Maximizing Witness Effectiveness in a Remote Deposition

Ann T. Greeley, Ph.D. 
DecisionQuest^® 

Remote depositions have been around for a long time. However, the COVID-19 pandemic has cast them in a new light. Traditional face-to-face depositions are now often impossible and remote depositions have evolved into the rule rather than the exception. Accordingly, conducting them effectively has become critically important.

At U.S. Legal Support, we have supported attorneys in thousands of remote depositions. In fact, since March of this year alone we’ve scheduled over 40,000 remote events. We know a great deal about when, how and why they work well – and how to avoid potential missteps. What follows is a distillation of what we’ve learned – a guide, in other words, on how to depose a witness effectively when everyone isn’t in the same room.

Preparation

Abraham Lincoln once said that if he had six hours to chop down a tree, he’d devote the first four to sharpening his axe. Remote depositions work the same way: preparation is essential. Preparation allows the witness (and the attorney defending or taking the deposition) to be comfortable with the process. A well-prepared witness is more confident, more convincing and significantly more effective. They “own” their testimony and are more at ease in their own non-verbal “skin” when they take the stand.

Remote witness preparation is different than traditional preparation in many significant ways. In some respects, it is easier and better. Just as the attorney is not physically in the room with a witness during a remote deposition, they also may not be able to be in the same room while preparing the witness. Surprisingly, this can provide many advantages. As an example, sessions can be shorter. As trainers, we know that shorter sessions are more effective, particularly when it comes to changing communication patterns and removing emotional blocks. Multiple sessions that build on each other are also more easily scheduled.

Witnesses are often more comfortable being prepped in their home without the inconvenience of going to the lawyer’s office, or worse, traveling a long distance. And the session itself is preparation for being alone in a room with a camera. Remote preparation sessions also provide a much clearer assessment of how a witness needs to look and behave during the remote deposition. Potential issues can be identified and addressed in advance.

Remote depositions are also cost-effective. The client will incur less travel-related expenses and the lawyer defending or taking the deposition has to spend less time traveling to and from the deposition. When the witness and the attorney are geographically far apart, or there is a significant traveling entourage of attorneys, the cost savings can be significant. Also, many witnesses are more comfortable testifying in familiar settings and in the proximity of loved ones.

In addition, remote depositions are usually less emotionally taxing for the witness. Most people find depositions very stressful. It is not easy or pleasant to sit in a room for hours, answering questions under scrutiny. There are different pressures in a remote deposition, and the process may still have the same cast of characters, but when the deponent is at the other end of a camera, the stress level can be lower.

And as long as decorum and process are preserved (for example, objections can be registered), there is little fundamental difference between remote depositions and in-person depositions. Remote deposition platforms, such as RemoteDepo™ offered by U.S. Legal Support, provide secure virtual meeting rooms for everyone to interact from the comfort and safety of their own home or office. RemoteDepo™ facilitates realtime exhibit sharing, on-screen annotations, public and private chat capabilities plus private breakout rooms in which the attorney and witness can discuss, review and prepare. These private breakout rooms are safe virtual spaces where the attorneys can take a break or have lunch with a witness during the process, helping the witness feel less isolated and more supported and confident.

Remote depositions also allow the attorney to factor the general importance of an individual witness into their planning. Traveling to a remote location, for example, to defend a witness who has only an hour’s worth of minor testimony doesn’t make sense and now doesn’t have to happen. Availability can also be managed. When weather intervenes, someone’s health unexpectedly deteriorates, or some other circumstance arises, a quick-turnaround remote

deposition is an excellent solution. Similarly, when a very important witness has a packed schedule, or is out of the country and a deposition deadline looms, a remote deposition makes sense.

Most of the same steps taken to prepare for a remote deposition are the same as for in-person depositions (with or without a videographer). In some states, remote depositions can be used in lieu of trial testimony, even when the witness is available. Many of the same cautions and preparations are needed for either situation.

One important caveat: using remote testimony, either for a parole hearing or for trial, is opposed by many criminal attorneys depending on the criminal defendant’s circumstances. Remote trial testimony taken from jail may mean that the inmate is in an orange jumpsuit instead of street clothes and there may be institutional backgrounds which can engender potential bias against the individual before they have said a word. In studies about using videos in criminal trials, witnesses were viewed more negatively than witnesses seen in person. Further, facing your accuser is a constitutional right in a criminal trial and virtual proceedings do not allow for direct confrontation. As such, use of remote testimony in criminal trials must be evaluated separately from civil trials.

However, in civil trials, as noted above, remote depositions offer many advantages and can be a valuable addition to the in-person deposition option. Once the decision to take a remote deposition has been reached, the next step is managing the process. Below are some recommendations.

