FIVE BASIC CONSIDERATIONS REGARDING TELECONFERENCING DEPOSITIONS

The coronavirus situation has had a dramatic impact on the processing of damage cases. Requirements for social distancing and, in some states, requirements to shelter at home have brought the judicial process to a halt. In many jurisdictions’ trials have been stopped and courthouses virtually closed. However, there is a need for ongoing discovery procedures to preserve evidence in anticipation of when trials will resume. One possible solution involves remote teleconferencing meetings and teleconferencing depositions. Technology allows one to connect to others from home or office through the telephone, tablet, computer or even mobile device. The technology allows depositions to be taken remotely through state-of-the-art equipment while participants are in different location rather than in the same room with the witness.

Both remote conferencing and depositions can be done by telephone or by video and online communication. Technology allows multiple parties to remotely participate or observe a deposition of a witness in another location. Here are five basic things to consider in this regard.

1. Location  The video teleconferencing location should be carefully selected. The factors to consider include the background in the location and room located behind the witness being deposed. Avoid distracting background. Also consider the location of the witness in the room in relationship to the video camera, microphone or telephone. Sitting by a window for example, can cause lighting problems for the camera image. Eliminate background noise. Choose a location with minimal background noise. Be sure to turn off all telephones and telephone interruptions.

2. Time zones.  Consider time zones. Be sure to coordinate with all the participants the correct time of the deposition in light of remote locations and time zones to avoid confusion.

3. Technology. It is important that the technology used is of good quality. The speakers and sound system should be checked to ensure that that there is clarity. The lighting for the witness should be appropriate for the camera. With telephone depositions be sure to have an effective speakerphone at the location or a sound system that works well.

4. Body Language  Be aware of body language and facial expressions of your witness and yourself if on camera. Do not move around and avoid background noise.

5. Prepare in advance. Preparation is the key to having the most successful depositions.Coordinate with opposing counsel. Working with opposing counsel can benefit by discussing trial technology, procedure and cooperative measures in advance. Consider exchanging exhibits ahead of time through email. Bear in mind, however, there may be disadvantages to doing this in connection with a deposition of a defense witness. Give some thought to inviting your client to participate. Clients may want to  attend the deposition electronically. Be sure to review software and technology which enables people in other locations like your experts or associate lawyers or others involved in the case  to audit the deposition. Get advice from the court reporters who are experienced with this process.

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FACTS ABOUT THE HUMAN BRAIN

Trial lawyers involved in persuasion and communication should study how the human brain functions. Here are a few facts to help us understand more about our brain. See the book Incognito: The Secret Lives of the Brain  by David Eagleman for a full description of facts and information

The Brain

The  brain is three pounds of  the most complex material we have discovered in the universe. This is the mission control center that drives the whole operation. Your brain is filled with neurons – hundreds of billions. Each one of these cells is as complicated as a city. Each cell sends electrical pulses to other cells up to hundreds of times per second. The cells are connected to one another in a network of staggering complexity. A typical neuron makes about 10,000 connections to neighboring neurons. This means there are as many connections in a single cubic centimeter of brain tissue as there are stars in the Milky Way galaxy.

The Unconscious mind

Our brains run mostly on autopilot and the conscious mind has little access to the factory that runs below it. As Carl Jung put it,” in each of us there is another who we do not know” or as pink Floyd put it” there’s someone in my head, but it’s not me.” When we think about activities we are each is often interferes with the activity. In the poem, A Puzzled Centipede there are the lines: “A centipede was happy quite, until a frog in fun said, pray tell which way comes after which? This raised her mind to such a pitch, she lay distracted in the ditch not knowing how to run.”

In 1997 neuroscientists conducted research with the subjects connected to a device to measure nervous system reaction. They gave the subjects four decks of cards and asked them to that choose one card at a time. Each card represents a gain or loss of money. However, each deck was stacked to be either favorable or unfavorable. It took the subjects an average of 25 draws from the decks to realize which ones were good or bad for them. However, the autonomic nervous system demonstrated that the subconscious mind had already determined which the deck was better long before the conscious mind.

While you cannot access the unconscious brain you can sometimes get a reaction from it. For example when you cannot decide between two options flip a coin. Determine which option belongs to which side of the coin in advance. The important step is to access gut feeling after the coin lands. If you feel a subtle sense of relief by the outcome that’s the right choice. If instead you reaction struggling that probably is a cue not choose that option.

