| Virtual Performance Lessons For Lawyers
From The Kansas Supreme Court ZOOM of April 11, 2020 By Katherine James, Founder, ACT of Communication™ ©April 15, 2020 |
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| The Kansas Supreme Court Kelly v. Legislative Coordinating Council et al. Live Streamed via Zoom April 11, 2020: |
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| Top Row Left To Right:
Chief Justice Maria Luckert, Justice Carol Beier, Justice Eric Rosen Middle Row Left To Right: Justice Dan Biles, Justice Caleb Stegall, Justice Evelyn Wilson, Senior Judge Michael E. Ward (filling in seat vacated by retired justice) Bottom Row Left To Right: Clay Britton (Governor Laura Kelly), Brad Schlozman, Edward Greim (LCC) |
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| There are many lessons to be learned by all lawyers from the Kansas
Supreme Court Hearing of April 11, 2020. I want to share with you the insights that I gleaned regarding some basic performance lessons for lawyers who try cases in this brave new world of virtual appearances. First, I want to say that every single person in this Zoom Hearing did their personal best to make sure that justice was happening that day in Kansas. And for that, every one of them deserves nothing but thanks and praise. Second, this “brave new world” of virtual court appearances, depositions, hearings and even trials is already here. I believe it is here to stay. Even in the legal world of post-Covid 19 the ease, efficiency and economy of “virtual justice” will have forged a place that is here to stay. That being said, lawyers are well advised to learn how to be their best “virtual” selves for the present and for the future. Bearing this in mind, I am going to “deconstruct” some of the basic elements of virtual performance that I observed working for and against the earnest and well-intentioned justices and lawyers in this setting. My knowledge comes from over sixty years of experience acting, writing and directing in the theatre, almost fifty acting in film and television and over forty teaching the skills gleaned from that “other” world to the law. You will notice that I do combine the lessons from both worlds in this commentary. Here’s how I suggest you maximize your learning from this article. 1. Read the article through once, making note of where the justices and lawyers are placed. The top of this article shows you where their screens are placed on the monitor. 2. Please watch the You Tube Video of the proceeding I have referenced at the top of this article keeping the ideas in the article in mind. 3. Re-read the article and see if the lessons in it are more firmly anchored for you now that you’ve seen the You Tube Video. 4. Write me with questions, comments and other insights you have found from your watching the video that you think I have missed: katherine@actofcommunication.com. I’ll be happy to respond. |
| Know Where Your Camera Is, Face It, and Find Your Eyeline Hands down, Justice Caleb Stegall knew exactly where he should be sitting. Square on to the camera. In the dead center of the screen. He was looking straight into the camera. This is what actor’s call “Finding Your Eyeline”. We look into the camera and we pretend there is someone there we are talking to if we are in a movie or TV show and we are in “close up”. This is not easy to do in ZOOM when you are talking to several other screens as Justice Caleb Stegall was that day. But he resisted the temptation to talk to the screen of the lawyers he was addressing as much as possible and spoke straight into the camera. In ZOOM and other platforms virtual play readings are happening all over the world now since no one is going to the theatre in person – actors and audience alike. Like an actor in a ZOOM play reading, Justice Caleb Stegall was able to have the image of the lawyers he was addressing in his head as he looked at them by addressing them in the camera. Not an easy task, but it can be mastered with practice. |
| What Is Behind You? You are setting the stage for how you want to be viewed in a virtual setting. You want whoever is looking at you to let what is behind you “fall away” from their attention and just look at you. You would think that a blank wall would be best, wouldn’t you? Yet when you look at Lawyer Clay Britton’s plain wall it feels cold, sterile, and is a bit jarring. Several of the screen backgrounds inadvertently call attention to themselves either because of what is in the background or because of where the camera is placed or both. I think that the most successful setting is that of Lawyer Edward Greim. We are in his office, the image behind him seems balanced and full – the chair on one side balances the books on the other side. The second most successful setting is that of Justice Dan Biles. The almost total background of books again is very balanced and we are much more taken with him than what is behind him. Do you see how Justice Carol Beire’s corner is unbalanced and off putting? Just slightly. There is something unbalanced about the background and the fact that her camera is off to the side that makes me slightly