In this episode of the Litigation Psychology Podcast, CSI Litigation Consultants Dr. Bill Kanasky, Dr. Alyssa Parker, and Dr. Steve Wood discuss virtual witness training best practices. The team talks about the advantages of conducting witness effectiveness trainings virtually since depositions are also being done remotely, as well as how they go about delivering effective witness training when they can’t be in the same room as the witness and attorneys. Additional topics discussed include their experiences with the best – and worst – physical setups for the virtual trainings, what the advantages are for virtual training and depositions over in-person, the outcomes and feedback they have received from attorneys and witnesses after their virtual witness effectiveness training and depositions, and more.
Full Episode Transcript
[0:04] Bill Welcome to the Litigation Psychology Podcast, brought to you by Courtroom Sciences. Dr. Bill Kanasky here with two of my awesome colleagues, Dr. Alyssa Parker. Alyssa, hi.
[0:16] Alyssa Hi. How are you?
[0:18] Bill Good. And Dr. Steve Wood. What’s going on, Stevo?
[0:23] Steve Not much. Michigan State is in the top 10, so life is good.
[0:28] Bill I don’t even want to talk about that right now. Don’t get me started. However, what I do want to talk about is the topic of a Zoom-based or Webex-based virtual uh witness prep, witness training. I’ve been getting a lot of calls from clients essentially asking: is it the same as in person? Is it different? Is it better? Is it worse? With many assuming that they’re coming into it that it’s not going to be as good as it is in person.
And I guess my initial reaction is to say it’s different. I’m not saying it’s not good, but I think I’ve been pleasantly surprised with my experiences now over, what, seven months of doing these? Alyssa, you’ve had your experiences with this. Just from a general perspective, if a client calls you and says, “Hey, is it really worth it to do this or not?” what’s the conversation you’re having with clients?
[1:24] Alyssa Well, I think the first thing that comes to my mind is that most depositions are being taken remote at this time. So doing the virtual witness training actually, I think, is a logical preparation because it’s the same format that they’re about to have for their actual deposition. Um so I think that that’s helpful to kind of get the witness a little bit used to that.
I had some concerns about relationship building, because certainly that’s a big part of what I do in a live witness training. Depending on the witness, what role they have in the case, what their role is within a company, let’s say, they might have some distrust of the process or a lot of negative feelings about the litigation process or case itself. Um I really have not found that to be an issue at all virtually, even though I thought it was originally. So that’s something that I talk about. And um I mean, we go through all the same things that we do in a live witness training in the virtual format. So yes, I say the same thing that it’s different but similarly effective.
[2:35] Bill The new normal. Steve, what’s what’s been your experience so far? Generally positive?
[2:42] Steve Yeah. It’s been generally positive. A lot of same stuff that Alyssa talked about. One thing that I was a little concerned about, and I still am not overly excited about, is the fact that you can’t be in the room with the person and you can’t read body language. Because as Alyssa said, so much what we do is personal relationship building. And not being able to be in the room with that witness, or even be able to read the body language and give them more of the tips and tricks about body language based upon the things that they’re doing when they’re answering questions, makes it really difficult.
So outside of that, I think everything else has been positive. Everything else has been really good. And like you said, not much different than actually doing it live. But that would be the one thing that if I was talking with the client and they asked, “Do you have a preference?” my preference would be for in person. But at the same time, I always tell them there’s—I would absolutely do it over Zoom if need be too. I’m not averse to that by any stretch.
[3:37] Bill Yeah, and this—I think this has been good news because we’ve been able to pull this off, be highly effective uh with witnesses. You know, the one thing um that kind of fell on my lap, but I I I took the challenge and I think I think we we kind of put our heads together and did a good job is: you know, we—just so our audience knows—in an in-person witness prep for 15 years, I’ve been whiteboarding everything on a whiteboard. Um I never used slides, ever. I never used slides uh because I like the interaction of the whiteboard. I can control the whiteboard. I don’t have to worry about any AV hookups. And almost every law firm has a whiteboard; you get some different color markers. That that was effective for a long, long, long time.
