Litigation moved online in a big way in 2020, demanding that attorneys learn new advocacy skills and shed tried-and-true courtroom habits that do not work well in virtual courtrooms, remote depositions, and other online environments.
For example, the act of looking at the audience — an instinctive and powerful technique for in-person presenters — can make the speaker look furtive and distracted online.
Physical gestures that might have enhanced in-person rhetoric can look odd or land with a thud when viewed through a tiny Zoom window.
Even the act of looking at notes, or communicating with an off-camera associate, can raise unwarranted suspicions with online viewers.
This article captures some of the best practical tips shared by communications and trial presentation consultants who spoke at a recent conference on virtual trials held by the National Institute for Trial Advocacy. Their advice, in a nutshell:
- Connect with the audience through the camera lens
- Build skill with practice and review
- Cultivate a deliberate, transparent presentation style
- Know when and when not to use visual aids
- Give your best effort to judges and juries alike
For advice on technical considerations, see our prior post Technology Tips from Virtual Trial Experts.
Look at the Camera, Not the Monitor
Connecting with an audience online requires the speaker to look directly at the camera and to resist the temptation to look at the audience on the computer screen.
“The only way to make eye contact is to physically look at that camera,” Carol Sowers, a communications consultant and former broadcaster from New York, N.Y., said. “But it is the hardest thing to do.”
People are naturally attracted by the faces on their computer screen, Sowers said, noting a study that found people spent as much as 80 percent of videoconferences looking at their own face on the screen.
Looking at the screen is instinctual, but it is the wrong instinct. “Remember to talk to that camera,” Sowers said. “Really zero in on it.”
Lisa DeCaro, founder and trial consultant at Courtroom Performance Inc. in Golden, Colo., said that attempting to connect with the audience by looking them in the eye is “just plain wrong.”
“The focus should be on the people you are talking to,” DeCaro said. “That’s the first step, no matter what platform you are presenting on.”
Fortunately, she added, jurors — just like most people — are used to engaging with video screens. There is no reason why an attorney, properly trained and practiced, cannot make the same strong connection with viewers formerly enjoyed by Walter Cronkite and other newscasters. People accept connections via video very readily, she said.
Practice, and Speak Through the Lens
It is understandable for attorneys to feel some anxiety when presenting online, Sowers said. After all, it’s a brand new world for everybody. The solution is practice.
“If you haven’t spent a lot of time on camera in some fashion, then this is going to be really difficult. So you’ve got to practice,” Sowers said. “If you are not giving yourself enough opportunity to familiarize yourself with it, you’re doing yourself and your clients a disservice.”
The more time attorneys spend practicing their presentations to a camera the easier presenting online becomes.
Recordings also provide an invaluable feedback mechanism, and should be made whenever possible.
Sowers advised that attorneys practice the material they will actually be presenting in court — with the same technology they will be using in court — rather than practicing with unrelated, boilerplate-type scripts to read merely for the sake of reading something.
Practice also builds confidence, which makes the speaker appear to be more credible and persuasive with the audience.
Another tip shared by several presenters is to speak through the camera, meaning, to speak to a specific judge or juror or demographic group on the other side of the camera. “Speak through the camera lens” to that person, Sowers said.
An image of the judge or a collection of images and biographies of jurors, placed behind the monitor or on a separate computer screen, are good ways to remind the speaker of the need to communicate through the lens to an audience.
Make Online Movements Deliberate
Online, an attorney’s quick glance at his or her notes can appear suspicious and shifty. For this reason, Sowers said, attorneys should be deliberate and transparent when they want to look at their notes or read something verbatim from a prepared text.
“Come right out and say, ‘I want to get something right, so I am going to read this to you,’ “ Sowers advised. Viewers will not draw a negative inference if you are transparent with them, she said.
“You can get away with so much if you explain it, if you are transparent about it, and you do it purposefully,” Sowers added.
As for gestures, Sowers said that gestures are helpful: they give the speaker the energy necessary to push through the screen and connect with the audience. However, in most instances, gestures should be kept out-of-sight, below the screen as much as possible.
Attorneys should gesture visibly on-screen only when it helps make a point.
“The gestures that show should be very purposeful,” Sowers said. “Anything that makes sense and matches your words is going to be the most effective gesture.”
