A year ago, taking virtual depositions from your home was likely not the standard. Yet due to COVID-19, depositions from your home office, dinner table, or bedroom have become the norm for the forseeable future. With the advancement of technology, it is possible to hold virtual depositions in an efficient and productive manner. Unfortunately, you are at a disadvantage with virtual depositions of adverse witnesses… especially when it comes to assessing their behavior.
In one-on-one interactions, there are two lines of communication: verbal and nonverbal. Verbal encompasses the things we say while nonverbal relays the things we feel. We often obsess over the verbal and give little conscious regard to the nonverbal. Non-verbal communication is commonly referred to as body language. Body language offers a form of communication that is far more connected to our emotions, thoughts, and feelings than verbal communication. Because of this, it is far less easy to manipulate than words. Therefore, each time we are unable, untrained, or unwilling to analyze body language, we are missing an opportunity to gain valuable knowledge and apply it.
Even before COVID 19, assessing body language was a difficult task. Comprehensive knowledge of the various indicators of deception isn’t prevalent among attorneys. Further, understanding context and establishing a baseline are pillars of reading body language that are skills that are only understood by some and mastered by few. Before COVID-19, attorneys were already missing or misidentifying a plethora of non-verbal information in witness, and even client, interactions. With virtual depositions, this issue is multiplied.
Attorneys don’t have the ability to assess mood or body language or influence control as easily as in-person depositions. Due to the many tasks the attorney has at their desk when deposing a witness virtually, their gaze is seldom upon the witness. Reading and handing notes and evidence documents without a Trial Presentation Specialist makes the process even more difficult. Writing down notes further takes the attorney’s eyes off the witness. Due to this, the attorney may miss an extensive amount of information from the witness that could have a direct impact on the outcome of their examination and case.
Kim Passey, Trial Presentation Specialist with Trial Support, LLC (https://www.trialsupport.us/), told us the main issue attorneys are having with virtual depositions.
“It’s not as intimidating on webcam than in person… The attorney is not able to be dramatic in their presentation.”
Further, the intimidation factor is helped by keeping relatively quick pace in questioning. But too much clutter can harm this.
“Using outlines slows down momentum” says Passey.
To remedy this, Passey recommends the assistance of a Trial Presentation Specialist. Doing so, they can help the attorney deal with notes and evidence in order for the attorney to maintain all-important eye contact with the witness.
According to Passey, there are other challenges with virtual depositions.
“You can’t control the room and don’t know what is going on outside the camera’s view. The witness could be texting their attorney… You can’t see body language between the two (as you would in person)”.
This indicates a need for standardizing the virtual deposition process in order to have better control over the witness and to increase the visibility of body language indicators.
Before the deposition begins, the adverse attorney should request a stipulation that requires the witness’ camera to be able to view their bodies from the elbows up in order to get a more favorable reading on body language. This would also help with the issue of the witness feeling overly comfortable and with little pressure.
So now the attorney has more of an advantage, but are they maximizing it or even using it at all?
In steps the witness observer to further to lend their expertise to the virtual deposition. The witness observer will be able to assess the available indicators of deception, along with establishing a baseline of the witness.
When possible, refrain from letting the opposing attorney or the witness know there is a trained behavioral observer watching them. Doing so, they may alter the behaviors that are important to get a viable baseline and to detect deception.
Much like a court reporter records the verbal questions and responses, a witness observer solely assesses and reports the deponent’s non-verbal communication and provides this information to the consuming attorney for use at their discretion.
The process is as such:
The consuming attorney or firm will send us any pertinent information regarding the witness for background information only. This information will not be used to create a bias, but will be used to determine what germane questions will be available to establish a baseline of the witness. Then we will receive an invitation to the Zoom meeting from the Trial Presentation Specialist conducting the deposition.
Upon initiation of the meeting, the witness observer will be solely focused on the witness, establishing a baseline and analyzing changes in behavior. The witness observer will also listen to the questions, how they are asked, and analyze if the question best served what the consuming attorney wanted to know based off of the deponent’s verbal and non-verbal response.
Via private chat, we will provide live assessments and consultation to the consuming attorney in regards to body language, questioning, and controlling mood where it is desired and necessary. The consuming attorney can use this information in a variety of methods at their discretion.
If deception is detected, the information can later be used to impeach the witness. According to California law, we can be called as an expert witness to testify that a witness’ demeanor had showed signs of deception during testimony.
For these reasons, using a Trial Presentation Specialist and Witness Observer will overcome the challenges of virtual depositions and positively impact your ability to win your case.
No information transmitted from Intellecture Training should be seen as legal advice. Intellecture Training is not responsible for how information we provide is used. We operate under the “observe and report” premise only. We are open to answer questions, but it is up to the consuming attorney’s best judgment to understand when and how to properly and effectively utilize the information.
Intellecture Training does not share information obtained in our work to outside sources, nor do we divulge who we are working for if it is not directly imperative toward our work with the client or requested by the court. We act as an agent of the attorney; therefore, we are shielded by attorney-client privilege in matters where the consultation is directed at the consuming attorney’s client.
As our credibility is paramount, it is important that the attorney does not attempt to influence the best judgment of the witness observer. We may elect to sever ties with the attorney or firm if this occurs.
As mandated in the Rules of Professional Conduct, to prevent any conflict of interests we will never work on a contingency basis.
We do not assess witnesses under the age of 18. Not only for obvious ethical reasons, but children are far more difficult to assess than adults.
Please be advised that as is inherent in assessing all human behavior, error rates exist. Humans are imperfect and, at times, unpredictable. As we rely upon several points of information in our analysis, virtual depositions have their own set of difficulties as noted above. With that said, it is our job to provide you with the best information possible in order for you to optimize your deposition and we take great pride in our ability to do so.
For pricing, availability, or to learn more about Intellecture Training’s services please fill out our contact form at https://intellecturetraining.com/#contact.