By Katherine James
“O brave new world that has such people in’t!”
William Shakespeare, The Tempest
“...most men and women will grow up to love their servitude and will never dream of revolution.”
Yes, it is a brave new world – this world of virtual witness preparation. In my practice I find it to be a revolutionary new chapter in my professional autobiography (thank you, Aldous!). But I didn’t always feel that way.
A good two years before I started helping attorneys prepare witnesses virtually I thought it was impossible. I believed that unless I was in a room with a person, I couldn’t make an impact on that person’s ability to be a better witness. What’s more, without “being in the room” how was I going to have an impact on the attorney? Much of witness preparation is also attorney preparation – helping to develop the series of questions in direct examination, for example. Add into the mix that I work with clients all over the United States and occasionally overseas.
So what changed my mind?
My granddaughter, Persephone.
I discovered I was going to be a first time grandmother in June of 2011. Both of our sons live right near us. I knew that I didn’t want to travel for two weeks before her birth and two weeks after her birth. In other words, I wasn’t going to go anywhere the entire month of June other than the west side of Los Angeles County. I did have a couple of local cases here in Los Angeles. But my reality is I am never working on less than 20 cases either in trial, going to trial, or in discovery… nationally. Huxley would point out to me that I “loved my servitude” of the tarmac at LAX. How could I desert all those people across the country in their hour of need? My Los Angeles clients had already been given the “heads up” that I could be running out the door at any moment during their prep sessions and headed to the Labor and Delivery Waiting Room at Cedars Sinai. I was rehearsing the “I am not working out of town for the entire month of June” speech when I got a call from a wonderful client. The dates of the depositions of the witnesses we were working on just came through. For June. Right around my daughter in law’s due date – of course. When could I fly to Houston? I said I couldn’t. He said, “Could we SKYPE the witness prep sessions?”
And the rest is history.
The last two and a half years I have learned much about virtual witness preparation.
First – SKYPE or Google Hang Out or Courtroom Connect or another platform? I’ve used a number of them. Many attorneys and their IT Departments have a methodology of choice – including their own networks. I am enjoying Google Hang Out these days, but make sure that I am paying for SKYPE premium. This allows me to “talk” to a person at the company if I need to – which I sure did at the beginning of my relationship with the new technology.
Now, lets look at your equipment. I use my beloved MacBook Pro laptop. Great camera and speaker built right in. When the asphalt truck hits the power line in your neighborhood and shuts down the electricity a few hours before your virtual preparation session (yes, I live SUCH an exciting life here in Culver City, California), you can just grab your laptop and rent space at the nearest Regus Center or hotel. I have a great WiFi connection in my home office. I am good to go anywhere that also has a great WiFi connection, and Regus centers have awesome connections and private offices that they rent by the hour.
How about their equipment? Now, you know I love lawyers so much that I gave birth to one, but you would be amazed at how little some know about keeping up with technology. Perhaps they are satisfied to have a WiFi in their office that sucks. Or really out of date equipment.
But worst of all is the “love of servitude” to an old-fashioned video conferencing system. Many video conferencing systems are set up for just what the name implies – “conferences”. I think of a conference as a meeting of one board room looking at another board room. There are six to ten people in each of the boardrooms. They are teeny tiny people and you can’t make out their facial features. Let alone their faces.
I’ve tried a couple of different “distances” of the witness from the camera. I have found that prep works best for me when the face of the witness is in extreme close up and mine is, too. I am generally visible from the neck up and like the witness to be the same way. Our faces fill each other’s whole screens. The lawyer is generally sitting off camera to the side. This allows me to see every nook and cranny of response on the face of the witness as we role-play. It also allows an intimacy to our relationship. Instead of feeling distant from one another, I find that I am actually physically much closer to a witness than I would be if I were actually in a room with that person. Occasionally I find that the attorney puts my face up on a wall on a gigantic screen. I discourage that – it is hard to have an intimate relationship with a four-foot tall picture of my face. I believe I look a bit like Oz The Great and Powerful in The Wizard of Oz before Toto pulls the curtain.
One of the obvious advantages to virtual witness preparation is economic. The difference between only paying for the hours of the work itself is major. When I help prepare witnesses “offline” – up close and personal – it is much more expensive. Travel time, travel expenses, a day of my time versus hours of my time – this savings is massive. How does this benefit me as well as the attorney? I have clients to whom I used to fly once a year or once every two years – when the case “warranted the expense”. With SKYPE or a Google Hang Out I am now in every one of their cases. Can you imagine the impact that can be made on a law practice when every client is prepared for deposition by a trial consultant rather than just the “important” ones? If at the end of the session it is obvious that the client needs more help, we can schedule another session easily. When I do that after having made a trek halfway across the country coming back again for a repeat is not necessarily that easy. Actually, now, when I travel and prepare a witness in person and that witness needs more work I often do those follow ups virtually – again, a savings for all.
True, there are some things that I really can’t do in a virtual session. The major one is that I can’t record the witness on my I-Pad and play the footage back during role-play. I look forward to the day when technology catches up with my needs. For now, this aspect of my prep simply doesn’t exist in the virtual session. Of course, since my practice pre-dates video I go back to those “old” tools. Taking copious notes, reflecting back to the witnesses pretty great impersonations of behavior I want changed – I’ve learned how to dust off those old skills and put them to new use. Some days it isn’t enough – but I find those days are really rare. The virtual methodology is often “good enough”.
And there are other advantages. I was preparing a witness virtually in a civil case but I could tell that she was high on drugs. I said, “Are you high?” She started making excuses. I said, “Your lawyer is paying way too much money for this session for me to waste it because you are high. If you decide you want to straighten out, tell her, and she’ll get in touch with me and I’ll arrange another virtual session with you before your deposition. But meanwhile…” And I just disconnected myself. Not only could I not have done that in Cleveland (where the lawyer and witness were physically) – I wouldn’t have. I would have worked with that woman for the day, gotten nowhere, and gone home disgruntled. Oh – and she wouldn’t have stopped taking drugs. Which she did. I am telling you – being virtual was an advantage in many ways in that case!
How often do I prepare people virtually? I have grown from 0% in the middle of 2011 to 25% at the end of 2013. I am looking forward to growing this aspect of my business more and more in the future.
Oh – and as I write this, I am back on that no-travel schedule for the month of December. It seems Persephone’s sister is being born on or around December 18th. As I put my fingers to keys, I am working on a case virtually that is in trial every day for two weeks on a daily basis at the end of the day, another twice in during the day session, and a handful for a “one time” few-hour-session each during the day. Every one of the lawyers knows that I may have to reschedule depending on the trip to Labor and Delivery at Cedar’s…but after all…it’s almost as simple as rescheduling a phone call. No one’s complaining, and everyone is thrilled about the baby. How about that?
So, come on. Join me in the Brave New World of Virtual Witness Preparation. The Revolution awaits you!
Katherine James is the founder of Act of Communication and serves as a litigation consultant based in Culver City, CA. You can contact Katherine at [email protected]