Part Deux: Top 6 Zoom Depo skills for Attorneys, not Witnesses

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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?

• You have lost all the social pressures of in-person examination (i.e. Hedging the truth is much easier when the examiner is NOT in the room).
• Body language and quiet verbal cues are much harder to pick up on and more readily hidden.
• Your objections may be muted by the video conference software because the other attorney is asking a question or connection issues.
• A brief audio/video glitch can completely change testimony (i.e. Omitting the word “not” after the word “did”).
• It’s tough to keep up questioning intensity on a witness from a tiny box on a laptop screen that can be switched off at any moment.  The witness will likely not do this but having the ability will substantially shift the psychological power dynamic.

So, Zoom depos will require some serious tweaking of your deposition playbook.

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:

• They are very nervous about depo.
• They are worried that the computer or mic or software or anything tech will fail.
• They are distracted while thinking about the answers and evasions they plan to give.
• They have likely been told that the depo will take time to heat up and the opening part will be boilerplate.  They may have even practiced this slow rise in witness preparation. 

Opening with shock and awe are not what witnesses are expecting. This doesn’t mean that you should start with the most vital questions of the case.  However, it’s worthwhile to take an opening swing on a few key issues.  If it doesn’t work, you can always circle back to the subject.

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.).