The ability to present testimony by video conference or video chat has been around for several years, but the ability to use it efficiently, to its full potential, is a more recent development. This blog will focus on the use of Skype but there are several other platforms (Cisco WebEx, GoToMeeting, Google Chat, Facetime, Webex etc.) that will work as well.
The first time we video conferenced an expert witness into the courtroom was in 2002 in a civil trial in Philadelphia. Like Dorothy’s first glimpses of the Wizard in The Wizard of Oz, it sure looked like magic, but there was a whole lot of behind-the-scenes effort involved. We had to contact the court weeks in advance, involve the county’s IT department and use an outside vendor to provide the T-1 internet line – which was very expensive despite needing just 2 hours’ worth of testimony. Granted, this was a pharmaceutical case with millions of dollars at stake. It was money well spent.
Nevertheless, fast-forward 14 years to 2016, to an old courtroom in West Texas. As the trial approached, both sides ran into scheduling conflicts with their witnesses. And, with an enthusiastic judge who wanted the case over quickly, we needed a backup plan.
Benefits of Calling a Witness to Testify by Skype
Enter Skype. The judge OK’d it and, because the witnesses needed merely to find a quiet room to sit and log in, scheduling them from afar was a breeze. Meanwhile, courtrooms have come a long way – no longer did we have to jump through the technological hoops of the past to get video conferencing up and running.
Indeed, there are plenty of practical benefits to calling a witness by Skype:
- Easier to schedule, especially if a witness has limited availability
- No transportation/travel costs for witnesses appearing by Skype
- “Live” witnesses can hold the jury’s attention better than a prerecorded video
Considerations Before Calling a Witness to Testify by Skype
Before you decide to call a witness by Skype, consider these important network fundamentals:
1. Preparing the Courtroom for Skype or Video Conference
a. Connection speed is the most critical component of a successful video connection. The connection needs to be a minimum of 20 megabits download and 5 megabits upload speed. You can check your courtroom speed here: http://my.verizon.com/services/speedtest/ or http://www.speedtest.net/
For example, here are the results of our speed test in Howard County, Texas:
b. When possible, use a hardwire connection vs. WiFi. In Howard County, we used WiFi with minimal hiccups – completely doable – but would still have preferred hardwire. The signal is always more consistent and reliable.
c. The technology still isn’t perfect. As with all technology in the courtroom, nothing is ever perfect. Just be aware of the potential for buffering, hiccups and even dropped calls.
d. Check the lag speed with the witness. Once connected conduct a visual lag test. We do this by holding up five fingers and having the witness count down. At our recent trial, there was a half-second delay – which was acceptable to the court.
e. Do a preliminary audio test with the court. It’s always best to provide your own speakers so you have familiarity and can control them yourself.
2. Preparing the Witness to Testify by Skype or Video Conference
It’s critical that you create an environment in which your audience feels almost as though the witness were sitting right there in the courtroom.
a. Choose a quiet location for the witness to sit, where there will be no noise, distractions or interruptions. Have them turn all phones off and lock the door. An optimal setup would be a conference room or office. Avoid having the witness testify from home.
b. Remove distracting items from the background. Make sure the room you choose for the witness has nothing distracting behind him/her that can pull at jurors’ attentions, like framed artwork or even people walking by in the background.
c. The witness should look directly into the camera. Eye contact is critical to jurors’ perceptions of a witness’s credibility; unfortunately, with video conferencing, the natural tendency is to look at the person with whom one is speaking (on the computer screen). Yet, to an observer, they appear to be looking awkwardly downward. Consider having the witness use a sticky note to remind them to always look at their camera and to put a box or book under the computer to raise the camera up to eye level.
d. Remind the witness not to say anything until they are asked. Given the potential for minor lag, you don’t want a clumsy, talking-over-each-other cycle to begin. Whether the jury is in the courtroom or not, remind the witness that opposing counsel, the judge and any other audience will hear every word.
e. Have your witness speak up and not trail off with their answers.
f. Make sure your witness addresses his/her audience. The witness needs to remember that while they are responding to the questioning attorney, they are actually looking directly at the jury while projected onto a large screen or monitors in the jury box.
3. Final Preparations
a. Sound. You checked it earlier. Check it again. Second to speed, the sound is the next most important component of successful testimony. People can tolerate a few Max Headroom moments if the sound is consistent and at a good listening level.
b. Have the judge prime the jury. Ask the judge to announce to the jury that the witness will appear via Skype and that there’s always a possibility of screen freezes and/or a dropped call.
c. Lighting in the courtroom. As discussed in a prior blog post on video depositions, most judges assume that you need to turn out the lights when a video is played. In fact, turning out the lights is a great way to lull jurors to sleep (even with a live witness). Luckily, most projectors, whether provided by the court or supplied by your presentation technology consultant, have the ability to show video with ease, even in lit rooms. And, if needed, all projectors can tweak the contrast and brightness to accommodate your setup.
d. Location of the laptop for direct and cross. Pick one seat at counsel table or the podium where both counsel will be conducting direct and cross.
e. Have everyone log off of the network to ensure the best connection possible. For example, at our recent trial, since the connection was provided to both sides we had all other connections (e.g., computers, phones, iPads, etc.) disabled so that the laptop with Skype was the only one on the network.
f. If using Skype, make sure your Skype’s “Do Not Disturb” setting is ON. There is nothing more embarrassing for counsel than a colleague’s message popping up on the big screen asking, “Did your the expert witness tank???” See the George Zimmerman trial for an extreme example:
g. Make sure to take a break before starting the testimony. Jurors are known to get restless. Restless jurors zone out.
Presenting Documents and Video Clips during Testimony by Video Conference.
Since the witness is not in the courtroom, showing documents or video clips to the judge and jury will have to happen on the same laptop as your witness. Have your trial technician share their screen and call up the document. If you need to go beyond callouts and highlights to direct a witness to key portions of a document, use the “laser pointer” option, found in PowerPoint and most trial presentation software.
It might seem like a good idea, but avoid handing the exhibits to the jurors and asking them to read along. It adds another potential distraction to the mix.
Between time and money saved – travelling is both time-consuming and costly – and high scheduling and location flexibility, calling a witness by Skype is a convenient and effective way to handle testimony. With the above considerations in mind, make sure you take advantage of this wonderful technological advancement. Let us know how our presentation technology consultants can help you evaluate the courtroom and set up a witness by video.
By: Adam Bloomberg – Managing Director – Visual Communications