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Law360 (April 14, 2020, 3:51 PM EDT )
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| Adam Bloomberg |
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| Merrie Jo Pitera |
But while increasingly common, videoconferencing isn't perfect. You risk encountering technical issues, "technically challenged" witnesses, distractions, and more. This is why deposing a witness in person is still preferable whenever possible; the ability to address each other directly, make eye contact, and hand off physical documents is tough to beat.
So before you run out and schedule your next deposition with everyone on Zoom or any of the numerous other applications available (GoToMeeting, Microsoft Teams, Cisco WebEx, etc.), we'd like to lay out the special considerations you'll want to make regarding how you set up, execute and prepare your witness for a videoconference deposition.
Preparing Your Witness to Testify by Videoconference
It's critical that the witness create an environment in which their audience (ultimately the jury) feels almost as though they're right there in the room. Indeed, just like in a normal deposition, remind your witness that this testimony may be used in a courtroom at some point; they must be mindful of the space they're in, their attire, and everything they say — or don't say (nonverbal communication).[1]
We therefore recommend that the witness begins prepping their space and setup at least a week in advance, in case anything needs to be adjusted, purchased or practiced further.
Set Up Like It's a News Broadcast
1. Choose a quiet location for the witness to sit, where there will be no noise, distractions or interruptions. An optimal setup would be a conference room or office. If you must testify from home, take extra care that you can (and do) lock the door.[2]
2. Remove distractions. Make sure the room you choose for the witness has nothing distracting in the background that can pull at jurors' attentions, like framed artwork or people walking by. If this proves to be a struggle, one thing that can easily clean up the view is purchasing a simple, solid-color backdrop.
Similarly, limit the number of open applications or tabs and visible faces on the witness's own computer screen, so their eyes aren't drawn away from the camera. Ideally, set it up so they can only see the speaking attorney(s).
3. Camera angle is critical. The witness should look directly into the camera. Eye contact is critical to jurors' perceptions of a witness's credibility; unfortunately, with videoconferencing, the natural tendency is to look at the person with whom one is speaking. To an observer, they appear to be looking awkwardly downward. Consider having the witness use a sticky note to remind them to always look at their camera.
As needed, they should also put a box or book under the computer to raise the camera up to eye level. If the angle isn't straight on, it will often appear to jurors like the witness is looking down at them.
While laptops and tablets tend to have decent webcams built in these days, it's possible your witness doesn't have a suitable webcam (or a webcam at all). Luckily, a quick search will turn up a number of affordable options.
4. Lighting is also critical. It's very common for someone to have their desk set up with a window behind them. The problem is that the camera will adjust the brightness, thereby leaving very little light on the deponent's face. That said, windows are a fantastic natural light and fill the face perfectly; so, the best possible lighting is to position your laptop facing away from the window, with the natural light shining on your face (without blinding or making the witness squint).
If proper lighting through existing means isn't possible, there are inexpensive LED options you can set up behind the camera.
5. Have your witness lock out their chair so it can't rock, or find one that doesn't rock. Also, remind them to sit up — their posture should be strong and professional, not lax.
6. Ensure they have water handy. It's not pleasant to give lengthy deposition with a dry throat, and having to frequently clear their throat, swallow or cough can throw off their pacing and damage their credibility.
7. Take regular breaks. Just like an in-person deposition, be sure the witness takes breaks to stay fresh (not during a pending question, of course). Remind them to mute their audio when on break.
Remember Your Audience
8. Make sure your witness addresses their audience. The witness needs to remember that while they may be responding to the questioning attorney through a computer, if the footage is used in trial, they'll be looking directly at the jury, typically projected onto a large screen or monitors in the jury box.
9. Have the witness speak up and not trail off with their answers.
10. Body language[3] and nonverbal do's and don'ts still apply. The witness may be lulled into casual habits by the distancing effect of a computer screen — but it's all being caught on camera. They should be wary of the usual culprits, from unconscious lip smacks to rapid blinking or nervous laughter, to avoid annoying the jury or damaging their credibility.
11. Remind them not to say anything until they are asked. Given the potential for minor connectivity lag, you don't want a clumsy, talking-over-each-other cycle to begin. A short pause will also give you a chance to object to an opposing attorney's question, if needed.
12. Have them dress the part. Your witness should dress just like they would in the courtroom. Wearing professional attire will bring an extra feel of formality to the proceedings and will lend an air of credibility.
Make Sure It's All Working Right
13. Know the conferencing software. Have your witness confirm how to answer the call and mute their voice. Make sure they're familiar with the basics of the program and any features they'll want to incorporate — sharing their screen, whiteboard features, digital pointers, etc. Practice with the drawing and highlighting tools to ensure the colors they're using will show up clearly on any relevant demonstratives.
14. Confirm the network speed. Connection speed is the most critical component of a successful video connection. The connection needs to be a minimum of 20 megabits download and 5 megabits upload speed. You can test your internet speed here with online tools.[4][5]
When possible, use a hardwire connection versus WiFi. While we've used WiFi with minimal hiccups — completely doable — a hardwire signal is more consistent and reliable.
15. Check the lag speed with the witness. Once connected, conduct a visual lag test. We do this by holding up five fingers on our end and having the witness count down on theirs. Something like a half-second delay is usually acceptable, but too much more can throw everybody off.
16. Do a practice run (or two) to make sure it's all recording correctly, the sound is coming through at an appropriate level and quality, and the witness's room and eye contact look correct.
17. Remember the technology still isn't perfect. Just be aware of the potential for buffering, hiccups and even dropped calls. Make sure you and your witness are prepared to adapt smoothly in such an event.
Final Preparations for the Day Of
18. Be sure you and your witness turn off all unnecessary software and notifications — email, news feeds, alarms, etc. This also applies to the usual external items — like cell phones and tablets.
19. If something must remain on, use the "Do Not Disturb" setting — including in the videoconferencing program itself. There is nothing more embarrassing than repeated calls from a friend, or a colleague's message popping up on the big screen asking, "Did your expert witness tank???" See the George Zimmerman trial for an extreme example.[6]
20. Tech check — you checked it earlier, but check it again. In addition to internet speed, sound is one of the most important components of a successful videoconference deposition. Be sure it's looking and sounding how you expected.
Final Thoughts
Given the widespread use of videoconferencing in our daily lives and business, it's easy to be lulled into a false sense of security when considering it for depositions. But for such important testimony, we need to be knowledgeable about the proper setup and unique preparations that ensure our witnesses remain persuasive and engaging. We hope the suggestions outlined above help guide your videoconference efforts, and we invite you to reach out to us for additional tips.
Adam Bloomberg is managing director for visual communications and Merrie Jo Pitera is chief executive officer at Litigation Insights.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.litigationinsights.com/part-ii-characteristics-for-improving-the-credibility-of-your-witness-undesirable-non-verbal-witness-characteristics/
[2] https://www.youtube.com/watch?v=Mh4f9AYRCZY
[3] https://www.litigationinsights.com/body-language-can-impact-witness-credibility/
[4] http://www.speedtest.net/
[5] https://fast.com/
[6] https://www.youtube.com/watch?v=tTKLHK3khdo
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