Some say Richard Nixon lost the presidency to John F. Kennedy because of his five o’clock shadow and sweaty appearance in the first presidential debate on live television in September 1960. Undoubtedly, Kennedy’s team prepared and assessed the studio. They choreographed the lighting, the background, and even Kennedy’s suit. Nixon just showed up, sickly—he had no make-up pro on staff and focused alone on the substance, being a strong debater.
The rest is history. The debates were not contentious. Their views were similar and they largely agreed on key issues. Yet, Kennedy won. The camera was unrelenting. It was hard for people, fixated on his appearance, to focus on Nixon’s remarks.
March 2020 changed the modern face-to-face-anything landscape. The world went into Covid-19 lockdown and live video communication via web conferencing platforms like Zoom became the primary method of assembly. And much like that 1960 debate, many today struggle similarly. Significantly here, in the legal profession.
Clearly, the consensus is growing that teleconferencing and tele-testifying are here to stay. That said, much more effort must go into making lighting work well to ensure that witnesses and lawyers don’t appear sinister looking; or, though it might sound silly, that distracting stripes on shirts and ties don’t create distracting waves on videos. But, most important, as we have already seen to the dismay of some (irascible) judges, everything on a video can be seen and heard. It’s all live—no cutting. Beware!
Video Trials Shift Perspectives in the Courtroom
Consider a situation where a person’s freedom is at stake—an impending criminal prosecution. The Sixth Amendment enables him to “confront” prosecution’s witnesses. His lawyer, though, must see them to confront them. The defendant can’t wait until Covid-19 recedes and courts fully reopen. Only then can his lawyer look squarely at a witness—ideally, to accuse the witness of falsely or mistakenly implicating his client. Only then will the witness be required to look the defendant in the eye.
The only real way to proceed now in a courtroom, though, may be with a judge alone as fact finder—often from a distance. The defendant and his lawyer are in one place, the witnesses are in another. The judge is alone. All participants are only on screen. (In future courtroom trials, many more witnesses will testify remotely).
On most video conferencing platforms, just the witness’s face is seen. No hiding, or looking sideways. The witness will hope that the fact finder doesn’t see gestures betraying his insecurity over sketchy answers. As one’s facial imperfections become pronounced on a screen, so do his gestures.
The judge—as factfinder—sees everything. And the witness probably won’t notice the judge’s probing glance. In most American courtrooms, judges face the audience. The witness to her side, in parallel. The jury off to the side, perpendicular to them. The courtroom judge can’t really see the witness’s facial gestures. With video conferencing, she can. A witness on camera often forgets that someone is watching. Now, the judge can see everything.
Still, the defendant may also testify—he has far more to lose by performing badly. The same witness frailties, better exposed, will be revealed against him, too. Perhaps he taps his finger or sighs nervously when cross-examination roughens. Or beads of sweat, like those that doomed Nixon, appear at critical moments. Justice should be blind, but judges aren’t. The judge won’t miss anything—unlike in a courtroom.
Civil Litigation Will Change
It’s not the same in civil deposition testimony. There, the interlocutor, across the deposition table, looks squarely at the adverse party. He needn’t have a piercing camera watching the witness undress himself with odd facial gestures occasioned by defensive answers. And, importantly, the adverse party’s litigator won’t be making ultimate credibility judgments.
But civil litigation, too, will differ going forward, particularly in complicated cross-country litigation. Even when national travel opens, clients will no longer tolerate the exorbitant costs of distant depositions, done cheaper over a screen.
And in “defending” such depositions, the lawyer shouldn’t be fixed in witness preparation on the “taking” lawyer’s ability to see everything. More imposing is the deposition videotaped for trial use. Not because the adverse litigator has a better line of sight. Rather, it’s what the jury will see through the video. The piercing deposition camera will see the undisguised fear or torment on the witness’s face when the questioner throws a fast ball near the witness’s chin
Some additional thoughts, as lawyers strategize this new era. Lawyers look for visual cues and tells, not just from witnesses but also from judges and opposing lawyers. Until we move into full-on TV production and streaming, we will miss the judge’s fidget that often moves us along, or admonitions that kill momentum, interrupt flow, and create awkward moments of hesitation. Not to mention the opposing counsel’s tick that even the most poker faced among them can’t conceal. Finally, nothing really replaces the whisper or note from one’s own team.
In this era, we’re all producers and directors. Actors and set builders. Make-up artists and costume designers. And in the end? Nothing else to do but look squarely at the livestream camera—a camera that never blinks.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Joel Cohen practices white collar criminal defense at Stroock & Stroock & Lavan LLP. Previously, he served as a federal and state prosecutor. He is the author of “Blindfolds Off: Judges on How They Decide.”
David Sable is co-founder/partner of DoAble, a marketing consultancy focused on start-ups, new product development and launch, rebranding and resetting agency relationships. He is the former global CEO of Y&R, one of the world’s leading global marketing communications companies.