Credibility During Zoom Trials, Hearings, & Depositions

Zoom Hearings and Trials: Tips for Presenting with Credibility

With the arrival of (what appears to be) effective vaccines against COVID-19, the return of routine, in-person court proceedings and depositions could be only a few months away or several months away. But, given the substantial benefits from the use of Zoom, Google Teams, Skype, and other videoconferencing apps, virtual (bench) trials, hearings, and depositions are likely here to stay indefinitely to some degree.

How Counsel Can Best Exhibit Credibility Through Zoom Hearings

Credibility is the paramount foundation to successful arguments and persuasive evidence—regardless of the medium used to argue or present evidence. Remote proceedings and depositions pose new challenges for presenting credible arguments by counsel, testimony from witness, and information from evidence. The following are some concepts that will help you increase or maintain the credibility of your arguments, your witnesses, and your exhibits.

Presenting Yourself

Your Attire. Like it or not, trial judges and jurors consider what we wear in their determination of our credibility (at least subconsciously). While the worst dressing behaviors should be a thing of the past, counsel still dress in attire in virtual proceedings, particularly hearings, that they would have never previously considered wearing to a proceeding in the courthouse. Your credibility is judged no less in a virtual hearing than it is at an in-person hearing. Dress as you would as if you were standing in front of the judge in the courtroom, including below the waist (put your pants on!).

Your Video Stream. Empirical research in many fields, such as film and television, and education (virtual classrooms), generally conclude that the subject speakers were rated as most trustworthy when videoed from eye-level, and that low and high-camera angles were often associated with less trust. [1] & [2]

Before your remote Zoom proceeding begins, open the video conferencing app and set the camera so that you are eye level with it—meaning that your entire face is captured evenly between the top-to-bottom and the right-to-left sides of the frame. If you cannot see your entire face, move the camera, or reposition your placement from the camera until you can see your entire face.

Also, if your chair leans back, look at how you appear while both sitting up and leaning back. You will inevitably lean back after you have completed your argument or that amazing cross-examination. When you do, the camera angle on and the positioning of your face in the frame will change. You will still likely be on screen and will be watched and judged even though you may no longer be the primary focal point of the judge or the jury at that point. Having only your eyes and forehead visible while listening is not a good or credible look. Be prepared to adjust your camera accordingly, or simply always sit up!

Most video-conferencing applications allow the user to change the participant’s name on their video feed. Before the hearing, update your name to state your name, your client’s name, and your client’s respective role in the hearing or trial. For example, “Jane Doe, Counsel for Plaintiff Acme Co.” or “John Doe, Counsel for 12(b)(6) Movant-Defendant XYZ Inc.” [3] This is particularly helpful in proceedings with several lawyers, parties, witnesses, and pending motions being considered by the court. Even in hearings with only two advocates, this helps the judge focus on your argument—rather than trying to remember or determine for whom you are arguing.

Your Video Background. What does the background in your video feed say about you? After setting your camera angle and position, check the entire view without you in it. You will inevitably lean over to retrieve something or forget to turn off your camera before you get up during a break. Can you see that leftover wine bottle from the office party? Is that a recent political poster? Is that tree outside your window swaying in the spring wind? These are all distractions from you and your argument or examination. And, in jury trials in particular, personal items may raise adverse opinions in jurors which they otherwise would have never considered. Your entire background should be as neutral as practically possible.

Avoid virtual backgrounds. They create lighting affects around the participant—particularly when they move—making it apparent that the background is not real. While maybe not a significant detractor, it is still a distraction from you and your argument or examination. Virtual backgrounds may also take up additional bandwidth, potentially causing lag or other problems with your video and voice stream.

Your Microphone. Making a comment while your microphone is on that is critical of the judge, a witness, or an opposing party, or which you just should not have said, could damage or even kill your credibility. Most video-conferencing applications allow your microphone to be set on “mute” by default. When you want to talk, you merely press the space bar on your keyboard (or find the respective keyboard shortcut for that application on your respective operating system). This approach does not generally work when examining witnesses or making lengthy arguments, so set a reminder on your monitor to mute your microphone once the examination or argument is completed.

