Although many trial dates have been pushed back to later this year or well into 2021, discovery, mediations and case evaluations continue on. And just like jury research has had to adapt to the new world of social distancing, so too has conducting depositions.
While attorneys participating in depositions over the phone is nothing new, what has changed is that many witnesses are now fielding those questions from their kitchens or bedrooms, rather than the conference room at a law firm. And when conducting your depositions over Zoom, Skype or FaceTime, it is important to keep in mind that at some point these recordings may be shown during a focus group or mock trial, or even during a live trial – highlighting the need to ensure your witnesses come across as credible and effective, even though the backdrop is decidedly more casual.
Ultimately, the goal should be to impart on your witnesses the importance of treating a virtual deposition just like they would an in-person one. The primary difference is that instead of having a professional videographer in the room, your witness is now responsible for framing the shot, setting up the lighting and positioning the camera – something that we are quickly learning doesn’t come easily to everyone. As such, we have devised a list of basic recommendations to help you and your witnesses navigate this new format.
First, although there are distinct advantages to working from home, most of us would admit that no longer going to an office has resulted in dress codes being somewhat relaxed (and in some cases, extremely relaxed). Although it may seem obvious to emphasize to witnesses that they need to dress the part regardless of whether the deposition is virtual or in-person, we have observed during the last few months that some witnesses clearly have a different idea of what a “professional appearance” looks like. Don’t be afraid to provide specific clothing recommendations to ensure their appearance conveys a sense of confidence and professionalism – even if they are answering questions from their couch.
Second, even if a witness is professionally dressed, the wrong camera angle or location can create major distractions. In case you missed it, recently a Good Morning America anchor failed to check his camera position and it was quickly revealed that below his professional-looking shirt and coat was a pair of shorts. Not a good look.
In addition to ensuring the camera isn’t too far out since that can reveal more of the background and less of the speaker, it is also important to avoid extreme close-ups, which can be really jarring. We have also noticed a trend of highly unflattering camera angles – especially low angles that focus on the chin. Placing a few books under the computer, tablet or camera can do wonders in creating a head-on, from-the-chest-up of your witness.
Third, although a law office’s conference room has good lighting fit for a deposition, many people’s homes do not. In addition to ensuring there is plenty of light to avoid the “floating head” phenomenon created by a dark background, it is important to remind witnesses not to sit up against a window or other light source since their face can easily be washed out. Sitting in a non-swiveling chair up against a wall with even lighting will do just fine.
Fourth, witnesses need to be especially mindful of what, or who, is visible in the background. During a recent virtual focus group, we showed jurors a clip from a key witness deposition, and several pointed out the presence of a man watching TV just off screen, which caused them to spend more time wondering what he was up to rather than focusing on the witness. If there is a huge mess or people or animals moving around behind the witness, it can obviously create significant distractions for those viewing the footage. Recommend to your clients to tidy up, or better yet just use a virtual backdrop.
Overall, the fundamentals of witness preparation have not changed – posture, eye contact, attitude and body language still matter. But as more depositions and witness prep sessions are conducted virtually, there are clearly some new things of which you and your witnesses should be mindful. We will add to this preliminary list of recommendations as time goes on, but in the meantime if you would like some help with live or virtual witness preparation and adapting to the new way of doing things, please reach out to us. Partner/Senior Vice President Claire Luna can be reached at cluna@juryimpact.net or 949.735.1278.
Pivoting During a Pandemic
We have resumed in-person research this month in some areas, but we will continue conducting virtual focus groups in many jurisdictions into the fall. This includes areas with an older population that is higher risk, or places with extremely restrictive social distancing policies limiting the number of people in a room.
Our virtual focus groups have provided our clients a meaningful way to evaluate cases and develop mediation and trial strategy. Through Zoom, we can conduct focus groups that provide the same kind of challenging, juror-driven discussion you love from Jury Impact but through remote technology. Juror predispositions, case facts, arguments, witness videos and damages can all be tested while you observe and communicate with our backroom analysts to make sure the research stays focused on your priorities.
Jurors are craving both social interaction and financial compensation right now, and this format allows your trial team to safely explore their perspectives through virtual-only research. Contact us for more information on this approach, or a no-cost webinar to see exactly how it works.