Well, now that’s kind of useless um over Zoom. And I think Zoom and Webex may have some sort of whiteboard feature, which I played with. Not gonna happen. So we had to figure out how do we get this material that we were whiteboarding for years? And so we put these into the slides. Um Alyssa, do you do you feel like the slides are just as effective as the whiteboard?
[4:45] Alyssa You know, I actually feel like there are more visual aids now than there were with the whiteboard. So it’s kind of an additional, more didactic way of learning. Um so they’re hearing me, but they’re also seeing a lot more visually what they’re learning, which I also find effective.
[5:12] Bill Yeah, because I mean um well I tell you my my handwriting sucks. It’s always awful.
[5:17] Alyssa I would agree.
[5:18] Bill And now everything’s everything’s perfect on the uh on the slides. But yeah, I do feel like everything is going to be so visual now. I think this I think I think using the slides as opposed to the whiteboard has been highly effective. I’ve gotten a lot of good um feedback from the witnesses. Steve, how have clients been reacting to essentially seeing our witness training program in a completely different medium?
[5:44] Steve I think they’ve been they’ve been positive to it. I think one of the big things—when we when we whiteboard, you know a lot of the stuff that we’re doing we’re writing now and then we’re also explaining it as we’re going. So there’s a lot of underlying pieces to when we’re drawing something out. There might be a five-minute explanation as far as what it is that they’re looking at. So I think with the slides, it allows us to be able to put more text on and a little bit more information on for the witnesses.
Because I know sometimes they feel overwhelmed and that they’re really trying to write down a lot of what we’re saying as we’re saying it. But when we put it on the slides, it’s a lot more in their face and then we can keep them slides up longer as we’re talking through it, and then they have that information they can look at consistently. So I’ve had positive reviews as far as being able to take what we did whiteboarding and translate it over into slides.
[6:33] Alyssa If I were to say one drawback um when we’re sharing the screen for the slides versus writing on a whiteboard, I feel like writing on the whiteboard there’s something about that that’s a little bit more interactive. I feel like the witnesses tend to be talking a little bit more and asking some more questions rather than kind of focusing on the slides. What I’m seeing a little bit more.
[6:54] Bill I know I know you—that’s true. Go ahead, Steve.
[6:59] Steve I’ll just say that’s that’s true. There’s a lot of times when I’m when I’m doing things that if if I can tell the witness isn’t quite getting something, I can write a little bit more or I can draw arrows and connect dots and do all these different things that I couldn’t normally.
[7:11] Bill I remember back in my graduate school teaching days when you get that student that kind of gave you that “huh,” right? You know, it’s very difficult to do that virtually. It’s hard to, you know, some of the steps… I don’t know what you’ve seen uh and we’re—I’m a little bit jumping ahead. But I think the way I think our stuff is coming across from what I have, the clients love it. In fact, they’ve said once we go back in person, “You can use these slides for all I care. You don’t have to whiteboard.” And we could, you know, do the slides in person. We’ll have to see about that.
But I think the setup is—there’s I’ve seen these set up so many different ways that can drastically affect the quality. Um one of the worst setups—well it depends, you’re kind of going to give and take. So some setups you have, say the law firm has a laptop just like this set up, and they put the witness in front of the laptop, and then the other people in the room I can’t see them, I can barely hear them. And then usually, unfortunately, there’s this big mask covering the witness. That’s very difficult, right? I don’t like that setup. I’d rather people in different rooms, just kind of like we are to see the three-box setup. Because then I can I can understand everybody, I can see everybody.
But then the opposite what they’ve done is uh sometimes they’ll use uh maybe a camera on top of a large monitor that’s on the wall, and now everybody’s like this far away and you can’t see anybody’s facial expression. And now it’s hard to hear everybody as opposed to one person. I’m still trying to play around with what my—I think my best experience, which I know is difficult, but I still think better for the prep session is to have everybody separated just like we’re doing now. We can all speak our own part—everybody’s comfortable.
