Client Confidence in Virtual Depositions

Best Practices for Remote Deposition Success

- Written by Matthew Landon Evilsizor

“Subtle signs and movements can portray very different outcomes leading to misrepresentation and misjudgment from the personal lens of each jury or spectator.” 918 F.2d 828, 830 (9th Cir. 1990) (quoting Holbrook, 475 U.S. 560 at 572)

Depositions are designed to assess the deponent’s credibility as a witness. This veracity is a cornerstone of a case - validity and belief are essential. Yet a deposition is not something the average person does often. Maybe just once in their life. Who is confident, empowered, and highly capable on their first go at something? Naturally, there is apprehension, stress, jitters, second-guessing, and a range of other small occurrences that greatly misrepresent the true intent of the deposed. These communication errors lead to perception bias by the observer (or jury) resulting in an incorrect assumption of that speaker and their overall credibility. Worse yet, this can occur well before any words have even left the mouth of the deposed!

This scenario is entirely avoidable. With so much at stake, it’s essential clients are empowered to their best possible outcome, and that occurs through a thorough and holistic set of deposition preparation, on-camera training, and communication coaching. This isn't legal advice, this is human communication preparation that educates the deposed on the details that level the playing field for a fair and just deposition. Otherwise, the opposing counsel holds all the cards as they know how to leverage this experience inequity.

You see, there are dozens of small details and markers we subconsciously use to validate the truth, authority, and authenticity of someone as they speak. We as a society have built these validation signals over thousands of years as our visual processing abilities developed long before language was even created. These virtual cues are a hardwired response to our belief in the speaker’s words. During the testimony, as well as in trial, these tiny subconscious perceptions greatly affect how that person is perceived and if they are believed.

Think about it, would you do business with someone with whom you are uncomfortable or apprehensive? Of course not! Yet when we are unable to validate people's words with these communication trust signals, that's exactly what's happening- apprehension of the unconfirmed truth! It's well documented that this resulting apprehension greatly diminishes the listener’s positive perception of the speaker and greatly lowers their trust and confidence in that person overall. Leaving them exponentially less likely to believe or “buy-in.”

Our work is to remove these barriers, be it on-camera in a remote deposition or live in front of judge and jury. To overcome this misrepresentation it's important to work through all the preparation details that result in confidence, allowing them to communicate as their true self, with composure and authenticity.

In this article, we will touch on the elements that affect these perceptions, with insight on how to position the client for optimal outcomes in a virtual deposition and beyond.

Our three main subject categories will discuss deposition

• Technical Preparations,

• Physical Preparations,

• Best Practices

Technical Preparations

Each of these steps needs to be worked through ahead of time. Nothing derails a confident conversation like unexpected technical difficulties. Most all technical issues can be ironed out and prepared beforehand to ensure a fluid process day-of, resulting in greater confidence when it matters. Each of these Sub-headers below is individually important in their own right. Pay attention to each individual as you can either have death by a thousand paper cuts or improved by many small positive choices. Here’s to your success!

Internet Connection

If you don't hold enough bandwidth to stream HD video other solutions/locations should be prepared. It’s important to have an internet speed of at least 20 MB as a minimum requirement for stability. If possible, hardwiring the computer with an ethernet cable can standardize the stream. If none of the above is possible, consider utilizing a mobile phone (if the camera is of good quality.) as a cellular signal can often be more stable In areas where the wifi is unstable. It can also be a good idea to prepare the main method (the computer for example) as well as a backup solution in case of unexpected struggles at the moment. Having the phone prepared as a backup can build a lot of confidence in the back of the mind that things will run smoothly. One way or another, internet stability is needed to even be part of a virtual deposition.

Audio

The audio testimony needs to be clear, stable, and at a proper pace. Make sure to minimize any surrounding sounds and anything that may distract from the testimony. Wear headphones or a Bluetooth earpiece to separate out the audio channels (otherwise, there is a feedback loop of the microphone picking up the speaker and it creates an echo as the sound loops). A separate USB microphone is also a great solution for virtual depositions. The more clarity that can be heard in someone’s voice, the more the nuance of tone can be deciphered by the astute receiver.

