By Jill D. Schmid, Ph.D.
For years, I’ve successfully avoided Facetime calls and most video conferences. However, around 9 weeks, 2 days, 13 hours, and 42 minutes ago, that all changed. Not only did all of my work transition to video conferences, but so did my communication with my family and friends. Houseparty and Zoom are my new normal and I have to say, it’s not all bad! Yes, there are all the headaches we’ve known about for years: everyone talking over each other, followed by silence as everyone stops to let others continue; the frozen feed followed by everyone having to repeat what was just said; surprise video “guests”; etc. Through it all, though, people have adapted, and their video “skills” have improved. We’ve also learned that there are some things that do not necessarily need to be conducted “in person.” Just like all of the attorneys out there, our firm is also figuring out what can and cannot be done via videoconference. My colleague Tom wrote about one aspect of this in his blog, “How Does the COVID Pandemic Impact Mock Trials and Focus Groups?”
One aspect of the new litigation normal appears to be Zoom (or similar platform) depositions. I’ve seen a few blogs about the subject – all containing good logistical advice. Things like:
- Make sure the “camera” is eye level.
- Have a clean / bare backdrop.
- Check your lighting.
- Don’t be too close or too far away from the camera.
- Check the audio.
- Don’t wear “busy” (small print) or “loud” or “too dark” clothing.
- Don’t talk too fast.
- And, practice ahead of time.
This is all great advice, but all of it got us thinking about the intangibles associated with successfully deposing a witness, more specifically how much might be lost in the video feed? So much of the blog posts lately have focused on what Zoom depositions mean for witnesses, but it is also important to examine what it means for deposing attorneys. Or another way of thinking about it, what do you think of as your deposition superpower? Your strategic use of silence? The way you lean in or out? A certain facial expression? Laser like eye contact? A casually indifferent attitude? An austere air? Whatever it is, some of it is likely tied to the way you physically present yourself. Therefore, when that presence is limited by a camera lens and the various limitations imposed by a video feed, do you lose that special power? Research suggests you most likely do.
The primary problem centers around your inability to use all the visual cues that are present in face to face communication. Consider how the entire experience is different when virtually deposing a witness: the person’s ride to your downtown high-rise office building, waiting in the law firm’s impressive lobby, entering a sizeable conference room and finding a videographer, multiple attorneys and corporate representatives or the plaintiff/plaintiff’s family, etc. All of those things create a power differential that cannot be recreated over video. Then, there’s where and how you sit, your posture, your eye contact, the presence of stacks of exhibits, and probably your favorite power suit. If your superpower is intimidation simply by walking into a room and sitting a certain way at the table, it will be impossible to recreate that through Zoom.
Or, perhaps your superpower is your ability to make people feel relaxed which loosens their tongues. Research has found that because video communication “limits nonverbal, paraverbal, and status cues and reduces the ‘richness’ of the information communicated,” the communication itself is more “task-oriented,” or “more orderly, formal, and polite.” Additionally, research has found that its more difficult to develop rapport (Wainfan and Davis, 2004). Bottom line, if people are more focused on the task at hand, and are not being influenced by your charming personality, they are less likely to fall into any traps or wander into territory they do not want to wander into.
If your superpower is a rapid-fire line of questioning, also designed to get the deponent to not think before they speak, video communication is likely not your friend. Research shows, and I think we’d all agree, these types of meetings are much less efficient; a lot of time is spent repeating questions and answers. Not only will this give the deponent a lot more time to carefully think about each answer, but because everything simply takes more time, you might not get as much accomplished as you’d like.
Of course, all of these things exist should your witness be the one being deposed. However, for this to work to your advantage, you will still need your witness to get used to the set-up. Anxiety associated with the technology will impact how your witness is perceived by the potential jury. An anxious witness is often viewed as evasive and untrustworthy. Practice, practice, practice.
Back to you, though. Since Zoom depositions are likely going to become a routine part of your life, you’re going to have to do more than think about whether the camera is placed at the proper angle. You should also practice. Set up a Zoom meeting with a colleague or consultant and have them give you feedback about your presentation style. What is and is not translating into effective communication? What works in person, but falls far short when sent digitally? You will also likely have to streamline your questions since you might have limited time to accomplish your goals. Additionally, think about who you want to be “on camera”; clearly the deponent will be, but we’d encourage you to make sure that there is a separate camera/feed for their attorney (even if that attorney is in the same room). You need to be able to see what both the witness and counsel are doing.
Bottom line, do not think you can simply do the same thing you always do and it’ll work for you. You’re going to have to adapt, but perhaps in that adaptation you can find an even better superpower.