uncomfortable. When she moves forward to address the lawyers her “set up” makes her move diagonally which is not her intention. I am sure she thinks she is presenting exactly the same way that Justice Caleb Stegall is presenting. Justice Evelyn Wilson has a fairly successful background with the texture of the chair and she fills the screen very well so we tend to disregard what is behind her, which is the idea. Right? The slight lack of balance of the background of Chief Justice Maria Luckert is interesting. If she were squarer to the camera with the painting behind her it might work. Clearly, I’m preferring balance and books and would love to see her without that odd corner in the background. For extreme out-of-balance backgrounds and camera settings spend a bit of time looking at the screens of Justice Eric Rosen and Senior Judge Michael E. Ward. Do you feel uneasy as you look at them? Without knowing why? This is why. Camera and background. For small background distractions, look at the screens of Justice Caleb Stegall and Lawyer Brad Scholzman. By having unbalanced backgrounds, they draw the eye and cause the mind to wander. What IS it with that baseball cap in Justice Stegall’s background? And is that a copier…or a shredder…or what is in Lawyer Scholzman’s shot? And why am I looking at that instead of listening to what they are saying. Or what someone else is saying who has “The Focus” of ZOOM at any given point in the proceedings? In the theatre, we are always aware, or always TRY to be aware of what our “set” looks like. Even in these times of ZOOM play readings where every actor is in a separate space, we, too, are learning that what is behind us makes a difference to the audience every bit as much as it does when we are playing in front of an award winning set. Some lawyers are already creating “virtual” backgrounds for themselves which they simply “put” behind them on screen. Their conference rooms, libraries, whatever they feel is appropriate. They prefer a really wonderful professionally taken shot they may already have of their conference room to their home office which may very well double as a guest room for their in-laws. |
| What Are You Wearing? It is wonderful to be able to give every single person in this proceeding an “A” for costuming. The Justices all showed up in their robes as opposed to golf attire. The lawyers all looked as though they, too, were wearing court attire. My own personal favorite attorney outfit belongs to Lawyer Edward Greim. He gets an “A+” from me because it appears as though he planned that his outfit was courtroom attire and coordinated to fit in perfectly with his background. This may sound ridiculous to some lawyers. However, in a welldesigned piece of theatre, film or television show you may not (often ideally) be aware of the effect that the scene designer and costume designer are having on your ability to simply focus in on the “show” itself. Which in this setting is always going to be the lawyer’s face. Everything else should simply “fall away” and our focus should always go to the face. Right now there are people who are making appearance without, literally, wearing pants. There was recently a complaint by a judge that lawyers are making virtual courtroom appearances not wearing shirts. Not even getting out of bed, but appearing with the covers pulled up to their chins. As an actor, I can tell you that whether the camera sees you are wearing pants or not is not as important as the fact that you know whether you are wearing pants or not. Psychologically, unless you are “dressed for an appearance”, chances are more likely than not that you won’t give your best performance. Many actors will tell you that they don’t completely realize the character that they are playing until they put on the costume. You think it is a burden to put on your pants, socks and a pair of shoes? Imagine putting on a corset and high-topped button boots. But without the corset and boots how on earth would I begin to play Dolly Levi in The Matchmaker? You are playing the best lawyer in The United States today. Please dress that way. Your client deserves it. |
| Lighting Just as in any kind of production that involves a camera, the main source of light has to come in front of the person on the screen. In fact, diminishing or eliminating “back light” is vital. Look at the lighting in Justice Dan Biles’ screen. Notice how your eye gets disturbed by the floor lamp in the back of the room. That is “back lighting”. Also, you need a separate source of light in front of your computer screen. Otherwise you are basking in a very eerie computer blue light. Justice Eric Rosen has light bouncing off his screen that is blue and behind him that is blue on the second screen. Makes total sense that he wanted to have the logo of The State of Kansas behind him. However, between the odd angle and the bouncing of blue light on his face he needed to make a different choice or add more light in front of the screen in front of him. Justice Eric Rosen’s slight lighting error is committed far more egregiously every day right now in this brave new virtual world. I see lawyers in offices that