Learn more about audio for virtual depositions,

Lighting

Body language and facial expressions must be clear and understood to be believed. Over millennia, we have come to read the speaker’s eyes and body language as subconscious trust signals in face-to-face communication and these subconscious requirements remain true to this day in person, as well as in video calls, Zoom meetings, and virtual depositions. If these trust signals aren’t able to be perceived (which the average person does in 17 ms), then without even knowing it, viewers are left feeling apprehensive due to the lack of visual validation.

Visualize a person in the shadows offering you a piece of candy. Do you instantly take candy from them?! No. Why? Your brain doesn’t have enough information to validate the trustworthiness of this interaction to ensure you will be safe. The unknown makes us apprehensive. This apprehension greatly diminishes our confidence in the speaker and by nature their offering. Making the listener far less likely to want to receive what they are offering.

To put it another way, when the facial expressions and body language are well lit, the listener can see these trust signals and will be much more confident in the authenticity of the communicator. It might seem like a small thing, but being able to clearly see the speaker’s/deposed’s eyes can make or break their perceived believability. When the eyes and body language can be clearly deciphered it removes several of these roadblocks of apprehension, making the speaker come across as more knowledgeable, authentic, authoritative, and believable.

A good test to ensure the face is well lit is to make sure you can clearly see the insides of the eyes (space between eyes and nose under the brow.) on-screen as this is the darkest spot on the face. See our recommendations for affordable lighting kits and learn more about lighting virtual depositions.

Visual-Environment

Everything that can be seen on the screen is an extension of the person. Be it a beautiful painting, a bunch of unfolded laundry, or a half-eaten piece of pizza on the desk. It’s important to consider all angles of what the observer on the other side might see. The area should be minimalist, clean, and free of personal, family, or private information you don’t want to be revealed. As an example, a personal injury claimant probably shouldn’t have a photo of themselves 30 ft in the air jumping motocross in the background during the virtual deposition. Remember, this remote statement can be played in court months or years down the line. Additionally, ensure your tabs or desktop doesn’t show files or other visible sensitive documentation or information which could affect the case or inadvertently disclose information. We don’t want to allow the opposing counsel a way to manipulate the narrative, and these little details are an important consideration.

Framing

Body language is another subconscious trust signal society uses to assess authentic communications. When the body language is congruent with what the speaker is saying, the listener is more likely to concur. To properly pick up that kinesthetic nuance, there needs to be a full portion of the torso in the frame to be able to see the shoulders and articulation of the hands. The head should be centered in the upper third of the frame. Additionally, the frame should be perfectly flat so the speaker isn’t looking down or up “at the camera..” Learn more about proper camera framing for virtual depositions.

Perception Preparation

Tone and Pacing

Tone, inflection, diction, and pacing make a large impact on how we “hear” what is being said. In stressful times the voice is likely to raise and quicken. These attributes are also associated with dishonesty. See the issue? It is necessary to practice pacing, tone, diction, and articulation to ensure the truth Is being represented correctly. Additionally, vocal pitch and inflection affect your meaning as well as audience reception of what you say, so It’s important that your tone reflects your intention. Additionally, the speed at which we speak, especially for non-native English speakers, greatly impacts audience comprehension.

Body Language

“If looks could kill”, is a common colonialism that perfectly defines the importance of understanding body language and how it is perceived.

The key to reading body language is being able to understand a person's emotional condition while listening to what they are saying and the circumstances under which they are saying it. That is what all of us do when we listen. We are matching the body language to the verbal queues to create more rich information and validation during the conversation.

So much information can be pulled from the many nuances of body language. A simple example may be a person who is self-conscious of their weight will often anxiously pull at their shirt or dress around their stomach area. This is very telling, yet this habitual tell often goes unnoticed by the speaker to their perceived detriment. Each of the morsels of body language reading gives valuable information about the communicator and their perceived mentality. Now let’s put that nugget of value at scale… It’s said humans can read 250,000 different body language elements.

Albert Mehrabian’s pioneer research in body language assesses the total transmission of a communicator’s given message as;

• 7% influenced by the words. (what is actually said).

• 38% influenced by the voice (tone modulation of the words being said).

• 55% influenced by non-verbal signals (body language, wardrobe, eye contact, overall demeanor)

So as we can clearly see, it’s not what you say but how you say it. According to the U.S. Supreme Court, triers of facts may judge a witness “by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief” (Mattox v. United States 1885, p. 242-243; see also Coy v. Iowa 1988.)

