How To Effectively Prepare A Witness For Remote Testimony

This article originally appeared in Law360 on April 25, 2022. It is republished here with permission. Hailey Drescher, Ph.D., a senior consultant at Trask Consulting, was also a contributing author on this article.

The pandemic begrudgingly dragged the legal profession into the 21st century.

Despite court closures, stay-at-home orders and travel restrictions, litigation continued. The onward march of litigation forced trial lawyers to lean on technology to connect pivotal players and move the truculent mule forward.

As trial restrictions ease, many lawyers — especially newer generations of lawyers — are eager to hold onto the benefits that technology can provide to the legal profession.

While remote depositions or virtual hearings are indisputably more convenient and cheaper than flying interested parties around the country, a virtual environment presents different obstacles that lawyers must consider.

Lawyers should not underestimate these challenges when preparing and presenting witnesses to testify. The filming environment, demeanor and Zoom filter can greatly affect perceptions of testimony and credibility.

In fact, many of the lessons taught in an introductory theater performance class can provide foundational guidelines for virtual witness preparation that should not be taken for granted or assumed obvious.

After all, the witnesses do take center stage during their testimony and their impact on the audience is crucial. Say these rules out loud to your witnesses and say them often, because when the webcam turns on and your witness is wearing a chartreuse tracksuit comfortably seated in his bedroom recliner, it will be too late.

Remember your audience.

Yes, the vast majority of deposition footage is never seen by a jury.

However, when preparing a witness, it is critical that the witness understands that jurors will analyze not only their testimony, but also their tone, delivery, demeanor and overall presence when evaluating their credibility.

The default assumption should be that this recording will be viewed by a jury deciding the fate of your client. Remind your witness that opposing counsel will likely not play the five minutes wherein they answered the question beautifully, but instead, the five minutes from the end of the day when the witness is spinning in their office chair and staring exhaustedly away from the camera.

To that point, put your witness in a stationary chair to avoid the temptation of rocking and spinning.

You are the director, so be present for your witness.

There is no rule that says you cannot be in the room with your witness during their remote testimony, though it will likely raise some eyebrows. Witnesses are likely to be more at ease if their advocate is present during their testimony.

Moreover, nearly every issue we discuss can be resolved if you are in the same room as your witness. The opposing attorney may raise concerns that you are coaching the witness, but such concerns can be assuaged if you also appear on camera to demonstrate you are not improperly influencing the testimony.

The star of your show is not a Zoom expert.

Two years of virtual meetings have made the workforce generally comfortable with a variety of online meeting platforms — i.e. Zoom, Teams, Google Meet, Webex, Skype and Slack. These mediums have become so ubiquitous that most users are now self-proclaimed experts. This is dangerous. Really dangerous.

Anecdotally, it seems that witnesses who profess the most Zoom knowledge are the most likely to be technologically illiterate. Do not rely on your witness’s self-professed expertise, because when they struggle to remove the cat filter they will no longer be focused on the task at hand. This is especially true if, for some reason, you cannot be in the same room as your witness during their testimony. We strongly recommend conducting a technical walk-through three days before the show.

Is your witness ready for his close-up?

Zoom hearings have taught us that lawyers are not cinematographers, and without the standard school photo backdrop, many are flying blind. Too often attention to the lighting, background, camera angle, wardrobe, etc. is lacking. We get it, lawyers are focused on the substantive landmines.

However, these details can distract the jury and undermine the credibility of your witness. Jurors will want to know, why was everything in that witness’s room purple? And why was he filming in his bedroom? And what the heck was that thing on the bookshelf in the background?

A few quick tips on cinematography:

Proper lighting is important.

Both you and your witness should have a ring light. Ensure that it is bright, but not blinding because you and your witness should be looking into the light during the testimony.

Never backlight your witness. It will wash them out.

Your star should be center stage.

The witness should be in the middle of the camera frame. This may require moving a chair, desk or computer.

Camera angle should not be overlooked.

The camera angle should be slightly above the witness and roughly at the same height as the witness’s forehead. The camera should not be angled down nor should it be angled up.

Your set — i.e. background — should not steal focus from your witness.

The background should be neutral or blurred. Busy backgrounds or stock background options are distracting, your witness is not in outer space — he does not need a cosmic background.

In addition, we are naturally curious creatures. Do not give others the opportunity to assess your witnesses’ interior design skills, family photos or bedroom paint choices.

Edit the props and avoid product placement.

The only prop permissible should be a generic coffee mug or water glass.

Your witness may be the world’s greatest grandpa, but he can save that coffee mug for next week’s Rotary meeting.

Control the space.

Ask your witness to place a sign on the closed door indicating that they should not be interrupted while filming.

You are the lead costume designer.

This is not the place for interesting wardrobe decisions. Let’s start with the basic rule that suit mullets — business on top and party on bottom — are not allowed. For some reason, we have adopted a mentality that we only have to be dressed professionally from the midsection up.

Zoom depositions, however, should not give rise to the suit mullet. Both you and your witness should be dressed professionally because inevitably one of you will forget that you are only half-dressed and stand up or readjust revealing that you are wearing bike shorts.

Moreover, your witness will perform better if they are dressed professionally. We inherently sit and behave differently in our sweatpants than we would in slacks.

Rule of thumb, if you would not wear it to an in-person deposition, don’t wear it in a virtual one.

Don’t forget the dress rehearsal.

We recommend a full-dress rehearsal at least three days before the deposition. You need to see the selected background, evaluate the water glass and assess your witness’s personal definition of professional dress.

A dress rehearsal allows for important corrections prior to the choices being forever immortalized. It gives your witness peace of mind knowing that the logistical aspects are set and ready. This frees up emotional and mental space to focus on the substantive material.

We recommend a second set of eyes to protect the cinematography of it all. A colleague not in the weeds will likely notice that the snake cage needs to be removed from the shot.

Finally, evaluate the witness and the overall case and consider retaining a consultant to aid in preparation.

Conclusion

Videos of attorneys using cat filters or witnesses testifying in a tracksuit may be funny, but the implications of such a mistake can be devastating for your clients. Regardless of how much experience a witness has with Zoom or other online video platforms, every witness must be carefully prepared for remote testimony.

Spending hours effectively preparing a witness for deposition is an investment. Spending days evaluating and troubleshooting case strategy resulting from a poorly prepared witness is triage.