And then the drawback is from the attorney: “Well, I want to be with the witness to hand them documents and stuff and to look at things.” Uh Alyssa, based on kind of what I just said, what are kind of the some of the good and bad that you’ve seen with the actual physical setup of where people are and camera angles and things like that?
[9:31] Alyssa Um I completely agree with what you said. What I have seen a lot of is the witness is at the attorney’s office and they’re the ones in front of the camera, which makes especially the portion on mock questioning very difficult to do um because I also have found where I—it’s very difficult to hear the attorney. Um I completely agree the idea of everyone kind of being in their separate spots. Um you can still share screens, documents can still be shown on the screen. I know that’s kind of can be a headache at times, but it’s definitely doable.
Um and one thing that I would add though on the other end: what I have seen, witnesses at home um tending to set up in a common area. Um so generally I would suggest making sure that, you know, you’re in a a room that’s private um where people… because in the common area like a kitchen or a den, people are kind of coming in and out and talking um so that’s equally as distracting as not being able to hear people.
[10:31] Bill Yeah. Steve, what do you think about the physical setup? Again, I’m a big fan of having everybody separated because I think that’s what creates the clearest communication between everybody. But a lot of the attorneys don’t want that. They want to be in the same room largely because of the documents. But then they’re wearing masks and… I don’t know, what do you what are your thoughts?
[10:54] Steve Yeah, one one of the—I just recently did one actually where they were in the same room but they were spaced apart from one another and then they were on laptops. So they both—we, you know, we had three screens like we’re looking at now, but they were… that was a good that was a good uh midway point to allow the attorney to still be in the room, still be able to show them documents and not have to worry about sharing screens and that, and then still get that done. So to your point, if I would prefer being apart, but I do like the way they did that as well because I think it was the best of both worlds.
And I also agree with what Alyssa said about making sure that it’s not in a common area. Because I’ve had it before, like you said, where you see wives walking around in the background or they come up and peek over the shoulder of this person that’s trying to do the training and stuff, and it’s not conducive for for good training.
[11:41] Bill No, I I totally agree. Another good setup—and I’m glad you brought that up, Steve—so I had the the law firm had um three people in the room, three laptops all on mute, right? And then the center speakerphone, they called the Zoom number. So I could hear everybody perfectly, but there was no echoing and feedback. And then I could see everybody perfectly because there were, even though they were in the same room, there were three different camera feeds. That may have been the best setup I’ve seen, but that’s assuming you have three cameras, you all logged in, and there’s no uh there’s no Wi-Fi issues.
So I think I think the theme here is if you’re gonna do Zoom witness prep, I think the couple things need to happen. Number one, I I think you need to make a probably make a pretty good plan. With, you know, before witness—before all this COVID stuff—there was no… the plan was, “Yeah, I’m coming to the office. I’ll meet you there. Have your whiteboard ready.” Now it’s a “Okay, well where’s the witness gonna be? Where are you gonna be? Are you gonna be on the same Zoom or a different Zoom? Same room, different room?” And I think you really—the amount of planning to witness prep now, I think makes a huge difference um in the quality of the witness prep. And so going forward, I think that’s something that we’re going to have to ask a lot of questions of our clients because I want every—I want this to be have the maximal um effect. And then have either of you…
[13:20] Steve I’m sorry, once I got real quick though, as we had had a conversation and I wanted to bring it up too because I thought it was a good point that you brought up was about setup was now how Zoom can be done on cell phones. And when you have planning and stuff about whether or not how you’re going to use it, I would highly suggest not to use the cell phones. Because I’m sure we’ve all experienced the witness who’s on the Zoom and then before you know it, they’re walking around the house, and then you see things moving in the background, they’re getting things out of the fridge and all that. It’s just not one once again not conducive for good witness training.
