By Dr. Ken Broda Bahm:
When you’re dealing with testimony, argument, or any other form of communication, it is easy to assume that you’re getting less when it is distanced. In a remote conference or any Zoom-like experience, it seems that the literal distance and the technological disconnect leads to less of an impression, including an inability to read subtle non-verbal cues, as well as a difficulty or impossibility to engage in mutual and reciprocal eye contact. Many believe that this leads to less influence, less connection, and ultimately less empathy for a party or witness in litigation who appears via remote video. Some pre-pandemic studies looking at immigration and bail hearings have suggested that there could be something to that. But as the subject is being researched in a more robust fashion during our continuing COVID-reality, a more complex picture is emerging.
Two social science-minded law professors, Susan Bandes and Neal Feigenson, conducted a review of the current literature (Bandes & Feigenson, 2021), including its strengths and weaknesses, and concluded that the jury is still out on whether we, or a jury, would have less empathy for a remote communicator. “While there are reasons to suspect that the exercise of empathy may be altered on Zoom or comparable platforms, thus far there is no firm evidence that the remote nature of legal proceedings, in itself, reduces empathy for litigants, witnesses, or other participants in legal proceedings.” In this post, I want to briefly unpack that conclusion and emphasize a few salient points.
Empathy is Complex
Empathy has many factors to it, with the ability to see another person’s situation having both logical and emotional components. Any given situation of extending or withholding empathy likely depends on a variety of things, with many of those being more important than the mode of transmission. The ability to expand our understanding also is an ability that filters through many layers of bias, including egocentrism and an ability to bond more easily with what we see as similar to ourselves.
We Don’t Yet Know If Remote Communication Reduces Empathy
The authors emphasize that there have not been enough studies on the empathy effects of remote communication. The areas studied so far include immigration and bail hearings, and those may be substantively distinct from other litigation situations. In addition, there are other factors, like the presence or absence of language interpreters or poor audio and video quality, which may limit the generalizability of the results. In addition, in many of the situations studied, the person communicating over video conference is unique in being the only one appearing remotely, so the effect may not translate to situations where everyone is remote (settings that have not yet been studied in an empathy context). The only two controlled studies looking at the effects of remote witness testimony (from child witnesses and sexual assault complainants) did not find significant differences in empathy for the remote participants.
When We Use Remote Communication, We Should Use It Well
Still, there are reasons to be cautious, to keep studying, and to consider the potential effects in the context of your own case. The authors note, for example, that remote communication may work to the disadvantage of those who already face less empathy based on gender, race, age, or class. “Of greatest concern are the possible effects of virtual proceedings on empathy for those who are already subject to empathy deficits.”
In response, they counsel designing remote systems to address deficiencies, improve quality of view and resolution, and enhance the sense of presence that we have in the best in-person settings. And, ultimately, we will want to make sure the limitations of any one medium are not disproportionately focused on one party, or one type of party. In the meantime, there isn’t a basis to presume that distanced communication alone will cause fact-finders to feel less empathy for your witness or yourself.
Other Posts on Distanced Communication in Law:
- Testimony Mode: Note the Tradeoff Between Information Density and Juror Sensitivity
- The Post-Pandemic Courtroom: Reflect on When Remote Court Still Makes Sense
- Adapt to Remote Communication (Including Testimony)
Bandes, S. A., & Feigenson, N. (2021). Empathy and Remote Legal Proceedings. 51 Southwestern Law Review Issue 1 ( (Symposium on Courts in the COVID-19 Era). December 2021 Forthcoming. URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3892880