The Two Brain Division

The brain is best understood as a “team of rivals” the right and left brain have competing functions. The”trolley dilemma,” it involves a car on the main tracks out of control. Five workers are going to be killed but there is a switch that will divert the car to a different track for only one worker would be killed. What choice would you make? Now imagine the same situation. This time there is a large man standing next to you. If you push him in front of the train five workers. Would you do it? This is a contest between the rational and emotional parts of the brain.

The two hemispheres of the brain perform differently when they are connected and when they are separated. When connected the two hemispheres complement and enhance one another’s abilities. When separated, the two hemispheres function as two independent brains with unique personalities often described as the Dr. Jekyll and Mr. Hyde phenomenon. Our right hemisphere controls left half of the body and vice versa.

To the right hemisphere, no time exists other than the present moment. To our right mind, the moment of now is timeless. Our right mind is spontaneous, carefree and imaginative. It allows our artistic abilities for free without inhibition or judgment. The right hemisphere thanks in pictures and perceives a big picture of the present moment. Our left mine thrives on details and more details.

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YOU ARE THE MESSAGE TO THE JURY WHETHER YOU ARE SPEAKING OR NOT

In analyzing what the demeanor of the plaintiff trial lawyer should be during trial, one should keep in mind how jurors and judges arrive at their viewpoints, opinions and verdicts. Research and functional magnetic resonance imaging has confirmed the majority of our decisional thought processing goes on at a subconscious level. Our impressions and decisions are not logical, but rather a process that occurs without our conscious involvement and at an unconscious level. However, these subconscious conclusions are always rationalized by our conscious mind that insists there be a reason for everything we do. Why is this fact important? It’s important because it means a trial is really a struggle of impressions and not a struggle of logic. Therefore, the impressions we create and our witnesses create are critical to the outcome of the case.

On top of that, we also know that nonverbal communication is considerably more communicative than is verbal communication. How we act, the way we talk and the way we move become an important part of the process by which jurors form impressions and ultimately arrive at verdicts. Consequently, our courtroom demeanor and appearance carry a considerable amount of importance regarding the outcome of the case.

Let’s look at the trial from the typical juror’s stereotyping of lawyers, especially plaintiff lawyers. They do not trust the plaintiff lawyer who they know wants them to give money away. They have been conditioned to believe the same lawyer is devious and will try to put something over on them like a salesperson would. They arrive at the courtroom with their guard up, just as we do when we know a salesperson wants to sell us something. Therefore, our primary goal is to put ourselves outside the expected stereotype. We want to demonstrate that we are credible and trustworthy, and an exception to what they expect. If we are outside of their image of what they expect us to be, we are more likely to be listened to and trusted.

However, it is how we interact with people during the trial that carries the most significant implications from a jury impression standpoint. Arrogance on the part of the lawyer or a witness will seal the fate of either in the eyes of the jury. To communicate the right impression we must treat everyone with respect and be professional in our words and conduct at all times with everyone. That just doesn’t apply to how we treat and speak to the judge. It includes the court personnel, the bailiff, the clerk, the court reporter and anyone else who works in the court room. Someone on that jury is watching you all the time and particularly how you treat them. It also applies to witnesses. You may not treat a witness with arrogance, ridicule or anger unless everyone on that jury gives you their permission to do so and you will never know if has been given so don’t do it.

Most of all, a requirement of a professional, respectful demeanor applies to your treatment of your opponents. You can only hope your opponent is a nasty, arrogant person so that you can demonstrate to the jury how unlike him or her you are by your reaction of professional conduct. In addition, to creating a favorable impression to the jury there an important, additional reason. We know that when we allow ourselves to become upset or angry we lose control of our rational processing. We do not function efficiently. Furthermore, we give up our self-power to the other person. Their words and demeanor control how we react and we are no longer in control.

We have all seen a dispute between two people where one is angry and out of control but the other person remains calm and in control. The latter always is perceived to be the more powerful of the two and more in the right in the dispute. What else happens when two people began arguing and attacking each other? We are uncomfortable. We move away. We don’t want anything to do with it. We think both are wrong. Jurors react exactly the same way to lawyers arguing with each other or treating one another disrespectfully.

So, what is the conclusion we can draw about what our demeanor should be as trial lawyers? It’s clear that our goal is to communicate credibility while treating everyone, including our opponent with respect and professional demeanor at all times no matter what our opponent is doing. Even if we don’t see it as our ethical or moral obligation, we should see it as making sense if we want to win. To be a great trial lawyer with the jurors of today we must learn to treat others with professional respect during a trial at all times.

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