[13:51] Bill And I have uh I’ve always had motion sickness. Like so if I’m sitting in the passenger seat of a car or the backseat of a car, I’m gonna puke. It it’s going to happen every time. I get very nauseous. And then I have this—like you’re saying—I have I have this witness, you know, with their phone walking around and they’re trying to do witness prep and I’m trying to follow them and I’m getting vertigo. And not not a good setup. The uh the cell phone setups not good, unfortunately.
I’ve had a couple witnesses um for example—and this is just what it is, I don’t know if Alyssa has been doing this yet—um I had a couple trucking cases in which we were prepping the driver who did not own a computer. And so the phone was the only choice. And so he’s sitting on the couch, you know that his dog is… right? So he’s petting the dog and he’s doing this and, you know, has a bag of Doritos in front of them. I think sometimes—I think sometimes depending on who you’re working with uh you may be you may be stuck on the phone.
So um let’s—I think we went through that’s a pretty good list of do’s and don’ts. Now we can backtrack into: I’ve done several um group sessions which, again, in person I love doing these in person because then you go right into your back into your graduate school teaching mode. You can really get a really good assessment of witnesses in a room even if it’s, you know, 8, 10, 12 people. All of that personal interaction, you really get a good flavor for the witness.
And so on Zoom, so doing this virtually, I found that much more difficult when they bring in a conference room. If they bring everybody in a conference room and I’m the only guy on Zoom, I can’t see anybody, I can’t hear anybody. I—it’s really, really difficult even even the most quality video. It’s very difficult and they’re all wearing masks. Where again I’ve done group—I did one in Iowa on a police officer case, a police brutality case, and we had nine police officers in nine different offices with nine different boxes. I could see everybody, I could hear everybody. And so again it’s kind of this back and forth of you like you’re gonna—you may have to give up something as far as being together, but you may triple the quality of the session. Alyssa, how have you been dealing with the whole group dynamic issue?
[16:38] Alyssa You know, I I’ve done much more individual sessions than group at this time, but I would agree. A huge part of what we are doing is ourselves observing the witness: how they’re responding, how they’re reacting, um body language, tone of voice. And that would be absolutely lost in a setting that you initially described.
[17:00] Bill Yeah. Steve, what do you think about the how to how to handle these um group sessions?
[17:08] Steve Yeah, I think really the the only way for me that I feel comfortable—I think we’ve already said it before—is, you know, to try to have some sort of way of being able to everyone through through multiple boxes. And just… I just don’t know if it works any other way. Because ideally the the goal is to provide quality for the witness so they can give the most effective testimony. So I don’t think we want to shortcut anything by doing something that’s not going to allow us to be able to provide the most effective training. And I think doing what you’re talking about, about not being able to see anybody, not being able to hear anybody—I think it’s not going to do anybody any good and I don’t think it’s going to be very effective. So I think really the clients, the attorneys, are doing themselves a disservice if they’re doing it that way just because they’re not providing the efficient and effective ability to do it to train.
[17:54] Bill Um so let’s let’s wrap up this podcast by talking about outcomes. Um and I’m very happy to announce I’ve had amazing success with these preps because I’m having clients call me back going, “Wow, the witness did great. The witness did great.” A couple of the things that I’ve noticed um which again you don’t you can’t figure it out until it happens: is one, that the virtual platform has really slowed down the Q and A process, both from a cognition standpoint because the technology forces that slow down, and because oftentimes there’s a lot of um depending on your Wi-Fi connection, things have to be repeated or there’s a glitch in the audio. And so it’s naturally slowing down the Q and A which I think puts the witness at a huge advantage. Number one.
And number two: I think it’s completely taken the intimidation head game factor out of this. Because even your biggest, baddest, strongest, meanest plaintiff attorney cannot do that over Zoom. Uh Steve, what has been your your kind of feedback from clients and maybe outcomes of deps or things that you’ve noticed? How maybe the doing the Zoom way… I I think actually I think the defense has the advantage on a Zoom dep. That’s just me.
[19:29] Steve I agree. I think one of the things I will say to your point of what you’re talking about is one of my concerns about the Zoom prep—well, at least from doing it from from your own home—is I feel like sometimes people get a little too informal. They’re sitting in their house on their couch, and it’s way… that stress level, that tiny bit of stress level of being in the deposition in and of itself is being in the attorney’s office.