When body language is incongruent with vocal tonality this subconsciously leads to less trust in a listener, greatly skewing their perception of the speaker. The MIT Media Lab concluded that it could predict the outcome of negotiations, telephone sales calls, and business pitches with 87% accuracy - without even listening to a single word of the content, simply analyzing participants’ body language! In other words, negotiations, legal cases, job interviews, sales calls, and any other social interaction are greatly influenced by non-verbal queues. Needless to say, we need to be cognizant of each of the non-verbal aspects of our expressions and overall physicality to truly assess the nuances of our behavior. and how they are perceived in context Mitigating inappropriate body language, tone, demeanor, or facial expressions that may misrepresent the intent. Can only really happen with observation, practice, and preparation. There’s no way to get around putting in the world. client confidence = client success. Simple as that.

There are 4 categories of Body Language;

1. Facial: Mouth position, eye movement, any facial expression.

2. Body: Posture, body position, hand gestures, tapping your foot, and other kinesthetic movements.

3. Proxemics: The spatial distance between people interacting with one another. (example: when someone gets in your face to yell at you).

4. Paralanguage: Features of the voice; including pitch, speech rate, speech intensity, vocal fluctuations, and errors or fluctuations in speech fluency. (these can easily misrepresent someone’s truth in an unprepared/unpracticed circumstance).

To diminish pre-deposition jitters, It can be very helpful to work through questioning that could be asked. There are millions of potential questions and they can be all over the place so practicing will give greater confidence for the unknown and lead to more authenticity in your tone and body language. Additionally, we recommend some grounded breathing exercises to center the body, minimize the output of cortisol, and keep your thinking clear, unaffected by the chemical flush of stress.

Wardrobe

A new Princeton study published in Nature magazine study found “Impressions of competence predict important real-world outcomes, including electoral success and chief executive officer selection. In this insightful study, a random group of test subjects rated the competence of faces presented in frontal headshots. Faces were shown with different upper-body clothing and they had to decide if the person looked ‘richer’ or ‘poorer’, The result was that the same face, when seen with ‘richer’ clothes, was judged significantly more competent than with ‘poorer’ clothes. The effect persisted even when perceivers were exposed to the stimuli briefly (129 ms). They were instructed in this instance that the clothes were not important and to dismiss the clothes entirely - they were even given considerable benefit to forego a wardrobe bias. Yet the perception sustained. These findings demonstrate the uncontrollable effect of economic status cues on person perception. The lead of the study had this to say “ These perceptions add yet another hurdle to the challenges faced by low-status individuals. It’s quite impactful how proper attire and overall aesthetic can affect perception.”

Now, this isn’t to say you need to run out and buy a five thousand dollar suit. “Richer” clothes are not simply about the name brand or price. The defining factors of “richer” clothing are defined by the material quality and cut of the outfit, as well as the and overall polish of your finished presentation. The proper wardrobe preparation is professional or business casual with minimal to no jewelry. You want to be physically comfortable in what you wear while still representing yourself professionally. If it’s a virtual deposition, don’t wear any complicated patterns that could distort the camera. Solid colors in muted or rich jewel tones like blue, purple, gray, navy, coral, or green tend to work best. Consider what color may be best for your skin tone. Make sure to properly comb your hair and trim any extra hairs - ears, nose, neck anywhere potentially visible on camera, Makeup should be subtle and authentic.

Virtual Deposition Insight

• Practice, Practice, Practice Confidence comes from knowing what to expect and being able to let go of the unknown. You need to be prepared on a technical level to know what to expect day-of the virtual deposition so you are composed, concise, consistent, confident, and never blindsided.

• Clear language and intent Ambiguous language can be misconstrued. A clear intent of language can improve many aspects of communication, evoke more confidence from the communicator, and more trust from the viewer. So think through your words carefully. Don’t say more than you need to and only answer the question presented with no further information.

• Concise Remember, when people are nervous they tend to ramble and not think as clearly - like while being deposed. It’s necessary to spend time going over and practicing scenarios and language with your counsel so you’re aware of the questions, language, tactics, and methods that may be presented during the testimony. This practice is to help you while deposed, to hear and respond to the question asked. And let’s say it again… not say more than you absolutely need.