have absolutely no light at all except for the eerie blue light of their computer screens. They look like they are in very odd Zombie movies being shot in caves. What kind of a message does that give the eye of the beholder about them and their argument? I know this is subliminal. I’m not suggesting that bad lighting turns a great argument into a bad argument. But wouldn’t you rather make it “easier” to listen without giving the mixed message to a judge in a hearing that you have just risen from the dead and removed the stake from your heart in order to make this motion? Light directly over your head or under your face can also be problematic. If you want to see the difference between light directly over you and light in front of you, look at the screen of Lawyer Brad Schlozman. See how the light above him literally bounces off his forehead? He has such a wonderfully expressive face when he makes his arguments. I hate to see this “lighting from above” distract us from his sincere and authentic “performance”. I am pretty sure that lighting from above is fluorescent lighting – always harsh and tough in real life, let alone as a light source for the screen. He also has an issue with his glasses. It is an investment to get “non-reflective” lenses. However, those reflections which now distract our eye from his wonderfully expressive eyes will be minimal. Also, once everyone is back in “real” courtrooms once more, nonreflective lenses in glasses pay off many times in the harsh fluorescent light of many of the courthouses lawyers practice in across the country. The lighting to emulate belongs to Justice Caleb Stegall, who appears to be aware of the need to have light in front and Lawyer Edward Greim who also appears to have either accidently or purposefully taken advantage of a light source in front of him. Even though their settings are completely different do you see how their faces are the most important thing in their screens? How you are naturally drawn to their faces and expressions without anything getting “in your way”? In Hollywood, lighting designers who can “light” actors’ faces masterfully are revered for a very good reason. Now you have an understanding as to why that is so. |
| Being Heard Is Still The Most Important Part
Of Any Proceeding The challenge of being heard and understood in the virtual world is a new and difficult challenge that lawyers are facing. Lawyer Edward Greim spends most of the proceeding simply looking great. But then…it comes time to speak. Is it that he has a bad microphone in his computer and he is using his computer microphone for the proceeding? Is it that his microphone is unidirectional (can’t pick up any sound unless it is spoken into directly) instead of omnidirectional (picks up sound from every direction)? Notice that when he turns his head that you can’t hear or understand what he says. Is it that he is too far from the source of his wi-fi connection? So he doesn’t have “the bandwidth” for clear sound? My experience tells me that if that were the case that his picture would also be “unfocused” and go in and out. He would have a lot of lag time and freeze and start if this were the case. There is a moment early on where the tried and true courtroom admonition “just speak up, please” works. That is with Attorney Clay Britton in his first argument when he is clearly standing far away from his microphone (which I am pretty sure is in his computer). He puts more volume in his voice and then we can hear and understand him. But that tried and true instruction from a number of the Justices to Lawyer Edward Greim doesn’t have the same result because it can’t. It isn’t about his voice – it is about his mike. You do not ever want anyone to have to make an effort to hear you. The effort to hear you takes away from their ability to listen to what you are saying. And listening to what you are saying and understanding your argument is, and always will be, the most important part of the law as far as I can tell for the rest of time. |
| Cutting Off One Another’s Speeches This is one of the most difficult parts of this brave new world. You know how court reporters bemoan the fact that they can’t take down testimony when two people are speaking at the same time? Well, virtual platforms like ZOOM cut people off who are in midsentence and then have lag time before the person who cut them off can be “heard”. This again, leads to having an interruption starting in midsentence. You will see this again and again in this proceeding. But the nature of speaking in a proceeding with a judge – especially a supreme court argument – is a give and take of interruption, question, and explanation. It is the very heart of how these proceedings “traditionally” go. In a courtroom, a lawyer will quickly stop talking and tune in immediately to the question that a justice or a judge is asking. In these settings, lawyers have to be willing to stop for a moment and say, “Your honor, I want to make sure I heard the first part of what you just said” and repeat back what the lawyer believes the justice or judge asked. Resist the temptation to answer your own question. Wait for the judge or justice to clarify what the first part of the “cut-off” question or response was. Yes, this will take time. It may even take out the wonderful adrenalin rush that both lawyers and judges get from the fast back and forth banter of fine minds working through fascinating and important legal issues. But again, this is always going to be about the record: what is said, what is heard, what is taken down. And virtual platforms are just not yet sophisticated enough to allow for natural overlapping, verbal “exchange” that we are used to. |
