Podcast - The Remote Witness: Preparation Process

Dan Small: This special "Remote Witness Preparation Podcast" series is devoted to some of the challenges posed by the proliferation of remote witness testimony in this COVID crisis and beyond. In the first episode, we discussed how, without the immediacy and direct connection of a face-to-face meeting, we need to expand our opportunities to effectively communicate what a witness needs to know in this difficult and unnatural environment. In this episode, we'll address some specific ideas on the process of preparation.

The Rules Booklet: Supplement the Spoken Word

First, the rules booklet. Even as the author of the ABA's manual on preparing witnesses, I realize it's a little long for most witnesses. When preparing my own clients, I've created a useful binder with just a page or two on each of the 10 rules for witnesses that are covered in the ABA manual, and also covered in a separate podcast series dedicated to the 10 rules. I use it when sitting down with the witnesses to prepare so they can have something in their hands and something to take home and review later. It's hard to learn effectively only using one of our senses, listening with our ears. It's better for people to have something to read, to hold and to consider after the fact. That need to supplement the spoken word becomes even more important when we are even more limited by the narrow constraints of remote communication. Whether it's just audio, or audio and visual, if you can send your witness a rules booklet, as we call it, they can have it in front of them during your preparation. Teach them to use the booklet to keep notes, have it as a reminder and review it prior to the real remote testimony.

The Issues Outline: Helping the Witness Stay on Track

Second, the issues outline. With the witness being remote and likely less focused and more easily distracted, it may be helpful to prepare and provide the witness with an issues outline. Basically, this is a written summary or overview of what the issues are, what documents relate to them and perhaps what their likely responses are based upon prior discussions and other materials. It is not a script. I am not a believer in providing witnesses with a written-out script. Unlike professional actors and actresses who spend a lifetime studying, most witnesses are just not good enough at memorizing a script, speaking it naturally and sticking to it. Rather, this is just a summary outline to help keep them on track.

Privilege Issues to Consider

Obviously, one part of the decision as to what to send your witness is the issue of privilege. If the witness is a client and this document comes to them in the form of a memorandum from you to them, it should be privileged and not discussed or disclosed in testimony. If the witness is not a client, what you send them may be discoverable. That does not necessarily mean you shouldn't send it, but rather that you should carefully consider what goes in it and think about the risks of disclosure. If you do provide an issues outline to a non-privileged witness, it is essential to prepare that witness for questions about the outline: that it's not a script, that no one is telling them what to say other than the truth and that counsel specifically asked them to let you know if there are any mistakes in the outline. This is critical advice.

The Exhibits Binder: Get Used to Handling Documents Remotely

Third, let's discuss the exhibits binder. Technology is great, but also risky. If there are key documents that you need to go through with your witness in preparation, consider putting hard copies of them together in a witness binder of exhibits and sending it to your witness in advance. It may make it easier to work on them and get your witness familiar with them than attempting to do it on the screen. Get your witness used to handling documents remotely — clearly identifying what it is they're looking at and listening carefully to instructions as to where to go in the document. At the same time, remember rule nine in the 10 rules for witness preparation that we've already referenced. Remind them to read the entire document, not just the one word or phrase that the questioner wants to highlight. This might take time during remote testimony, but assure them that they are allowed to pause to read the entire document, just as they would be allowed to do so in a live courtroom environment. If the actual testimony will be using technology to show the documents at some point, your preparation process needs to transition to using that specific technology. My partner Brian Koch successfully prepared witnesses using the "shared view" feature on Zoom. They were able to go to specific areas of the documents to cover, and it ended up being almost as efficient as meeting in person. Be sure to make sure that your witness feels comfortable with this process and doesn't see it for the first time when there is a judge or a jury present.

The Dry Run: Even More Critical for a Remote Witness

Fourth, the dry run. As discussed in Episode A of the special podcast series on a remote witness preparation, I'm a very strong believer in the importance and the value of doing an extensive and realistic dry run with every witness. With a remote witness, that becomes even more essential. The question and answer environment is an unnatural one, but layering on technology makes it even more so. No witness has likely ever experienced a remote question and answer process, and you should not allow them to experience it for the first time in the real proceeding. A dry run can help them to understand and get used to the rhythm of the process, as well as the difficulty of listening and focusing so intently on an image on a screen and a voice coming out of the ether. Something as simple as determining if their Wi-Fi is strong enough to use the computer audio setting, or if they need to dial in and use their cell phone audio, can be critical to uncover in a dry run. If you do a dry run remotely, consider the best ways to use it to help your witness learn. A video conference dry run, depending on the technology, may allow for the possibility of taping the video so that you can then play back portions of it to show the witness what they look like and what they have done right and wrong. Or, as we sometimes do with a live dry run, have it transcribed, either live or later on tape, so that you can show the witness excerpts to help them understand the rules and the process.

The Old Rule: Smile, You're on Camera

Lastly, I think the old rule of, "Smile, you're on camera," is most applicable in this situation. In live testimony, it's easier for the witness to understand where to look and how to act. Sitting at home or in an office by themselves, it's easy for a witness to forget. And yet, appearance and credibility matter just as much or more on camera. Help the witness understand that everything is exaggerated on camera — small movements, where you're looking, what you're drinking — all are magnified to the audience, which is focused on such a narrow view of the witness. Therefore, there are some key reminders.

Look Up

First, look up. When there's a live body standing or sitting in front of the witness, it's easy for them to remember to look at them, to look up. On camera, it's too easy to let your eyes and your head wander. Looking down, looking away, all that can be interpreted as signs of either disinterest or dishonesty. Keep focused.

Face the Camera

Next, face the camera. In a conversation, if you want to make a point, if you want someone to believe you, we all know that it's important to look them in the eye. The same is true for a remote witness. Eye contact remains a key part of maintaining credibility. That camera, however small it may be on your computer, is the questioner or the judge or other fact finder. Look right into it and tell them the truth. You may even want to suggest that your witness place a book or two under their computer to raise the camera to natural eye level, something to review during your dry run.

Don't Fidget

Also, don't fidget. The more things that the witness has in front of them, the more tempted they'll be to fidget with them, to play with them. Papers, cell phones, paper clips, anything and everything should be swept aside to allow for complete focus on the business at hand. If the witness either has notes in front of them or takes notes, it's distracting and the other side will likely ask to see them. Don't do it. If the witness needs a drink of water, that's OK, but the witness should make a separate process with a clear beginning and end. Tell the camera, "Excuse me, but I need a drink of water." Pick up the cup — by the way, have a solid, hefty mug handy so it doesn't tip over easily — take a drink, put it down, put it aside and then turn to the camera and say, "Thank you. I'm ready to keep going now."

To prepare a witness for a remote interview or testimony, counsel must carefully consider both what makes preparation more challenging and what makes the actual testimony more challenging. Good preparation has to consider both aspects. Being a witness is unnatural, and talking to a camera is unnatural. Put the two together and you increase the challenges of the experience exponentially.

Future episodes of the special "Remote Witness Preparation" podcast series will address remote depositions and remote trials.