Journal, CNN, LA Times, etc.) and taught Witness Prep for CLEs and professional conferences nationwide (DRI, ABA, law schools, etc.).
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Matt McCusker
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