Covid-19 has ushered in the era of the remote deposition. Preparing a client to be an effective witness in a remote deposition setting creates unique challenges. This article will discuss some of the concerns that often arise in that deposition preparation process. Many of the ideas expressed here are discussed in a recent article titled, “Maximizing Witness Effectiveness in a Remote Deposition”, by Ann T Greeley, Ph.D, a psychologist and trial consultant at DecisionQuest. It occurred to me reading her article that although I have competently prepared witnesses for deposition for decades, remote deposition preparation may require some fine-turning of my tried and true approach.
The ultimate objective of witness preparation is to make the witness as confident and persuasive in his or her testimony as possible. Witnesses need to “own” their testimony. The challenge is how to make them most comfortable in what Dr. Greeley describes as their “own non-verbal ‘skin’ ” when they testify. One advantage of preparing a witness remotely is that the prep can be broken into several shorter sessions rather than one marathon preparation session, which is often what occurs when defending counsel flies out to meet the witness at their workplace. A shorter prep session may be more effective particularly when it comes to making modifications in how the witness communicates via Zoom. Shorter prep sessions can make deposition preparation less demanding, particularly where witnesses are being prepped in their home or office without having to going to a lawyer’s office. Long prep sessions in a lawyer’s office can be wearisome and stressful. Over a webcam, the witness may not feel that he or she is not under as much scrutiny as during an in-person meeting. Short preparation sessions can also serve to build a relationship between the lawyer and the witness. Significantly, being alone in a room staring into a camera mounted on a computer screen provides the witness a good preview of what the deposition itself will feel like. By preparing the witness on-line, counsel can make a good assessment during these sessions concerning what work needs to be done in advance of the deposition to ensure that the witness will look and behave appropriately in the deposition. Problems that arise during the prep can be addressed ahead of time.
If the camera used in the deposition is an external stand-up camera, the witness should be positioned straight-on with his or her head and shoulders dominating the screen image. If the camera is on a laptop, it is important that the camera be placed level with the witness’s face. If the camera is too low, the screen shot may emphasize a double chin or nose hairs. If the room the witness is sitting in is in the shot, counsel should ensure that the background is neutral–book shelves, wood paneling or drapery, for example. It is best to avoid “busy” backgrounds, such as rotating fans or unusual artwork. Similarly, witnesses should be cautioned not to pose in front of simulated backgrounds, such as ocean surf at sunset, swaying palm trees or the Oval Office. If the deposition is videotaped for use at trial, these artificial backgrounds may seem to jurors as impertinent or disrespectful.
For the same reason, a corporate executive should not deposed wearing a golf shirt or an outfit that may seem out of character with his or her position with the defendant corporation, or worse, may appear to flaunt wealth and privilege. Dr. Greeley recommends that an executive should look like an executive and that a truck driver should look like a truck driver. There are both positive and negative stereotypes to be sensitive to. A physician testifying from her office at the hospital wearing a white smock with medical insignia and a stethoscope draped over the neck might effectively present the stereotypical hardworking clinician and caregiver. In contrast, a psychologist dressed entirely in black may appear vampiric or distant, particularly if he speaks with an Eastern European accent. At a minimum, the remote deposition witness should be neat and well-groomed. The witness should be cautioned that gestures like constantly adjusting a tie, swiveling in his chair or flipping or fussing with long bangs will come across poorly. A witness that looks from side to side, rather than into the camera, or who exhibits nervous gestures, may suggest to jurors that the witness is being deceptive. If the witness’ attire is too distinctive or unusual, it may suggest a political leaning or an anger management issue. Therefore, it cannot be emphasized enough that an important part of remote witness deposition preparation is ensuring that the witness conveys proper body language, pays close attention during the questioning and maintains good posture.