So I think that’s one of the concerns that I have is people fall into… I’ve seen it, I saw a deposition where a guy was sitting on his couch and he was laid back like he was watching the football game. I mean I think it was going to be one of those things that we you don’t want, right? So I think that’s one of the drawbacks. But outside of that, I think to your point that the defense does have the advantage. And I think one of the things that I harp on, as far as at least from an attorney’s perspective, is to make sure that those witnesses don’t slip into this informality or over overly comfortableness in their in their own home and then, of course, slip up and then say something that’s harmful to the case.
[20:31] Alyssa Yeah, to jump on that, Steve um that’s actually something that I talk about in the witness training. For the purposes of the witness training, I think the witness being at home is very ineffective. I actually think it works better for the purposes of their deposition if it’s going to be virtual for them to either be at an office or a conference room at work if they can be, or to be at the attorney’s office with some space between them. Because I completely agree that there’s a tendency to be a little bit more informal or not take kind of the seriousness of this process um the way it should be taken um when you have that distance of multiple screens.
I do think the head game still has the potential to play a role. I do think emotion can still be an issue for some witnesses, but I also agree that distance really… you know, when someone’s not sitting directly across from you trying to intimidate you, it’s a lot more effective. And the other thing that I’ve heard—it’s kind of been a mixed bag—but um for some people they’re getting all the um exhibits, case exhibits, that will be used before the deposition um so they actually feel like some attorneys have said that they are feeling that some of their witnesses are a little bit better prepared on that end as well because exhibits are not necessarily a surprise to them. Again, that’s been a mixed bag; it’s not happening everywhere. But um but that’s something important.
Along the same lines with exhibits: what I have to tell witnesses is what I would tell them in a live training is when you’re handed a document, you need to be looking at what comes before what you’re being asked about and what comes after. You need to know context um so that’s really important when a witness has just shown something on the screen. um I think it’s a lot easier to just focus on what’s being pointed out to them versus needing to to really look at the entire document um and so they just need to be reminded that that still needs to be done when it’s virtual as well.
[22:27] Steve I think that’s a good point actually, Alyssa, that you were… you made me think of something else is that with the virtual setting as well is that you really have to be diligent as far as asking to see documents is what… if if an attorney says the document exists or a document says something, I think regardless of whether or not the mess around with screen sharing or have any sort of tech problems and that to try to do that, I think you still need to be diligent to make sure you’re asking for the document to see the document rather just agreeing to whatever they say it says.
[22:54] Bill Yeah. Let’s let let’s wrap up here. One more final issue that I had no plan to talk about, we might as well bring it up: is the other thing I’ve seen here is, you know, speed. The speed of the interaction is such an important part of the reptile attack. And again because of the technology, it’s forced that slow down on the plaintiff’s side. Which, you know, if you’re gonna go through that reptile attack, if you never establish that rhythm and speed, it’s very difficult to suck a witness into that if they’ve been adequately trained.
Alyssa, how do you do do you think our our reptile our anti-reptile training system has been effective virtually just as as effective as it was in person?
[23:51] Alyssa Oh, absolutely. Yeah.
[23:52] Bill Steve, have you had the same experience?
[23:55] Steve Absolutely, yeah. I I agree as well and I I think it’s it’s better now, like you said, with the pacing than that. So absolutely.
[24:02] Bill Yeah, and I think it’s… I mean I haven’t I haven’t talked to any plaintiff attorneys but I would imagine um they are not very happy with the virtual system because I think it’s it’s taken away a lot of their weapons. And I think that they’re probably going to want to start pushing for more in person, which may have to force us to do in-person training.
So I think it’s just I think going forward—kind of last word—I think um all this is going to be a case-by-case basis and a lot of preparation, a lot of planning. Thank you, Alyssa. Thank you, Steve, for being on the Litigation Psychology Podcast. We’ll see everybody next time.
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