Before the Deposition

Logistical Preparation and Camera Shot:

• Make sure that the deposition’s settings and connections are suitable. A remote deposition service, such as U.S. Legal Support’s, is important because information about details like the setup, audio/video requirements and connection speed can be provided in advance.
• If the camera is an external stand-up camera, then the witness should be positioned straight-on. The remote deposition provider should check the shot and make sure that it displays the head and upper body of the person behind a table.
• If the camera is in a laptop, it should be placed at the height of the witness’s face, so the witness can look directly into the camera, with a slight downward angle if possible to get a good picture of the witness’s face. Double chins appear when the camera is too low. When the camera is too high, the witness can appear to be looking up to the questioner rather than being on an equal plane.
• The frame of the shot should not be a close-up or, in video terminology, an establishing shot. The tighter the shot, the more prominent any non-verbal behavior (e.g., tilting the head, drinking water or fidgeting) will seem. Make the screen capture of the witness as broad as practical. Although a plain wall is usually suggested, if there is enough room in the shot, a bookcase or other professional background (nice wood paneling) or a drape are acceptable also. Anything too busy-looking, however, will distract the viewer.
• Audio should be checked ahead of time. Individual lavalier microphones, clipped to the lapel of a jacket or on a collar, are usually used; we do not recommend using one microphone in the middle of the table. Make sure volume is appropriate and the sound is equally loud and clear for both the questioner and the witness.
• Make sure you, the attorney, look professional, because you will also be seen in most remote depositions. What you say is important too, so remember to be appropriate, polite, and at the right volume level.
• Beware of technical problems and plan ahead. Connection interruptions are rarer these days, but, whenever technology is involved, disruptions or adjustments can happen. Have a backup plan in place and consider working with a litigation support services partner who offers deposition technicians for the duration of your proceeding.

Documents

• Counsel will need to decide whether to send documents ahead of time or display them electronically during the deposition. The defending attorney—and even the witness—may know the sequence and the subject matter before the deposition, which is an advantage for the party offering the witness. U.S. Legal Support offers secure, realtime exhibit sharing through InstantExhibit™ , which allows counsel to tailor this process to the specific needs of each deposition and witness.
• If the questioner chooses to display deposition documents on-screen, the witness must be prepared to react to them on the spot. This is an advantage for the questioning attorney. The defending attorney should prepare the witness accordingly.
• Documents typically are displayed on one side of the deponent’s screen. In other systems, however, they may fill the screen (and deponents’ faces will not be seen by the attorneys). The witness should review the documents, but then be careful to look up at the camera when they are ready to respond to a question.

Room/Background Considerations:

• Pre-deposition reconnaissance of the setting of the deposition is very important for the defending attorney (and also the questioning attorney).
• The witness should never have his or her back to a window as the lighting can make it hard to see their face.
• Lighting should be bright enough, soft (not fluorescent) and even. Shadows behind or on the witness’s face are distracting and could affect perceptions of the witness. Strong light shining on a bald head will also be a distraction.
• Other lighting may be unflattering to the witness. Some light sources, such as fluorescent lighting, may make a person look pale or even ill. Many offices use overhead lighting, which tends to be uneven. Ring lights can be an inexpensive option to provide even light from the front and can be attached to video cameras, laptops or tripods.
• Remember that lighting can be hot, so make sure the room is suitably cool and the witness does not sweat.
• Plants, fans or artwork in the background are distracting. No one looks good with a palm tree growing out of their head or a fan spinning above them. Similarly, a painting of a boat passing by or a print of a flower can be distractions. Simplicity is key.
• Make sure the room is as quiet as possible. Watch out for loud conversations in the hallway, traffic noise and loud air units or air conditioners. Remember to turn phones off.

The Role of the Trial Consultant in Preparation

The trial consultant plays several unique roles in preparing a witness for a deposition, from working with the witness on communication skills and non-verbal behavior to being aware of the logistical and background characteristics of a good deposition video. At DecisionQuest, our trial consultants are trained psychologists and communication specialists. They help the witness deal with anxiety, coach them in style and demeanor and educate them about the trial process. The consultant can help the witness develop strategies for responding to friendly or aggressive

questioning or dealing with questions that seek to inappropriately characterize their testimony. One of the most important topics our consultants address is non-verbal behavior.

Effective Non-Verbal Behavior:

Effective non-verbal communication (body language) can have an immense impact on the perception of testimony. This includes topics like how to sit, how to have appropriate eye contact and even how to handle documents. Here are some highlights:

• The witness should sit as if they are in a job interview: leaning slightly forward, listening attentively and using hand gestures that are restrained and don’t overwhelm the viewer.
• The deponent should never sit in a swivel chair, because he/she will undoubtedly swivel in it! The most common non-verbal problem we encounter with witnesses is repetitive displays of nervousness like this.
• The witness should avoid actions that show anxiety: straightening a tie, twirling a piece of hair, adjusting glasses repeatedly or shifting around. Hair flipping or fussing with bangs is most common among women and is often perceived as being too casual, flirty, or unserious. Nervous gestures can be interpreted as indicating lying or deception.
• In a remote deposition, the witness should be instructed to look right at the camera. Witnesses should not look side-to-side.

