Pants are optional and forget stilettos

How to “stage” your client for Zoom mediations, from what to wear to background settings to lighting

Debra Bogaards
2020 August

Since the outbreak of coronavirus in the U.S., retailers have found that “sales of men’s shirts and women’s tops have increased as more people work remotely. Pants sales, though, aren’t up. Walmart says the answer can be found in video conferencing. Remote workers want to look good as far as what’s visible.”1 One commenter noted: “It’s a business mullet: All business on the top, and ‘I’m going back to bed’ on the bottom.”2

On my first Zoom mediation as a mediator, I proudly kicked off my trademark stilettos and showed my flip flops on camera to plaintiff’s counsel. We both had a good-natured giggle about the new dress code. This leads me to the unique considerations, especially clothing, when preparing your client for his, her, or their (hereinafter, “they”) Zoom mediation.

On top

Most clients already know how to dress for success from the top up. In other words, wear shirts or blouses suited for business but keep their pajamas or sweatpants out of camera’s view.

Still, some guidance from you, their lawyer, will help them make a great first impression. Your client’s choice of clothing causes others – the mediator, the defense counsel and the claims adjuster – to make some assumptions, sometimes correct and sometimes incorrect, about who they are. Honest? Sympathetic? Above-average witness potential? Let your client’s clothing help, not hinder, them in making their best first impression at Zoom mediation.

It’s your decision as to how informal or formal you want your client to dress from the top up. A good rule of thumb is a business client (doctor, lawyer, accountant, CEO, sales rep, etc.) should dress in professional attire. A non-business client can dress more casually. The problem is, “casual attire” is pretty loose and all over the place.

For this reason, a few concrete examples from my plaintiff’s practice may be beneficial to illustrate your role in assisting your client to look their best on camera.

The depressed techie

Plaintiff, in his upper 30s, is terminated as the No. 1 sales representative for an Israeli startup under the pretext of poor performance. In his employment lawsuit, he is a whistleblower. Although he is a superstar at the startup, his dream of moving up to a C-level position in the company vanishes. Plaintiff is depressed and out of work for almost a year. He splits up with his fiancée. He stops going to the gym, and gains weight.

During our pre-mediation meeting, after not seeing him in person for a few months or more, my client appears with shaggy hair, overgrown beard, and baggy sweatpants. He needs to appear in a professional tailored suit to show that he is a successful tech superstar who will be a formidable plaintiff at trial. That calculated decision – rather than show him as a loser – paid off. At my direction, he buys a tailored Zynga navy-blue blazer to appear powerful, confident, and successful. My hairstylist grooms his wild hair and crops his beard.

My client feels much better about himself and his self-worth. He projects his restored confidence to the mediator and follows my advice to hold out for a larger settlement because he’s worth it.

The Harley Davidson motorcyclist

Plaintiff, a motorcyclist who suffers a below-knee amputation has ample and colorful tattoos as well as a distinctive handlebar mustache and narrow long beard. His photos from his hospital bed and in social media show this side of him, and our narrative includes his years of being homeless before he finds sobriety. However, as a trial lawyer, I want to show the mediator, defense counsel and the claims adjuster how my lovable client can clean up for trial (and still be his authentic self).

At Zoom mediation, my client appears in a blue, button-down long-sleeved shirt (ordered online) to hide the tats, as well as his favorite black leather vest sans heavy silver biker chain. His girlfriend trims and dyes his grey beard to match his trademark and prominent handlebar mustache. His longer hair is clipped back.

My client remains true to himself and comfortable with a few tweaks. He also wears black shorts so he can push his wheelchair back from the conference room table to show his stump to the mediator.

Meth and drugs: Two brothers

A diseased limb of a eucalyptus tree on a deserted path falls on a 40-year-old meth addict and single mother. My client, the 26-year-old son, brings a wrongful death action. He is a juvenile delinquent who dropped out of high school, never works and gets high every day. He and the pregnant mother of his three children are raising his 15-year-old brother.

So, my lanky client has long, stringy hair, greased down with Moroccan oil, that he hasn’t cut since age 14, slight facial hair and soul patch, a ratty sweatshirt, and major attitude. He also has a phobia of people and distrust of lawyers. Casual business clothes from Banana Republic and a haircut for both brothers and pregnant girlfriend set a more appropriate tone for the Zoom mediation. A crisp, small plaid button-down shirt with a cotton blazer helps my client look more presentable. Role-playing on giving eye contact, how to engage in small talk, and the process helps tremendously.

The working mom

The busy young mother of two loses her exciting journalism job after her trip-and-fall accident, in which she suffers a trimalleolar ankle fracture. She has surgery, weeks in a wheelchair, and a permanent loss of range of motion in her ankle, which affects her ability to play with her children outside. Then COVID-19 hits, and her limitations are magnified. With a forced sedentary lifestyle due to her immobilizing ankle injury, my client loses confidence in herself.

My client sends me three possible outfits for her Zoom mediation. The navy, light-blue and white dress with a pearl necklace is just right. The pattern on her dress brightens up her appearance, and necklace completes the outfit. My client, the busy mom, takes time to apply her makeup and do her hair, so she looks very polished and confident. By assisting her with her clothes, she is less anxious and feels more control at her Zoom mediation.