| Have A Plan For Screen Movement Justice Caleb Stegall has a clear plan. When he is “not speaking” he moves his chair slightly back so that we see him not in close up, but in a slightly distant shot. When he speaks, he moves forward, filling the screen with a close up. Our eyes go to him immediately when he moves. The ZOOM system focuses on him – you can tell by the green rim around his screen. He then and only then speaks loudly and clearly into his microphone. He might not do this “perfectly” every time, but this is clearly his intention and as far as I am concerned he is the most adept person in the whole proceeding at using ZOOM. Making Justice Caleb Stegall the person from whom you can learn the most about how to do things “right” in my opinion. |
| Sitting Is Better Than Standing Lawyer Clay Britton chooses to stand at the beginning of the session. By the end of the session in his rebuttal argument, he is sitting. Watch how much more effective he is when he is sitting than when he is standing. It is anti-intuitive for most lawyers to sit in front of the court. I completely understood that Clay Britton was trying to show deference to the court and make it seem as though it was “business as usual”. It is preferable to sit and be “the same size” as your opponents and whoever is trying the case. Do you see how Mr. Britton actually looks smaller than everyone else because we are looking at most of his body from what we would call a “long shot” in the movie business? And how much more effective he is in “close up”? In his rebuttal argument, in fact, he wins “most improved player” for me. Compare and contrast his performance from the beginning of the proceeding to the end and see if you don’t agree with me. |
| Little Movements vs Big Movements Making notes is a “small” movement. Again, Attorney Edward Greim at first has his notebook off to the side and has to take his eyes off the camera to make his notes and looks like he doesn’t want to be seen. You are “on” at all times, just as you are in the theatre. Or in court. Everyone can see you. It is ok. It is a small movement and doesn’t interrupt the flow of the proceeding. Attorney Clay Britton, on the other hand, has to “walk” from his standing position to his chair. He takes his laptop with him. These “Big Movements” are distracting for a few reasons. First, because it takes the focus of everyone in the whole proceeding. Many virtual platforms are set up to have the screen “take focus” and become the predominant screen when there is a big movement in that screen or the person in that screen talks. Attorney Clay Britton did not intend to suddenly take focus at that moment (you can see that the program is trying to give him focus because his screen is highlighted with a green rim). He was just trying to quietly move and let another lawyer be in the spotlight. I was in a ZOOM reading of one of the plays I have authored the other night and one of the actors finished with a scene they were in and got up and walked out of the room for a moment – totally taking focus away from the next scene that was starting. If Attorney Clay Britton had already been “in place” then he could have saved the distraction. Just as my actor could have saved the first part of the scene they were not in. |
| Double Check Your Screen Name Lawyer Edward Greim has “Ed Greim” as his screen name. Probably because that is what his ZOOM account says. If I don’t change my name I appear as “ACT of Communication”. The problem for Edward Greim was when he had to state his name for the record, he had a hiccup in the proceedings where he had to say, “Ed Greim”. Theatre actors are learning that they can change their screen names to the names of the characters they are playing which makes for a better identification and performance enjoyment for their virtual audiences. Take a lesson from an actor who is supposed to be playing Mary Todd Lincoln tomorrow night who would rather the audience see her character name than “ACT of Communication”. |
| In Conclusion Was the Kansas Supreme Court ZOOM of April 11, 2020 problematic? Absolutely not. Could it have been “better” – that is easier to see, understand and follow for everyone involved? Absolutely. The tools, techniques and skills that I have pointed out in this article can be mastered. It takes effort and a willingness to be “the best lawyer you can be” in this brave new virtual world. The time to start learning is now. Your clients deserve it. |
| Katherine James Founding Director ACT of Communication™ 310-391-9661 actofcommunication.com katherine@actofcommunication.com ©April 15, 2020 |