Tips For Effective Witness Cross-Examination In Remote Trials


By Pleasure Odom, Lauren Zimmerman and Megan Larkin

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Legislation360 (August 12, 2020, 4:29 PM EDT) —

Pleasure Odom
Lauren Zimmerman
Lauren Zimmerman
Megan Larkin
Megan Larkin

As COVID-19 security issues persist, many courts have transitioned to distant proceedings to maintain their dockets shifting. And past simply digital standing conferences and movement hearings, a number of courts have held, or are in the midst of, full distant bench trials in civil circumstances.

Distant trials pose a particular problem for legal professionals who should cross-examine witnesses nearly. The courtroom contributes many parts — ambiance, bodily proximity, reside confrontation and spectators, to call just a few — that are diluted or absent altogether in distant proceedings. This altered panorama impacts witnesses and legal professionals alike.

Courtroom is theater, and a superb cross-examination might be spellbinding. However the setting of a Zoom name can stifle a lot of what makes cross-examination thrilling. The savvy cross-examiner should modify to make the identical truth-inducing affect on a witness throughout a digital cross-examination as in a reside setting.

Set your self up for fulfillment — actually.

In an in-person courtroom setting, you’ll be conducting your cross-examination from the rostrum, going through the decide and the witness, along with your crew behind you. The setup is conducive to eye contact in you can look simply out of your define to your witness and the decide. In a Zoom trial, you get to determine find out how to arrange your “courtroom.” Achieve this in a means that lets you use the strategies that work greatest for you.

Get up if attainable. Trial legal professionals typically agree it’s simpler to carry out higher when standing up. And it isn’t simply folklore, it is science.

Standing up improves focus and offers you a wider vocal vary. Motion additionally releases endorphins, which enhance your alertness and vitality. All these truths maintain within the Zoom context.

In case you can, arrange a standing workstation and a sitting workstation, simply as you’ll have in courtroom. When listening to your adversary’s examination, sit whilst you pay attention, take notes and interpose your objections. When it’s your flip to look at the witness, transfer to your standing station. Whereas it might initially really feel awkward to face with the up-close-and-personal digicam angle, you’ll quickly get used to it.

Standing up will make it easier to get from placid dialog mode to dynamic cross-examination mode. Many people are used to having pleasant, seated discussions with colleagues over Zoom, not conducting adversarial witness exams. This will hamper your capacity to get into the best mindset. And since we’re used to sitting throughout depositions, it’s straightforward to slide right into a questioning type extra suited to a deposition than a cross-examination should you situate your self as you’ll in a deposition.

In case you stand, you’ll really feel extra answerable for your house — and your examination.

Adapt your presentation strategies.

On cross-examination, you possible depend on your bodily presence, quantity and physique language to facilitate your management of witnesses — and to maintain judicial curiosity. You needn’t sacrifice these instruments altogether on the altar of Zoom. As a substitute, discover videoconference variations that really feel pure to you.

As a substitute of getting louder — which may play as petulant over video — use acceptable voice modulation to get up listeners fatigued from hours of engagement in distant proceedings. Good voice modulation additionally conveys your confidence to your witness, which can make him extra prone to comply with the place you lead.

However keep in mind that dramatics play even much less effectively over videoconference than they do in a courtroom. With out the interpersonal connection and dynamics of a courtroom, an exaggerated excessive pitch or sharp tone can fall flat.

And whilst you might not be capable to tempo or stroll away out of your podium, as it’s possible you’ll be used to, you possibly can nonetheless use bodily proximity to the digicam for emphasis. Whether or not you might have chosen to sit down or stand, you possibly can select to lean towards the digicam to make your presence extra substantial — or lean again when the witness provides a solution nobody ought to imagine. Do not overdo it — should you get too shut, it is going to look foolish moderately than commanding.

Step up your define recreation.

Profitable cross-examiners know that the important thing to a powerful examination is a good define. That’s by no means extra important than when the cross-examination is thru videoconference.

Simply as it’s possible you’ll really feel extra relaxed over video, your witness possible will too. Put together for recreation time by spending loads of time along with your define prematurely of the examination. You have to a powerful command over the fabric so that you could pounce on witnesses’ slip-ups and tightly management witnesses who ramble.

Additionally, you will need mastery over your define so that you could look extra on the witness on digicam and fewer on the web page. A part of the vitality of a superb cross-exam comes from the bodily chemistry between the examiner and the witness.

Over video, with out bodily presence and the numerous atmospheric aids a courtroom lends, your cross can grow to be antiseptic. You’ll be able to reclaim among the crackle within the air by making higher eye contact on video. That’s best finished if you wouldn’t have to rely closely in your notes.

Pay attention up.

You might be used to gauging a number of parts of a witness’s efficiency throughout your examination. It isn’t simply the phrases they’re saying that matter; it is how the phrases are stated. Facial expressions, physique language and voice matter. These often-subtle cues to a witness’s way of thinking will help inform split-second judgments about whether or not to pursue a line of questioning, take a threat or transfer on.

Videoconferencing provides you some capacity to evaluate these elements of a witness’s testimony, but it surely’s not good. Standard knowledge tells us that facial expressions are the least revelatory a few witness’s internal state. Physique language is a bit more telling. And the voice betrays most of all.

Fortunately, the voice is what you possibly can assess greatest over Zoom. You might not be capable to inform if the witness is nervously working his palms, however you possibly can inform if he hesitates earlier than he solutions or if his voice turns into extra high-pitched.

Put together your self for a unique sensory expertise over videoconference, and to zero in on the inputs you do get, such because the witness’s voice.

Put in your poker face.

Whereas the immersive courtroom expertise could also be absent over video, there are some elements which might be amplified. One among these elements is the give attention to you.

All of us attempt to hold a straight face and keep away from visibly reacting to what we hear in courtroom. Besides, reside proceedings give a point of wiggle room. The presence of different members and visible stimuli affords you cowl to arch an eyebrow, put your head in your hand for a second whilst you write, or maybe even stifle a smirk. In a courtroom, you’re simply one in all many issues to have a look at; this offers you some flexibility along with your facial expressions and posture.

Videoconferencing provides no quarter. As a result of distant proceedings can really feel passionless and muffled, members search tougher for stimuli to interrupt up the monotony. Folks watching takes on a complete new which means. That signifies that your sneaky smirk not goes unnoticed; moderately, if you find yourself perpetually entrance and middle, you grow to be fodder for remark amongst your adversaries, the courtroom and your witness.

You needn’t look vacant — certainly, some expressiveness on video conveys vitality and application. However do monitor what you seem like on display and modify accordingly. You might even discover it useful to process a crew member to observe you.

In conclusion, cross-examination over videoconference is actually a problem. However with a little bit additional planning and a focus to the wrinkles a distant continuing introduces, you possibly can cross-examine your witness successfully and safe your key admissions.


Joy Odom, Lauren Zimmerman and Megan Larkin are associates at Selendy & Gay PLLC.

The opinions expressed are these of the writer(s) and don’t essentially replicate the views of the agency, its shoppers, or Portfolio Media Inc., or any of its or their respective associates. This text is for common info functions and isn’t meant to be and shouldn’t be taken as authorized recommendation.

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