Podcast - The Remote Witness: Preparing for a Trial or Hearing

Dan Small: In this fourth episode of our miniseries of podcasts on remote witnesses, let's take a look at the witness issues in a remote trial or hearing. I'll use the word "trial" generically for any such process. Remote trials have been conducted before in limited situations, but they have become the new norm during the COVID crisis. And as courts and counsel grow more accustomed to it, they're very likely to continue much more frequently long after the crisis is over. Because most witnesses have developed their images of trials from TV and movies, the remote process is a very strange new world for them, and this requires careful guidance and preparation.

Preparing a Witness for a Remote Trial

Two things contribute heavily to the strangeness of a remote trial for a witness: the camera and the physical separation. As to the camera, I am from time to time asked to do television commentary on various legal matters. In a TV studio with several large cameras and cameramen and women, it's very hard to forget that you're always on camera. But when a remote witness is speaking into their computer or cell phone, often the camera is almost invisible. It's easy to forget that it's there. And yet that tiny camera is, in many ways, the most important part of the process. Witnesses have to be prepared to focus on it intently, to never forget that it's there and to speak and act as they, and you as their counsel, would want to see themselves on videotape. The physical separation can create a very odd and deceptive environment. The witness may be at home — try to avoid that if you can — at their office, at your office or in some other neutral location. There is no immediate presence of their counsel, opposing counsel or the fact finder to keep their attention. That can lead them to be much more casual and relaxed than is appropriate in a trial situation.

Dress Appropriately

First, prepare them and yourself on how to dress. They may like to hang around their house in their PJs, but not in a trial. Both counsel and witness should dress as if they were in a live courtroom. The formality of the situation, the respect for the process and the need to focus requires it.

Control the Audience

Second, prepare them and yourself for controlling the audience. My colleague Annie Gamez recently wrote a great article for the Daily Business Review on her experience conducting a two-day final evidentiary hearing in federal court via Zoom on a Hague Convention case. Many of the witnesses were at home, some outside the U.S. Imagine the lure of the situation: A family member, a neighbor, a coworker or a friend is testifying as a witness in an actual trial, but doing it from their living room or the office or wherever. "Hey, this is much better than TV, let's all go watch and help her out!" No. Counsel had to invoke the rules, sequestering witnesses early and often and constantly asking the witness who else was in the room, who were they talking to, who were they looking at and what were the other folks signaling to them. Only the frequency and directness of the questions helped to temper the situation.

Explain the Exhibits, Test the Tech

Next, think about exhibits. Find out what systems and software the court will be using or will allow. Test them with a clerk of the court and then introduce and explain them to your witness. To the fullest extent possible, use those systems in your preparation, and do a dry run with the witness of their testimony. Practice with the witness to be sure the witness knows to accurately identify the document they're looking at so everyone is literally on the same page. In addition, since the technology allows the questioner to very quickly call out a particular word or phrase from a long document, the witness needs to understand their right, and their responsibility, to slow that process down and first read the entire document. Given the difficult mechanics of dealing with exhibits in trial, it may be important to try to stipulate to as many of the documents as possible beforehand.

Have Hard Copies on Hand, Agree on Communication Methods

Finally, technology is wonderful, but it's a good idea to also make sure that everyone, including the court, has a binder of hard copies of all the exhibits, or at least the important ones. In a live trial, counsel might have one or more colleagues sitting at or near counsel table and passing notes or whispering their input during trial. Obviously, neither paper notes nor whispering may be possible in a remote trial, but you have something that can be as good or better: texting. Obviously, you generally cannot or should not use your phone to text in a live courtroom, but in a remote trial, you should set up a texting group and agree on internal texting protocols — including, by the way, less is more — so that you can communicate effectively in real time during testimony.

What to Focus on During the Trial

And then we get to the trial itself. Ideally, the goal of direct examination is to essentially set up a conversation between the witness and the lawyer, asking the questions that the fact finder would ask if they could. On direct, the questions are often not so much questions as they are prompts — prompts to move the testimony forward or prompts to move it in a particular direction. However, conversations move and flow based in part on nonverbal cues: the pause, the gesture, the movement, the facial expression, whatever it is. Obviously it is much harder to send or receive such normal signals through a tiny video camera. If you're going to be questioning a witness on direct remotely, you need to help them focus intently on picking up as much of the cues as possible and have them work with you to move the testimony in the right direction. On cross examination, of course, everything changes. Nonverbal cues become less important than the precise words of the question and the answer. Prepare the witness to avoid being distracted by anything they see on the screen and have them focused solely on the process. For the questioner, it can be much more difficult to build momentum in cross examining a remote witness. The physical distance can create a psychological distance and a barrier as well. The witness should be prepared not to help the questioner build momentum by answering too quickly or by engaging in any back and forth with the questioner. It's particularly important that the witness slow down so that everyone has a chance to be sure they heard the testimony and for counsel to object if necessary.

For a remote witness, a remote trial is a long, long way from Perry Mason or Law and Order or whatever their favorite trial image is.

Wherever they learned about trials, counsel needs to understand the challenges of this new normal and help prepare the witness to face them.