Your Presentation. It is intuitive to look at and speak to the judge’s video frame while making your argument. However, making “eye contact” with the judge at appropriate times and certain intervals requires that you look at your camera, not the video stream. Of course, seeing the judges during your argument is also important to reading their “body language” and whether you should, for example, adjust your argument or your tone. Place your camera on the top sector of your monitor, as close to the screen itself as practical. Before your argument begins, “pin” the judges’ video frame, which makes their video frame the largest on your screen. While not perfect, it allows a better opportunity for you to view the judge out of your peripheral vision while you are speaking to the camera. When examining witnesses, you should “pin” the witnesses’ video feed because your focus should primarily be on the witnesses and how they are responding to your questions.

Remember that everyone participating in the Zoom hearing appears on the judge’s screen – up close and personal! Video-conferencing applications during a remote proceeding amplify the effects of head shaking, eye rolling, sighing, and other attempts to indicate one’s personal belief about an opposing party’s argument or a witness’s testimony. Such actions never work with judges or jurors, and usually cause irritation or even disdain, for those who believe their biased opinions are more important than these neutral fact finders.

Being prepared in general also weighs significantly on your credibility during Zoom hearings, or other virtual trial or conference. Besides the obvious, being prepared includes at least the following:

Knowing the local rules and your judge’s particular rules or recommendations for remote trials and hearings;
Ensuring that you have the current software update to use the video-conferencing application and the current link to access your remote hearing, particularly if the link you received is more than 24 hours old;
Testing your video and audio settings to timely resolve any issues in advance of the remote proceeding; and
Logging in to the virtual proceeding with sufficient time to correct any login, video, or audio issues before the set time.

Tips for Presenting a Witness with Credibility on a Zoom Hearing or Trial

Presenting Your Witness

The credibility of your witnesses is determined generally by the judge and jury by the same standards that you are being judged.

Their Attire. Lawyers have different ideas about how their witnesses should dress and that is a topic for another time. Regardless, your witnesses should be dressed properly. This requires discussing the proper attire with your witnesses before the day of their testimony—as many witnesses do not know how they are expected to dress. Many lay people do not view a remote hearing or trial with the same level of seriousness and decorum related to attire as one taking place in a courtroom.

Their Video Feed. The recommendations (if not requirements) as discussed above on this topic equally apply to your witnesses. While testifying, the witnesses will be the center of the judge’s and jury’s attention. Their video stream should center on their face and capture their entire face, as discussed above. This too requires a walk-through with the witness at least a day prior to their testimony.

Their Video Background. Where possible, you should try to have your witnesses in your office or otherwise close enough to you so that you are able to help control all aspects of their virtual presentation. Regardless, this requirement also necessitates that you do a virtual conference at least a day before the testimony so that you can see the witnesses’ background and work with them on their background if needed and appropriate.

Their Testimony. You should instruct the witness to primarily focus on your video stream while answering your questions and on opposing counsel’s video stream while being cross-examined. When working with witnesses on their testimony prior to the virtual hearing or trial, watch closely to how they testify. Are they fidgety? Do they move in and out of the video stream? Work with them on the camera angle, the chair they are sitting on, the camera’s placement, et al. to reduce or eliminate any aspect that distracts from their testimony or which may hurt how their credibility is perceived.

Importantly, work with your witnesses on exhibits. For your examination, your witness should have a hard copy of every exhibit that you anticipate that you may discuss with them. Further, you should request that opposing counsel also provide at least electronic copies of the exhibits on which they anticipate cross-examining your witnesses. Consider including such a requirement in your scheduling order. [4] And you should also work with your witness on how to deal with exhibits that they may only see on the screen. For example, you need to let them know that they are entitled to see and recognize the entire exhibit before answering a question about one sentence on page 14.

Presenting Your Exhibits

The presentation of exhibits in a remote Zoom hearing, trial, or deposition will be one of your most difficult tasks—particularly if you have not prepared in advance.

The Hard Copies. Prior to the day of the Zoom hearing, trial, or deposition, you should have prepared a copy of all of the documents on which you anticipate that you could use, including rebuttal. You may not think of every document; however, the more you anticipate, the better your presentation will be and therefore the better your credibility. You should have a hard copy, and you should—at a minimum—provide a hard copy of your exhibits, other than for rebuttal, to the court, the court reporter, and your witnesses. Local rules may require a copy be provided to opposing counsel, and professional courtesy requires doing so as well.

