As we are moving up yet another hill on the pandemic case-count rollercoaster, hopefully the last rise before the final descent into a vaccine landing zone, courts are once again pulling back in–person trials, while lawyers look for ways to stay prepared using virtual tools. Along with web-conferenced hearings and even trials, we have seen a robust amount of virtual witness preparation sessions. I suspect that, to some extent at least, this might be an adaptation that persists even after the coronavirus has subsided. For the key witnesses, it will be better to do most of the preparation in person, but for quicker meetings or with less central witnesses, the virtual preparation session might offer an easy and economical alternative way to meet.
Through this pandemic, the vast majority of witness preparation meetings that we have been involved in have been virtual, and the method has worked surprisingly well. After some initial skepticism on both sides, we and our clients have become generally sold on their value. But not all virtual witness preparation meetings are created equal. In this post, I am going to share seven “best practices,” which we believe help in maintaining and expanding the value of an online web-conferenced session for your witnesses now and into the future.
1. Keep Some Informal Conversation
There is something about the online-meeting medium that conveys a “Let’s get down to business” attitude. It is perhaps the reasons that online company meetings have generally ended up being a little shorter than their in-person counterparts. But in a witness preparation session, there is an important purpose served by informal conversation and chatting. It allows you to assess the witness’s baseline communication habits, and it allows the potentially nervous witness to get more comfortable with you and the process. So, leave some time for less formal communication.
2. Make Meetings Shorter, but More Numerous
It has been noted that there is a “Zoom fatigue” that can set in after a couple of hours. While an in-person meeting with a witness might run four hours or more, it is pushing the limits of our technology comfort for an online preparation session to last that long. Instead of pushing through to complete the preparation in one sitting, we recommend holding shorter sessions, but more of them, if needed. The ease in scheduling and starting an online meeting, and the fact that no one needs to travel, makes it easier to say, “Let’s call it a day for now, and find an hour next week to continue.”
3. Pay Attention to Setup and Camera
When the testimony that you are preparing for is online, or may be online, then it makes sense to spend some time talking about the set-up: a neutral background, plenty of light in front of the witness (not behind), and the camera at eye-level with the upper body centered and filling most of the frame. Even if the testimony is likely to be in person, it still makes sense to pay attention to the optics for the meeting, both because some of those facets (like posture) will apply in an in-person setting, and also because you simply want to practice good communication in a meeting about good communication.
4. Don’t Overload
In any witness preparation meeting, a common pitfall is trying to do too much in one meeting. If you tell a witness literally everything that they could be doing better, you are probably overloading them. For example, meetings that mix a focus on the substance (What is our position?) as well as execution (How do we communicate it?) may be too much. If we treat the online preparation session as a single precious opportunity to get it all done, then we may be trying to do too much, especially when using technology that makes it a little harder to maintain attention. The medium makes it easy to create separate meetings: Discuss our stance in one meeting, then practice the testimony in another.
5. Potentially Include More People
The nature of the online meeting space also makes it easy to include more people when it makes sense. Co-counsel, paralegals, or insurance representatives may want to listen in just in case relevant issues come up. They can also do so without “crowding” the space: If anyone’s role is simply to assess the witness, or to be a just-in-case resource, then they can keep their camera off in order to keep things simpler and more direct for the attorney, witness, and any witness preparation consultant.
6. Give Everyone Their Own Camera
In some witness preparation scenarios we have seen, some of the people are meeting in a conference room in person, while others are logging in via a web-conference. One disadvantage this has is difficulty in setting up a good camera position: You either leave the questioner off-camera (when you focus on the witness) or you end up having a side-view of both. You also have the problem that, if you’re following current health advice, the in-person participants will need to be masked. We have found that the better online meetings are fully online, where every person who will be speaking has their own laptop and camera.
7. Record Practice, But Keep It Simple
Finally, because there is often value in having witnesses watch themselves in practice testimony, you need a way to do recording and playback. Naturally, you don’t want to record the entire session, but you do want to record examples of sample testimony so you can offer an example and a critique. In theory, you could use the “record” feature of your web-conference software platform, selectively turning it on or off, and then sharing your own screen as you playback. In practice, we have not had a good experience with that, as sharing video seems to frequently overload the connection leading to some visual and audible stutters and freezes. We have found it is better to go “old school” and simply point a recording/playback device (like an iPad) at the screen to both record and playback. Ultimately, you want a way to give that visual feedback, but you don’t want the possible glitches and distractions.
To be sure, there are some sacrifices in a virtual environment. The technology isn’t fool-proof, and you can miss some of the communication nuance that you’ll only see in person. At the same time, following these practices provides you with a solid chunk — I’d say 80 percent or more — of the value of an in-person preparation session.
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Image credit: 123rf.com, used under license
