For example, much of the expressed reluctance to move to remote advocacy is a fear that attorneys may miss many meaningful non-verbal cues we can only read in person. Upon what data are we relying? I have yet to see any evidence that backs up the notion that lawyers are good at this in general—and certainly none to say we are better at it than the general public. If we subject ourselves to our own “Daubert” analysis, do we have any true science to back up our claims? Do we have any special training in nonverbal behavior? Can we cite to any scientific studies or literature that would support our assertion?

The Reality—We Can’t Read Non-Verbal Cues As Well As We Think We Can

The reality is most of us are not very good at reading nonverbal cues. Most likely our “gut feelings” are actually our implicit biases expressing themselves.  “What—she can’t possibly be right!”

Daphne O’Regan’s Introduction in “Eying the Body: The Impact of Classical Rules for Demeanor Credibility, Bias, and the Need to Blind Legal Decision Makers,” 37 PACE L. REV. 379 (2017), provides footnotes to multiple sources to back up this claim:

The Honorable Mark W. Bennett is only the most recent observer to lament that “[t]he standards for determining witness credibility have persisted as if frozen in time, based on myth, and completely unconnected with current knowledge of cognitive psychology.” Judge Bennett’s frustration is understandable. The belief that most people can reliably detect lies by scrutinizing the body of the speaker is quite simply false, a fact recognized for at least twenty-five years–or 2,500. Increasing awareness of implicit or cognitive bias in decision-making renders continued reliance on physical signs of credibility even more suspect.⁴

Our new narrative calls for us to learn how to build rapport through a screen and read facial cues from above a mask.  We must rise to the occasion, do some research, and learn new skills.

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