Credibility During Zoom Trials, Hearings, and Depositions
How counsel can overcome new challenges
Written by Bryan Haynes and Christian Cowart
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 concepts will help you increase or maintain the credibility of your arguments, your witnesses, and your exhibits.
Your Attire. 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.
Your Video Stream. Empirical research in many fields, such as film and television and education (virtual classrooms), generally concludes 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 videoconferencing 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.
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. 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.
Your Microphone. “Mute” by default 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. Place your camera on the top sector of your monitor, as close to the screen itself as practical. Before your argument begins, “pin”3 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.
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 testimony is important, and 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. 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.
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 the documents you anticipate that you could use, including on rebuttal. 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 it will irritate the court and jury—all of which will impact your credibility.
Shared Computer Backgrounds. The background on your computer also becomes important when exhibits will be shared on the screen through the Zoom or other videoconferencing 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.
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. TBJ
This article was originally published on the Klemchuk Ideate Blog and has been edited and reprinted with permission.
BRYAN HAYNES is a partner in Klemchuk and a trial attorney who has, in his 29-plus years of practicing, tried more than 60 trials and arbitrations as lead counsel throughout Texas and across the United States. Haynes draws on his broad experience in both state and federal courts to prosecute and defend cases involving complex commercial disputes, intellectual property matters, fiduciary duty issues, corporate “divorces,” commercial insurance coverage disputes, and officer and director litigation.
CHRISTIAN COWART is an associate of Klemchuk, where he primarily focuses on trial and appellate matters, with his practice concentrating on the areas of intellectual property litigation, business litigation, and civil appeals. Cowart represents both individuals and corporations on a diverse range of patent, trademark, trade secret, and complex commercial cases, including breach of contract and breach of fiduciary duty.