As a Litigation Consultant, I’ve been prepping witnesses across the country for many years. I’ve spent countless hours analyzing witness behavior 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.
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 tricks (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.
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.
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 another blog.
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.).