True witness preparation is an intensive and extensive process that should be done in person, face-to-face. But the current COVID-19 crisis has created a world in which often the preparation, and the testimony or interview itself, must be done remotely. The first step is understanding the added challenges imposed by remote preparation.

For effective witness preparation, counsel must create a connection with the witness, listen carefully to their concerns, and communicate the rules of this very different and unnatural environment. Not being in the room with the witness—watching and listening carefully, communicating directly, understanding the body language and everything else that comes with in-person meetings—adds greatly to the level of difficulty. Let's address five key points.

• Lay the foundation.

Knowing that communication is more difficult when done remotely, take advantage of every opportunity. Send your witness a memo in advance, describing the environment and going through some basic rules for witnesses. Ask them to read it carefully and mark it up with any questions or concerns that it brings to mind.

• Discuss the environment.

One advantage of a live courtroom trial is that all of the official trappings of the process are constant reminders to the witness of how formal and unnatural this is, and how hard they have to concentrate. Wherever the remote witness may be (home, conference room, office) is a much less formal, less intimidating environment. That's nice, but the risk is that such informality will make them become more conversational and relaxed. This is NOT a conversation, and much of what we do to keep a normal conversation interesting and flowing is not appropriate in a witness environment, whether live or remote.

• Remember the basic rules.

Some rules that normally apply for effective witness testimony become more important in a remote environment, such as:

Slow down. Everything needs to go slower on video. Everyone involved, including the witness and counsel, need time to think, react or object.

Be careful with documents. Because the handling of documents can be more awkward and complicated in a remote environment, it's tempting for the questioner to avoid showing them to the witness. But no witness should get into a debate with a document that's not in front of them. If you are asked a question, the answer to which is contained in a document, ask to see the document, then read it carefully. If not shown the document, make clear that you'd just be guessing.

Use your counsel, and take breaks. Because they're on camera and sitting by themselves, witnesses don't feel comfortable asking for a break. But they should take them when needed, and counsel should be sure to ask for them if the witness doesn't. The remote environment does not lessen the critical need for intense focus and energy from the witness. This is a marathon, not a sprint.

• Take time with tech.

The remote witness environment relies on a wide variety of technical solutions to voice, video and document sharing. Every witness has a different level of familiarity and comfort with tech issues. Find out what systems will be used for the testimony itself and for handling documents. Explain it to the witness, demonstrate it and then practice on the same systems to be used during the actual testimony. Don't be tempted to practice on "easier" technology (your cellphone).

• Prepare for Murphy's Law.

Being a witness is already a stressful experience. Imagine the added stress when technology goes awry and interferes with the process. Assure your witness in advance that this happens all the time, everyone understands and that, although frustrating, it is not a reflection on them or anything that should deter them from being a good witness.

The Process of Preparation

Without the immediacy and direct connection of a face-to-face meeting, expand your opportunities to effectively communicate what a witness needs to know in this difficult and unnatural environment.

• The Rules Booklet

Give your witnesses a binder with some basic rules, tips and advice so they have something in their hands (and take home and review later). None of us learn effectively using only one of our senses (our ears), so it's good for people to have something to read, to hold, to consider. That need to supplement the spoken word becomes even more important in remote communication.

• The Issues Outline

Again, with the witness being remote, it may be helpful to prepare and provide the witness with an issues outline: a summary overview of the issues, what documents relate to them and what their likely responses are based upon prior discussions and other materials. Not a script: I am not a believer in providing witnesses with a written-out script.

• An Exhibits Binder

Technology is great but risky. If you need to go through key documents with your witness in preparation, consider putting hard copies in a binder and sending it to your witness in advance. Get them used to handling documents remotely, clearly identifying what they're looking at and listening carefully to instructions as to where to go on the document while also remembering to read the entire document, not just the one word or phrase that the questioner wants to highlight.

• The Dry Run

There is value in doing an extensive and realistic dry run with every witness. With a remote witness, that becomes even more essential. Relatively few witnesses have experienced a remote question-and-answer process, and you should not allow your witness to experience it for the first time in the real proceeding.

• Smile: You're on Camera!

In live testimony, it's easier for the witness to understand where to look and how to act. Sitting alone at home or in an office, it's easy to forget. Yet appearance and credibility matter just as much or more on camera. Everything is magnified on camera: small movements, where you're looking, what you're drinking, etc. Remind them that they should look up, face the camera and try not to fidget. They also need to dress like they are in a live courtroom (no pajamas).

Depositions and Trials

Depositions and trials present their own unique challenges, but the same basic rules apply. Strategize in advance how you can confer off-line with your client, witness or co-counsel. Make sure you have more than one phone in the room (for texting or calling as needed) or a separate laptop with a video conference for strategy meetings during breaks.

To prepare for a trial, think ahead about exhibits. Find out what systems and software the court will use (or allow), test them with the court or clerk, then explain them to your witness. Since the technology allows the questioner to quickly "call out" a particular word or phrase from a long document, witnesses needs to understand their right—and responsibility—to slow that process down and read the entire document.

Then we get to the trial itself. Ideally, direct examinations set up a conversation between the witness and the lawyer. The questions are often not so much questions as they are prompts to move testimony forward or in particular directions. However, conversations move and flow based in part on non-verbal cues: the pause, gesture, movement, facial expression, etc. Obviously, it is much harder to send or receive such signals through a tiny video screen. If questioning a witness on direct remotely, help them focus intently on picking up as many cues as possible.

On cross-examination, everything changes. Non-verbal cues become less important than the precise words of the question. Prepare the witness to avoid being distracted by anything they see on the screen. For questioners, it can be much more difficult to build momentum in cross-examining remote witnesses. Physical distance can create a psychological distance also. The witness should be prepared to not help the questioner build momentum. Slow down so everyone can be sure they heard the testimony and for counsel to object if necessary.

To prepare a witness for a remote interview or testimony, counsel must carefully consider what makes preparation and what makes the actual testimony more challenging. Good preparation considers both aspects. Being a witness is unnatural, as is talking to a camera. Put the two together and you increase the challenges of the experience exponentially.

Dan Small is a partner in Holland & Knight's Miami and Boston offices. He practices in the area of litigation, focusing on witness preparation, dispute strategies, government and internal investigations, white-collar criminal law and complex civil litigation. He is the author of "Preparing Witnesses and Going To Trial" (4th Edition, 2014), published by the American Bar Association, and is host of the Powerful Witness Prep Podcast Series.