Attire and Appearance:

• Clothing has a major impact on the impression a witness makes in a video or remote deposition. They must be clean and appear to be well-groomed at a minimum, as well as match the expectations of their role, e.g., an executive should look like an executive, a truck driver should look like a truck driver, and a doctor should look like a doctor (though the medical coat is optional). It is important to talk to witnesses about their attire, particularly for a remote deposition.
• Jewelry, makeup and hair should be simple and neat. Men should get a haircut or, if that’s not possible, at least comb their hair. Women with long hair should consider wearing it pulled back, unless they can assure you that they will not twirl, flip or touch it.
• Our consultants have seen endless clothing misfires. A few of the more memorable ones include:
  • • A female HR representative wearing a button-up blouse (remember: that which has been buttoned can come unbuttoned—and on camera);
    • A female executive wearing a voluminous scarf (it looked like she was hiding behind something);
    • A male executive wearing a golf shirt (do we really want to think about him golfing instead of running the company?);
    • A male warehouse worker wearing a shirt with the emblem of the company emblazoned on the pocket (looks like he is bought and paid for by the company, even if it is his uniform);
    • Anyone in a t-shirt, especially with a logo or lettering on it.
• Other clothing misfires have to do with reinforcing stereotypes or negative impressions about certain occupations/situations:
  • • A banker or accountant who has the white-collared shirt (different from the rest of the shirt) and tie bar, reinforcing the caricature of a banker or accountant;
    • A psychiatrist who is wearing all black and does not look approachable;
    • A lab tech who is rumpled and does not look clean;
    • Anyone in a shiny suit.
• Another form of problematic attire is clothing that makes the witness look particularly distinctive or suggests a particular political leaning or anger problem. Other distinctions may include unusual facial hair, too much makeup or too many piercings.
• What about beards? Impressions of facial hair, like tattoos, change with the times. Facial hair is “in” now. Most people who have facial hair do not want to get rid of it for a deposition and do not need to do so unless, as noted above, it is distracting.
• What about unusual body language? These situations are worth explaining through the attorney’s questioning and the witness’s words. For example, “I recently had back surgery so I need to move around a lot to avoid pain,” or “I have a bit of a stutter which comes out when I am nervous.” If a witness has a medical condition that requires him or her to have a different chair, or to have a special hearing device, explain that condition, preferably on the record.

Should you change your witness’s appearance? Not necessarily. Gauge the impression they make within their role. Although you are trying to preserve the individual’s personality, things that may distract your message are almost always superficial and can be altered. Things they cannot change are not worth discussing.

During the Deposition

Timing, Pauses and Breaks

• Be aware that time is perceived differently in a remote deposition. The customary instruction to the witness is to pause and take time before answering. In a remote deposition, very long pauses seem longer; extremely long pauses suggest to viewers that the deponent doesn’t know, or worse, is making up the answer to a question. Accordingly, in a remote deposition, witnesses should be careful not to answer too quickly, but should also be mindful that long pauses are awkward and can suggest evasiveness.
• Breaks are important for any witness. The witness should be reminded that he or she can always ask for a break, unless a question is pending, and the attorney can pre-set approximate break times or intervene when necessary. This is particularly important in a remote deposition, in which the attorney cannot always sense the witness’s fatigue.
• During a break, a witness should leave the room and also should not speak while in the room. In other words, when a break is called, the witness should remain silent. The recording can inadvertently capture comments made before or after the recording was supposed to be on, or even comments made under the witness’s breath.

New Rules for Verbal Answers

• The old principle of “don’t volunteer” when a “yes,” “no,” “I don’t know” or “I don’t recall” suffices is generally still true. However, in a remote deposition, repeated use of these responses can make the witness appear to be withholding information or being very defensive. We suggest that, thirty percent of the time or more, answers should be in sentences, especially if the content is benign.
• The essential principle is that witnesses should not be defensive. In some circumstances, explaining why you cannot answer the question is just what is needed. For example, just saying, “I would like to be able to answer that question, but I did not have access to those documents” or “I would like to be helpful, but I do not recall that meeting” can truncate a long series of questions.
• Providing the context that is lacking in the examiner’s question if it exonerates you or clarifies your position is often a good strategic move. Sometimes, just answering a question by offering your theme is a positive strategy. This advice is often the direct opposite of what traditional deposition preparation suggests, but is important, especially if the video will be used as trial testimony.

In Conclusion

The remote deposition witness can be effective if the attorney does the appropriate logistical preparation and the witness understands the remote framework. Though there may be occasions when an in-person deposition is preferred, remote depositions will be the new normal for some time to come.

The best way to assure that a remote deposition is successful is to practice and to have professionals assist you via remote witness preparation. Working as a team, the attorney, the remote deposition professional and the trial consultant can provide important guidelines for the remote deposition, as well as feedback to the witness well in advance of the actual deposition. In this way, you can be assured that the witness’s performance will be one you, the camera and the trier of fact won’t want to forget. And most importantly, neither will your client.

About the Author

Ann T. Greeley, Ph.D. is an accomplished psychologist and trial consultant on the DecisionQuest team. With over 30 years of experience consulting on over 1,000 civil and criminal cases, Dr. Greeley provides strategic jury research and consulting services to clients nationwide.