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Litigation News

Litigation News | 2022

The Medium Is the Message

Mark Drummond


  • Three quick tips for professionalism in a remote work setting.
  • Classically, a hammer extends our arm and the wheel extends our legs and feet. Each enables us to do more than our bodies could do on their own. 
  • Similarly, remote advocacy has resulted in our computers becoming the “extension of ourselves” into the remote courtrooms.
The Medium Is the Message
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I first heard of the communication theorist Marshall McLuhan while watching the movie Annie Hall (1977) several decades ago. In that now famous scene, Woody Allen’s character is irritated by a man standing behind him in line to see a movie. The man is droning on and on to his companion about diverse topics ranging from Federico Fellini to Marshall McLuhan.

The scene climaxes when the man behind Allen starts talking about what Marshall McLuhan “meant.” Allen “breaks the fourth wall,” talks directly to the camera, then pulls Marshall McLuhan from behind a movie poster, who proceeds to tell the man that he does not know what he is talking about. Allen then deadpans to the camera, “Boy, if life were only like this.”

Scholars have long debated what McLuhan “meant” by his phrase “the medium is the message.” For the definition, I turn to Mark Federman, the former chief strategist for the McLuhan Program in Culture and Technology at the University of Toronto who writes, “McLuhan defines medium for us as well. Right at the beginning of Understanding Media, he tells us that a medium is ‘any extension of ourselves.’ Classically, he suggests that a hammer extends our arm and that the wheel extends our legs and feet. Each enables us to do more than our bodies could do on their own.” Similarly, remote advocacy has resulted in our computers becoming the “extension of ourselves” into the remote courtrooms.

The first two paragraphs in this article appear in a piece I titled “Marshall McLuhan, Remote Jury Selection and Voting in America.” That piece dealt with my thoughts on the possible effects, over a very long period of time, of “extending” the courthouse into people’s homes and workplaces through remote trials. Much of McLuhan’s work focused on the long-range effects of using various mediums to convey the message. Let’s say the message is about a violent crime. According to McLuhan, whether that message is delivered in person, read in a newspaper, heard on the radio, or shown on television matters.

My focus here is on the short range and (1) how the medium (remote advocacy through the computer) affects our message, (2) what message is sent when that medium is used poorly, and (3) how we can correct it.

For this, I turn to another expert, Carol Sowers, who spent 30 years of her life looking into a camera nearly every day as a television reporter, producer, and anchor. Since leaving the anchor’s desk, she has trained attorneys around the world in communication skills. Since the pandemic struck, we have jointly trained over 100 attorneys in two-hour coaching sessions for the National Institute for Trial Advocacy. Here is what I have learned from Carol and that training.

1. Smile for the Camera

Problem: Not looking at the camera
Message: “I know I am talking to you, but I can’t find you!”
Fixes: Talk to the camera, listen to the screen, hide self-view, and use sticky notes

We are used to looking at people’s faces when we talk to them. We tend to do the same thing when we see their faces on the computer screen. As odd as this sounds, their faces are not “them.” “They” are really that quarter of an inch dot next to the small green light at the top of your screen. Only when you are focused on that green dot are you “looking them in the eye” and communicating.

One fix to focus on the camera is to take two sticky notes, draw arrows pointing in on each, and place them on each side of the camera. One person told us that she stuck “googly eyes” on either side of her camera to remind her to look at her listeners.

Once you have looked at your setup on camera, hide your “self-view.” Studies reveal that people spend 80 percent of the time looking at their own face on the screen! This totally defeats the feedback loop we usually depend on when talking with people.

When we are in person, we are tuned into the listener’s facial expressions. Is the listener nodding in agreement? Does the listener have a quizzical look on his or her face? Should I ask if I need to clarify? Great communicators pick up on these cues and adjust accordingly. You cannot do that if you are looking at your own face most of the time.

Another fix is to arrange the tiles so that the person you want to talk to, whether it be the judge or a witness, is at the top nearest the camera. This helps you gauge their reaction to what you are saying without much eye movement away from the camera on your part.

2. Stay Level

Problem: Camera is not at eye level
Message: “I’m talking down to you and…do you like my ceiling?”
Fixes: Shoeboxes, books, adjustable desks, etc.

Probably over 90 percent of our coaching sessions begin with a great view of the attorney’s ceiling. Add a rotating ceiling fan, and the attorney looks ready to lift off of the chair at any moment! Most of the time, nearly half of the screen above the attorney’s head is wasted.

If you can see your ceiling in your setup, your camera is not at eye level. You will be “talking down” and “looming over” your client, the jury, and your judge. Do whatever it takes for you to raise that camera so you are looking directly at the person you are trying to persuade.

Next, adjust the camera so the top of your head about touches the top of the screen. You should not be able to wear an imaginary hat. This will allow you to use gestures with purpose. You don’t want your hands exploding from the bottom of the screen with random gestures. That message is distracting. You do want to use your hands for meaningful gestures when you make a point such as “Your honor, there are three reasons [hand visible] to find in our favor on this issue.”

3. Avoid Clutter

Problem: Multiple monitors, notes, and coffee cups
Message: “I think there’s a fly in my office.”
Fixes: Put everything you need on one side and be transparent

A two-monitor setup will help with remote trials. With two monitors, you have the witness on full screen and also the exhibits on full screen. Problems arise when attorneys have the second monitor on their left, their notes on their right, and perhaps another monitor above. When the attorney looks right, then left, then down, then up, the attorney appears disorganized.

The first fix is to keep everything you need on one side. It makes no difference which side, but this will mean you are looking off camera in only one direction. The second fix is transparency. Tell the court, or state for the record on the video deposition, the arrangement of your setup. Explain why you will be looking “off camera” from time to time. Simply explain, “Your honor, I want the court to know that I have my exhibits on the monitor to my right and that is why I will be looking over there when using them.”

All of this can be distilled down to one point: eliminate distractions. With these three simple fixes, you will eliminate the distractions that harm your message over this medium.