In the Pre-trial Conference, you will discuss the restrictions on the witnesses. In some districts virtual backgrounds are not allowed. The witness may be required to demonstrate that they are in a private location by turning the camera a full 360°. The witness will also be required to affirm that they will not send or received communications (snap, text or email etc.) during testimony.
So are you ready to prep the witness?
Prep in the COVID world will require more than just the substantive preparation. You will need to prepare the witness for his/her movie debut. The following is a list of topics to discuss with your witness prior to trial:
1. Review the device they will be using to participate in trial—cell phone, tablet or computer. Will the witness need assistance in using the technology? Can the witness hard wire into the internet as it is better than Wi-Fi? Is the broadband powerful enough? Preference is for the witness to use a computer or tablet. Make sure the witness can sign into zoom and the name that comes up is the witness’ proper name.
2. Location is Key: Where will the witness be located? Will it be better to have the witness in your office’s conference room where you can control the environment? Does the witness have a private area to testify for a few hours without interruption? Is there any background noise? Check the Climate noise such as a radiator or does the witness live next to the firehouse? Make sure the witness turns off all other devises and alarms to avoid any unnecessary interruptions. When using a conference room, don’t forget to disconnect the office phone!
3. Since virtual backgrounds most likely will not be allowed, what does the witness’ background look like—a nice office space? When prepping the witness, view the background—what will the jurors see? A brief list:
· no books (or at least turn bindings around)
· no sports memorabilia
· No religion symbols or political messages.
4. How about the witness’ attire? Make sure the witness does not blend into the background, nor do you want the witness’ attire to be too busy. Think solid muted colors. Needless to say, but I will, attire should be professional and no crazy patterns.
5. Think hair, make up and Lighting. Lighting is essential. The juror will need to see the witness’ facial expressions. The good thing about virtual trials is that the witness does not need to wear a mask, so make sure the lighting is good and the jurors can see the witness’ face. Lighting from behind the camera works better than overhead. Make sure there are no shadows on the witness’ face.
6. Speaking of what the jurors will see—check the witness’ camera. It should be eye level or slightly above and the witness should practice looking directly into the camera. Put a photo above the camera or a post it note so the witness can look directly at the camera. You want the jurors to feel as if the witness is speaking directly to them—eye contact! Practice with your witness speaking while looking directly into the camera. It will make a huge difference in how the witness comes across.
7. Can you hear your witness? It is suggested that the witness use a lapel microphone to catch the witness speaking even when the witness moves his/her head away from the computer. Also discuss volume, tone, and pronunciation. Remind the witness to speak slowly into the microphone.
8. Can the witness hear you? Is the witness leaning into the computer to hear you better? Noise canceling headphones might be necessary.
9. As to actually testifying, discuss how the evidence and documents will be handled. While the attorneys will have discussed this at the pre-trial conference, your witness will need to be comfortable with the documents and viewing them on the screen.
10. Discuss what the witness should do if there are technical issues. Who should the witness contact? How should the witness get in touch with the contact person –email, telephone, text message etc? Also discuss what the witness should do if someone else has a technical issue. Explain that the trial will stop until the technical issue is addressed.
11. Lastly, discuss breaks. In the pre-trial conference, a schedule will be established to avoid “Zoom Fatigue.” Let the witness know the schedule as well as what to do should the witness need a break. Practice muting the microphone for breaks.
Yes, preparing for a virtual trial may be daunting, but the extra time spent in preparation will reduce any problems during trial.