Sink or Swim: The New World of Virtual Testimony

Most people do not realize how different it is appearing in court through virtual technology compared to being there in person. Valuation experts who have not yet had the “pleasure” of attending virtual hearings may be concerned about it—and rightly so. In person, you are in control of how you look and sound, but, when you are online, you are at the mercy of technology, which can make you look good—or very bad. Fortunately, at the recent AAML/BVR Virtual Divorce Conference, valuation experts and attorneys shared their experiences and tips for testifying in a virtual world.

Here to stay

Zoom meetings and similar technology-driven ways to avoid in-person conferences and trials are here to stay, speakers say. This requires the attorney to ensure best use of the technology. Attorney Kelly Shindell DeLacey (DeLacey, Riebel & Shindell) says her firm has used a consulting firm (of which there are many) to tutor attorneys on lighting, camera position, makeup, and other aspects related to presentation, so the attorneys and their clients can make a smooth appearance in court. Make sure to pass these technical insights on to experts and clients. At a minimum, attorneys or financial experts must test the technology before they appear at deposition or in court.

Attorney Joy Feinberg (Feinberg Sharma PC) says be careful about camera position when doing a witness direct examination and a cross-examination of the opposing expert. You want to be able to be face-to-face with your expert and look at the opposing expert and convey your authority. She says that it is important to educate the court about the need for eye contact. Don’t let the judge place the witness upfront, looking straight into the camera.

More stressful 

A lot of valuation experts have yet to testify online. But Kenneth Pia (Marcum) has testified virtually a number of times in various states, and he points out that testifying this way is much more exhausting than doing it in person. For one thing, there’s a lot more to worry about, such as the technical glitches that can happen—and almost always do. Also, judges are getting impatient with the technology because it often takes longer to do things due to connectivity issues or delays with audio and video.

Among the many tips he gave, Pia recommends that you have a practice session (or two) before the day of the hearing. Test your connectivity during the practice sessions and again on the morning of the hearing. Also, be sure to join the hearing at least 30 minutes prior to your scheduled time in case updates need to be performed before connection can occur. If you can, try to have IT troubleshooting backup in place during the hearing.

Pia also discussed adjusting your surroundings so that you give the best appearance possible on camera. All too often, we see bad camera angles and terrible lighting that can make anybody on camera look very bad. Pia recommends that you set yourself up so that your background has very simple (organized) décor or a blank wall. He also suggested that you position the camera so it is above you, not below you, with the light coming from the front. We agree with this but make the following additional points:

• If you have the camera above you, don’t put it too high—and it’s OK to have it directly at eye level;
• Your eyes should be one-third of the way down from the top of the frame (we often see the camera tilted too high so that the presenters look like they’re sitting in a hole);
• Lighting from the front is the way to go, but that can create bad shadows, so try to have some “fill” light from different angles to reduce the shadows; and
• If you’re wearing a jacket, sit on the end of it so it doesn’t ride up your neck (an old trick TV newscasters use).

It is also important to remember that, although you may be attending a remote hearing, it is no less formal than a courtroom, Pia notes. He advises that all protocols should still be observed and proper courtroom attire should be worn—including pants, he quipped.

Show time 

Pia also gave some good tips to follow when you are “on the air”:

• Maximize your audio. To minimize echo and feedback, audio can be connected through your phone. During the hearing, your audio should be muted unless you are required to speak. Don’t forget to unmute yourself before you talk!
  
  
• Be courteous. Not only should you dress as if you are physically present in the courtroom, but you should also behave as if you are in the courtroom. This means that you should not use your phone, chew gum, eat, converse with others, get up and walk around, etc. When it is your turn, speak slowly and clearly. Do not interrupt others when they are speaking (especially the judge).
  
  
• Eliminate the possibility of interruptions. Put your phone on silent mode during the hearing or mute the sound on your computer audio. If there are family members or other individuals in your home, tell them to remain outside of the room, and warn them not to walk behind you or try to converse with you while you are “live” with the court. If you have pets, make sure they are located in another area and unable to cause interruptions during your appearance.
  
  
• Watch what you say (type)! If the chat feature is selected, remember that messaging may not be private—everyone in the meeting may be able to see it. Only use the chat feature if you are instructed to do so.
  
  
• Stay calm. Technology is not perfect, and there will always be glitches, even with technical run-throughs and practice. Remote hearings are expected to take longer than those being held in-person because of connectivity issues and delays with video and audio. It is a learning process for everyone, including the judges and attorneys.

Finally, Pia points out that it is sometimes easy to get distracted when sitting alone at your computer. Therefore, you need to take preventative measures to avoid that from happening especially when you are participating in a virtual hearing.

Conclusion

The AAML/BVR Virtual Divorce Conference was held Sept. 9-30, 2020. To get more tips from top valuation experts and attorneys on a variety of business valuation and divorce topics, be sure to check out the training pack of session recordings that is now available for purchase.