• Keep Your Thoughts To Yourself Before, during, and after the deposition, keep off-the-record conversations with court reporters, attorneys, and other attendees as limited as possible.

  In the same vein, prior to, during, and after the deposition, do not make comments about the plaintiffs, attorneys, co-defendants, or anyone else associated. No good can come from this.

  Additionally, leading up to the deposition, do not speak to anyone about your upcoming remote deposition testimony. This can have a range of negative outcomes that aren’t worth such a simple lapse in judgment.

• Examiners Aren’t Your Friend. They are working to get the best outcome for their clients. Pulling information from you in any manner possible that may benefit their position. They may seem very nice and friendly to gain your trust and position it against you. While some more intense lawyers will go out of their way to try and elicit a reaction from you. This could include rapid-fire questioning, objecting to every question, cutting you off and interrupting you, shouting at or demeaning the other lawyer, using aggressive tones or strong language, and any other method that could cause you to act out and affect your perception. Though this isn’t the norm, it’s important to be aware of these tactics and maintain a calm, level demeanor no matter the situation. Only you can control your reaction and it’s essential to give yourself the time required to present a concise, clear, and confident response.

• Watch What You Say As long as you’re camera and/or microphone are on…you’re on the record. Be very conscious to keep private and proprietary information to yourself. In other words, don’t spout your Google password while navigating technical issues pulling up an exhibit…your password will be put on the record.

  If you do need to take leave or an interim break, turn off your microphone and camera until you return. Additionally, on most videoconferencing platforms including Zoom, you can simply hold the space bar to temporarily unmute yourself while you speak. This can help to keep your communications “conscious”.

  Additionally, listen for overarching or “absolute” language. “That’s all the problems you’ve had”? “Do you ever get headaches?” “Did your back ever hurt before that?”. These are meant to mislead, next thing you know they have dug up a doctor’s record from a decade ago showing you complaining of back tightness during the flu and the playing field changes.

• Stay Calm Don’t be combative. Don’t get wrapped up in arguments or heated exchanges. Don’t let the questioning attorney rile you with their tactics. They know most deposed aren’t as aware of “the dance” as they are, using this inequity to position the narrative to erode trust in the credibility of the speaker. This is a skill on which they have trained. So keep calm and don’t be gaslit, or misdirected by an opposing attorney’s tactics.

  Remember you’re on camera and jokes rarely come across well being read back from the record. So do not make jokes, sarcastic comments, or make any opinionated gestures or faces.

  A great way to maintain calm is to be cognizant of your breathing and maintain a consistent and deep breathing pattern. In most instances, if you begin to stress (you feel your heartbeat increase, you begin to sweat, etc) it is directly associated with less breath intake, ie: a shallow or stifled breath. So make sure to keep breathing and stay present. This will be your single greatest tool in accomplishing all the talking points in this article.

• Listen for Instructions If your counsel suggests taking a break…take one. If they say “don’t answer that”…don’t answer it. If they object to a question…listen to their recommendation (if any) and take the time to consider your response more deeply.

• Pause After Each Question the Examiner Asks The main purpose of this pause is to give a window for your lawyer to object. Common objections are related to the form of the question, so give them the window to do their job and protect you against misguided language. It can even be helpful to actually look at the attorney for approval before answering each question.

  .Additionally, and almost equally important, the time should be taken to process the answer. It is better to take a few extra seconds to formulate a short, thought-through, and truthful answer than divulging or misrepresenting yourself on the record. This pause is best accomplished by taking a full breath, pausing for a beat of 2, and then answering. This length of pause should be a minimum average of 3 seconds after the question is asked.

  One of the best things about a written transcript is there is no indication of the length of time it took for the deponent to answer. So make sure you take it! Otherwise, ill-considered words can come back to haunt. So take the time needed to ground and formulate a proper response. Additionally, do not let the examiner try to rush your answer or cut you off. If you are cut off, allow them to finish their question, Then acknowledge you were cut off, and finish what you were originally saying for the record.

