August 9, 2022

Volume XII, Number 221


August 08, 2022

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Avoid Gaze Aversion in Your Deposition Video

Every experienced communicator knows that eye contact can be key to credibility. A communicator who maintains strong eye contact has power and immediacy, while one who avoids eye contact conveys weakness and a lack of confidence. For witnesses, that understanding is easy enough to apply in situations of live testimony: Look at the examining attorney while the question is being asked, then look at the individual jurors while delivering the answer. But what is the correct advice in a deposition? As video-recording increasingly comes to be the 'standard of care' that attorneys bring to depositions, should witnesses be making eye contact with the camera, the deposing attorney, or something else?

A new study reported in the current issue of The Jury Expert takes a look at this question. Three consultants from Tsongas (Dominic, Jarman & Lytle, 2015) looked at the question, "Will jurors infer gaze avoidance by the lack of direct eye contact with the camera?" They recruited 274 participants for an online study that presented the same witness clips (either a plaintiff or a defendant) viewed through different camera angles: either directly in front of the witness (next to deposing attorney) or off to the side. In both cases, the witness maintained eye contact with the attorney, although the 'in-front' condition, the team reports, created the appearance of eye contact with the camera. The bottom line result is that the camera angle didn't make a difference. In this post, I'll take a look (both direct, and somewhat sideways) at the "where do I look" question, the case for a camera- or an attorney-focus during deposition, and the study results. 

The Case for Camera-Focus

The argument for looking into the camera is based on the simple advice to “Look at your audience.” For a deposition video, the most important audience is a future jury potentially viewing a clip during trial. Just as television viewers would expect a newscaster to be looking into the camera, some say jurors would expect a recorded witness to be looking at them. On face at least, this appears intuitive. The article from Dominic, Jarman, and Lytle reports on research going back decades documenting the close connection between eye contact and credibility, both generally as well as in a legal communication context. Direct eye contact creates immediacy and attention, and conveys greater confidence and control. While cultures vary on when eye contact is given and withheld, there appears to be a near-universal belief that liars avoid eye contact. 

The Case for Attorney-Focus

Those who counsel witnesses to instead look at the attorney, reason that focusing on an inanimate object (the lens) in a room full of people could look and feel artificial. Or worse, it could appear too polished or too calculated. A witness who is intentially trying to play to the camera could seem like an advocate and not a witness. In the unique context of a deposition, the witness eying the camera could be less like a television newsman delivering the day’s headlines to the camera, and more  like a guest on an interview show who is oddly ignoring the interviewer and focusing directly on the camera instead. While the camera should be located as close to the deposing attorney as possible (so the direction of the witness’s gaze is brought as close as possible to the camera), attorney-focus advocates maintain that it is easiest and most natural to focus on the person who is asking you questions.

The Research: No Measured Difference

The result from Dominic, Jarman, and Lytle is essentially that it doesn't matter. "The witness," they conclude, "was no more or less credible when he was recorded looking directly at the camera than when he was recorded at an angle. Neither camera position offered an advantage over the other." Now, purists will argue that you can't draw a conclusion from a null result, and might also point out that the team didn't offer a complete test because in the "direct" condition, they arguably conflated looking at the camera with looking at an attorney seated close to the camera. They explain:

"One possible explanation for the null results of the current study is that the witness maintained strong eye contact regardless of the camera angle. The witness rarely broke eye contact with the attorney asking questions. While the attorney was not visible, the witness looked straight ahead. In the direct camera angle condition, it created the appearance of looking into the camera. But, even in the angled camera condition, it was clear that the witness maintained eye contact with someone who was off camera."

Even with that observation, however, the study is consistent with the beliefs that a) eye contact matters, and b) eye contact doesn't only  mean eye contact with the lens of the camera. It would be interesting for the Tsongas team to conduct a manipulation check on their test video clips: Do participants feel that the witness is looking directly at an off-camera attorney or looking directly at the viewer, via the camera's lens? When the questioner is off camera, can the research participants tell whether the witness is making eye contact with that questioner versus looking at an inanimate object? It would be very interesting to see a follow-up on this research. 

The Recommendation: Do What Is Comfortable...But Avoid Gaze Aversion

In the meantime, the implication during deposition preparation sessions is to continue to encourage eye contact as an important indicator of confidence and power. Up to this point, I’ve been relatively agnositic on whether this eye contact means a camera-focus or an attorney-focus question. Generally, I'll counsel witnesses to do what feels natural, which is typically to look at the attorney, not the camera. Occasionally, however, I’ll work with a witness who does better when they’re looking into the camera. For example, when the deposing attorney is either intentionally or unintentionally distracting the witness, a camera-focus can be an easy way to shut down that distraction. 

But at a bottom line level, here's what witnesses need to avoid: 

  • The 'table gaze' of speaking directly into the surface in front of them. 

  • The 'notes gaze' of focusing on papers even when the witness isn't using them. 

  • The 'friendly attorney' gaze of looking at your own counsel instead of the deposing attorney. 

  • The 'swimming gaze' of looking around the room at everything or nothing. 

All of those are forms of gaze aversion, and a long line of research says that gaze aversion makes you less credible. Instead of avoiding gaze, practice it. During preparation sessions, look at the attorney and don't worry that in doing so you're averting gaze from the camera. Dominic, Jarman, and Lytle note, "The participants did not penalize the witness, or otherwise judge them to be less credible, since they were making eye contact, even if it wasn’t directly with them." 

Copyright Holland & Hart LLP 1995-2022.National Law Review, Volume V, Number 194

About this Author

Ken Broda-Bahm, Ph.D., Holland Hart, Rhetoric lawyer, Legal Persuasion Attorney
Senior Litigation Consultant

Dr. Ken Broda-Bahm has provided research and strategic advice on several hundred cases across the country for the past 16 years, applying a doctorate in communication emphasizing the areas of legal persuasion and rhetoric. As a tenured Associate Professor of Communication Studies, Dr. Broda-Bahm has taught courses including legal communication, argumentation, persuasion, and research methods. He has trained and consulted in 19 countries around the world and is Past President of the American Society of Trial Consultants.