The Electronic Copies. All the exhibits which you anticipate that you could use should also be in electronic format on your desktop. Preferably, these documents should be in one folder for that specific Zoom proceeding. Naming your exhibits is very important as well. Spending several minutes looking for an exhibit because every PDF file just has a random assigned bates number to them will irritate the court and jury—all of which will impact your credibility.

While naming your exhibits as Exhibit 1, 2, 3, et al. is better than doing nothing and can be helpful when there are a limited number of exhibits, the better practice is to also give each exhibit PDF file a short name which describes its contents. This will help refresh your memory when, for example, you suddenly go blank after the witnesses says something you were not expecting. Keep in mind that opposing counsel may also view the naming conventions on your exhibits; as such, make sure your naming of an electronic file does not disclose information that would be protected as work-product privilege.

Critical to your credibility is the ability to work with electronic exhibits during the remote proceeding or deposition. The inability to do so with some level of knowledge and skill may give the court and jury an opportunity to view your credibility negatively. Critical to being able to work with electronic exhibits is practice, practice, practice. Have a colleague or friend join you in a videoconference using the same video-conferencing application that will be used for that virtual proceeding or deposition. These individuals do not necessarily have to participate in your practice session, and instead, they can merely accept your request, mute you, and put the application in the background. You can then practice as much as you need with sharing your exhibits on your screen and using them in the manner that you would in the proceeding or deposition.

Shared Computer Backgrounds. The background on your computer also becomes important when exhibits will be shared on the screen through the Zoom or other video-conferencing application. Is the desktop background on your computer professional? Could the background distract from your presentation? If so, change it to something neutral for the hearing or trial.

Also, what files (file names) can you see on your computer’s screen. The court, opposing counsel, witnesses, et al. may see these during your argument or examination. One way to resolve this is to have one generic-named folder into which you drop every file and folder on your screen, other than your exhibit folder/files, prior to the hearing. Then, you have only two folders on your screen, which should be separated enough so that you do not accidentally open the wrong folder or file. Having a clean computer screen and a file folder from you can quickly access your exhibits will show that you are prepared and knowledgeable on presenting exhibits in virtual hearing and trials.

Of course, if the videoconference application allows you to do so, the best method to prevent anyone seeing your desktop background is to turn your camera off in the application before you go to select the document you want to share on video. Only after you have selected the document and clicked on the “Share Screen” button do you then turn the camera back on. Of course, the document should be the only thing on the screen before it is shared.

There are numerous articles online with other concepts, hints, and recommendations about virtual proceedings and depositions. You should consider what your weaknesses may be when presenting arguments and evidence virtually and search out other articles that may help you properly present yourself, your witnesses, and your exhibits. The more you look like you know what you are doing, the more credible you will be.

Key Takeaways for Presenting with Credibility on Zoom Hearing, Depositions, and Trials

The top tips to keep in mind to help show credibility in a virtual legal hearing are:

professional presentation of yourself and your witness/client through proper attire, video stream and microphone capabilities;
clean and organized physical backgrounds as well as any shared desktop backgrounds and visible files;
organized and easily accessible documents and exhibits for presentation; and
test everything ahead of time to help ensure there are no last minute surprises to be dealt with.

A funny example of what NOT to do: https://youtu.be/76C5qIk6dmg

[1] Baranowski, Andreas Michael & Hecht, Heiko, Effect of Camera Angle on Perception of Trust and Attractiveness (paywall), 36 Empirical Studies of the Arts no. 1, at pp. 90–100 (Jan. 2018). “[A]ctors were rated as most trustworthy when filmed from eye-level …” and “… [l]ow and high-camera angles were equally associated with less trust. *** The most likely explanation for this phenomenon is that participants perceive eye-level communication as the most even in terms of power distribution.” Id. at pp. 90–100.

[2] Ramlatchan, Miguel & Watson, Ginger S., Enhancing Instructor Credibility and Immediacy in the Design of Distance Learning Systems and Virtual Classroom Environments, The Journal of Applied Instructional Design, 9(2), at p. 12 (July 2020). “Students who viewed video created from the eye-level camera rated the instructor’s credibility and immediacy higher than students who viewed video from the camera positioned above eye-level.” Id. at p. 6.

[3] All applications either have specific character limits or the length of the name is inherently limited by screen size. Consider ahead of time the best way to identify your client given such limitations.

[4] At a minimum, you should require opposing counsel to provide you, at the same time as they show the witness, an electronic copy of that entire exhibit, just as would occur at a deposition in-person.

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