• Read Carefully If an exhibit is part of the question, always ask to see it before answering. Thoroughly look it over for accuracy as best you are familiar with. If you view a discrepancy make sure to verbally indicate it for the record. After you have thoroughly ingested the document, ask the examiner to ask the question again. Do not go above and beyond and point out anything noteworthy about the document like key language, only speak to the question asked and add nothing more. If you aren’t familiar with the exhibit, say so. The examiner may proceed with their questions, but the transcript will now contain this information.

  When dealing with email Communications, pay very close attention to the dates, authors, and recipients of each email thread and be aware of to whom you are saying or sending things.

• Do Not Answer Unclear Questions A deposition’s purpose is to uncover information that will be useful to the case. The examiner is not your friend. This isn’t a conversation. Listen carefully to the questions and if you don’t understand the question, or think the intent is unclear, ask the questioning attorney to rephrase the question. Do not let them put words in your mouth. Do not answer questions that include incorrect facts or statements of which you have no knowledge. Don’t volunteer information or help the examiner in any way by speaking about things you are not completely confident. Do not accept homework assignments from the examiner or offer to provide additional information at a later date. Do not explain the basis for your response or indicate why you cannot answer a question as posed. In other words, be intelligent with your word choices and don’t say more than you need.

• Be Honest This is an important way to live life in general, but during a deposition, it’s a legal obligation. Prior to the virtual deposition, the Court Reporter will place you under oath. Providing false testimony while under oath is perjury. That’s a big deal, and It’s not worth it to try and misrepresent the truth as these details are often revealed by other documents, discovery materials, and conflicting testimony. Additionally, there are ethics rules that may compel an attorney to make the court aware if they know the witness has testified falsely. So it’s intensely important to prepare ahead of time to know how to best present your information.

• Maintain Eye Contact If your eyes dart all over the place you will look confused or worse yet like you are searching for a lie. Keep eye contact and a confident, steady gaze to improve credibility.

• Speak Slowly and Clearly This helps the court reporter accurately transcribe your testimony and give’s you time to choose words mindfully. Make sure to answer all questions audibly, not with a gesture that can mean different things to different cultures and/or could be incorrectly depicted on the record.

• Short Answers are Better Do not volunteer information. Often a simple “yes” or “no” is all that’s needed. Testify only your personal knowledge. Do not guess, assume, or speculate. If you have to explain, keep the answer as short as possible. As long as it’s true, “I don’t know” or “I don’t remember” are appropriate answers.

• Ask for a Break if Needed It is essential you stay on top of your game during the entire virtual deposition so take a break whenever you feel it’s needed. You can request a break at any time except for when a question is pending. It’s common to receive a break once an hour as a default.

• Awareness Don’t get too comfortable just because you’re sitting at home in a virtual deposition. This is still a formal legal proceeding and should be acknowledged with the same reverence as an in-person deposition.

• Additional Thoughts

  • On the record, announce if there is anyone in the room with you or if anyone enters the room unexpectedly.

  • Do not bring any documents to the remote deposition unless you were directly requested by your counsel.

  • Turn off your cell phone.

  • Assuming you have already made a written testimony, make sure your details are consistent. (ie: reference pain in the same place that you told your doctor. Additionally, don’t use the virtual deposition to bring up how your foot hurts, if that’s not something you’ve previously documented to that doctor.) The moral here is consistency is key.

  • In most instances, it is your legal right to look at the written transcript to check for and amend any inaccuracies.

  • Nourish yourself but make sure not to be too hungry or too full. You don’t want to be hangry, groggy, or foggy.

Conclusion

Each of these details are small deciding factors that can sway the perception of the testimony and the overall outcome of the virtual deposition. We work with the deposed until they are confident, of clear mind, technically ready, and emotionally prepared. The equation is just this simple. Client Confidence = Client Preparedness. A strong virtual deposition must have a comprehensive solution to instill confidence and calm. Learn what our expert hands-on Client Confidence Coaching for Virtual Depositions can do for you!

Legal Disclaimer:

The purpose of Client Communication Coaching with Pro Presence is to augment the human element that can affect outcomes of legal cases, in addition to your counsel’s legal advice. Pro Presence is not a law firm and our employees are not attorneys. The knowledge contained in the informational is general legal insight and should not be construed as legal advice. Pro Presence does is not a replacement for legal counsel, Pro Presence focuses on the attributes of human communication and perception and does not require case information to accomplish its purpose.