Use PowerPoint Strategically
PowerPoint and other visual aids should be used judiciously, and with a clear purpose in mind during virtual trials and hearings.
Visual images take precedence over verbal signals in the mind of the viewer. Attorneys should be aware that a slide or image is going to take attention away from what the attorney is saying.
Only information that needs to be visual should go on the screen, Sowers suggested. When the attorney is making an opening or closing argument, only the attorney should be seen on the screen and nothing else.
Unlike a physical courtroom, videoconference software gives jurors and judges little control to no control over how trial proceedings appear on their screens. When visual aids are used, the attorney delivering the argument will often be relegated to a small box on the viewer’s screen. The presentation will not be effective if the attorney’s image has to compete for screen real estate with a large PowerPoint slide, Sowers said.
DeCaro agreed. Just as it’s not effective for an attorney to rely on slides to tell a story in an in-person courtroom setting, it’s equally unpersuasive in the virtual environment, where neither the attorney nor the viewer can control the size of the on-screen boxes that display the speakers and their visual aids.
“If you can’t control what the viewer is seeing, then it becomes all about the slides and you lose your ability to make that connection that we’re talking about,” DeCaro said. “It feels to be unnecessary to have slides up all the time when you are speaking to people online.”
Judges Are People Too
Bench trials and appellate arguments are different than jury trials, of course. Judges bring a legal background to the proceeding, and in nearly all cases they already have a good grasp of the facts and the law applicable to the case. Nevertheless, it’s important for attorneys to not give these proceedings less than their best effort.
In other words, don’t phone it in.
“You have to show that person what that person needs to see in order to come to the conclusion that you need them to come to,” DeCaro said.
Chris Dominic, president at Tsongas Litigation Consulting Inc., noted that some judges have expressed irritation when attorneys appear to be putting in less effort for a bench trial than they would have for a jury trial. Judges appreciate it when attorneys put in the effort to help them work through the issues in the case.
DeCaro said that attorneys should make the same effort building a connection with the judge as they would a juror.
“I think like anything else it is about connecting with the judge, not wasting the judge’s time, and knowing the judge’s preferences before you go in,” she said.
Putting in the work also means taking the time to master the technology that will be used during the trial.
Alicia Aquino, a trial presentation specialist at Aquino Trial Services in San Diego, Calif., recalled a recent online trial where the judge expressed impatience for an attorney who needed 45 minutes to work through technology issues even though he had many weeks to prepare for trial.
When practicing, attorneys should be sure to use the same technology they will be using during the upcoming trial or hearing. Practicing a closing argument or witness examination on Zoom won’t be completely helpful if the real thing takes place on Cisco Webex or Microsoft Teams, Aquino said.
Keep Camera at Eye Level. If the viewer can see the ceiling, the camera is too low.
“I don’t think it is a good plan to be looking down at the judge in your case, or at your witnesses, or at your clients, or at opposing counsel,” Sowers said. “So be sure that you are really eye level, that you are boring right into the eye of that camera.”
Look at the Camera, Listen to the Screen. Disengage from the camera and look at the screen only when you have finished speaking. While speaking, train yourself to check the screen (if you must) using peripheral vision.
Prepare Witnesses Thoroughly. Teach witnesses how to connect with the camera/judge/jurors. Simulate the virtual courtroom during practice and preparation: same place, same lights, same laptop, same microphone, and same technology platform. Make sure witnesses know how they appear on camera to viewers.
De-Clutter and De-personalize Witness Environments. Remove family photos and distracting objects from the camera’s view. Suggest appropriate witness attire, nothing “busy” that might look odd on camera. Consider having witnesses testify from a controlled location outside the home (e.g., a court reporter’s office).
Practice, Practice, Practice. Contrary to some opinions, a well-practiced presentation will not appear “canned” or slick. It will appear confident, engaging, and credible. Pre-hearing run-throughs invariably uncover problems that can, and should, be addressed.
New Jersey Law Journal, Ten Tips to Make Your Zoom Trial a Success
National Institute of Trial Advocacy, May the Record Reflect Podcast, Serenity Now: Carol Sowers on Being Poised in the Courtroom
State Bar of Wisconsin, Inside Track, Bench Trial by Zoom: Tips to Prove or Defend Your Case by Video
Esquire Deposition Solutions, How to Conduct Depositions Online: What You Need to Know to Execute the Process Successfully and Legally (Webinar)