The takeaway

Women have more fashion options and therefore, dressing for Zoom mediation takes more consideration. Stay away from large patterns, low cut cleavage-revealing blouses, tops that are too tight and tops that are too big. Makeup and hair is also important. The camera picks up the eyes, so mascara applied to both upper and lower lids, eyeliner and eyebrow pencil are a given. Light foundation and blush soften and highlight female clients’ faces. And a hair appointment before the day arrives is also recommended.

All clients should wear blue or brown colors and avoid black and gray colors in their clothes. Blue is the color of maturity, rationality, precision, capabilities and high values.3 It is the color of trust, honesty, and loyalty. It is also conservative and predictable. Clients dressed in dark navy blue will exude confidence, trustworthiness and intelligence. A self-confident client will make a good impression on the mediator. The brown color is friendly and approachable, faithful and trustworthy. Brown is associated with good quality, practical, affordable, stable, reliable, protective, sincere, and honest.

For trial or traditional mediation, I often like to dress my clients in blush or nude tones4 as it softens them and can make them appear more sympathetic. However, for Zoom mediations, these colors will wash them out or have them quickly fading into the background.

While my two personal favorite colors for clothes are black and gray, your client should not wear black and gray to the Zoom mediation. While black makes people optically thinner, is elegant and timeless, on Zoom black is too severe and authoritative. And gray is non-emotional, indifferent, lonely and boring.

Virtual Zoom background

Selecting a virtual Zoom background is as important as dressing your client for success at Zoom mediation. In fact, your client should avoid wearing any clothing that is the same color as the wall or background behind them. Otherwise, the software for the Zoom camera gets vermisht.5 A virtual Zoom background lets you choose any image as your background. Why use one?

Too many tchotchkes

A messy or cluttered environment can distract the mediator while she talks to your client. So, you may want to hide the tchotchkes.

Example: Plaintiff lives in a small studio apartment and positions himself in the kitchen, which has blank walls. There are bottles of dishwashing soap, sponges, a rack to dry dishes and other clutter for the kitchen in the background, which distract the eye.

Example: Plaintiff sets up their laptop in the living room with a view of the entire house. Sofa, armchairs, bookcases, lamps, souvenirs from their travels and framed pictures on the walls clutter the view of the plaintiff.

Drab white wall

Once plaintiff removes the distractions like small picture frames from the wall and the dead plant from the shelf, they are left with the drab white wall. It’s dull and lifeless. The white palette does nothing to enhance plaintiff’s shayna punim.6 That’s why videographers who videotaped depositions pre-COVID-19 used blue screens against your white office wall.

Too much natural light

A laptop facing nearby windows may wash out plaintiff on Zoom. With a faded, washed-out presence, you diminish your plaintiff at Zoom mediation. Sometimes, merely facing the other direction from the windows will clear up that problem.

A natural garden setting in your client’s background may be a tranquil option. However, the same issue with too much sunlight or wind may exist. A sharper and better image of your client may be guaranteed inside their home.

Surprise appearances

Sometimes a meowing kitten, affectionate puppy, or small child makes a surprise appearance. While adorable the first time, a continued interruption may be distracting and even annoying. Plus, the human who accidentally comes on camera may not be dressed… or dressed right. So, it’s best that your client knows to block off a half day or a whole day without interruption.

What virtual background is the best for your client to use in the Zoom mediation?

There are free images for virtual background on Zoom, on the internet, like Seinfeld’s T.V. shows living room, the Office T.V. shows hallway, Hall of Justice (DC Comics), the Batcave, and RuPaul’s Drag Race, to name a few. However, these examples may be too busy or too inappropriate for mediation. I like to choose from my iPhone photo library or internet, a photo of the blue water and sand in Santa Cruz, blue sky with Mt. Tamalpais, green grass or a neutral color.

Position of the camera

Place the camera so that the frame captures your client’s shayna punim. Ideally, the camera should align with your client’s eyes. Try using a stack of books or invest in a tall laptop stand.

Position your client’s screen so that they can look directly at the camera lens while speaking. Suggest that your client minimize their image so that they avoid the natural tendency to look at themselves. In this way, the mediator, defense counsel and claims adjuster feel like your client is making eye contact with them.

Pre-mediation Zoom trial run

In addition to your usual pre-mediation call to your client in which you explain the mediation process and manage your client’s expectations, you also need to devote time during the call to procedures unique to Zoom. In fact, I strongly suggest making this a Zoom meeting so you can do a trial run and dress rehearsal. We’ve already discussed selection of clothing and virtual background. Next, test your client’s internet connection. Is the Wi-Fi adequate? If their living situation is too chaotic or demanding, consider renting a court reporter’s conference room near your client’s home that will rent them a laptop for Zoom and set it up for them.

The conference room, whether in your office or a rented conference room, is a great option since your client will not be as comfortable as they are in their own living room and they may focus more on saying “yes” to a settlement. Your client is in a different world with a different perspective in the more formal conference room. That’s why, in pre-COVID days, going to an intimidating office building for mediation sessions worked well. There was the long drive, expensive parking lot, obligatory line at Peet’s and then a day spent in a confined space with no distractions. At the end of the day, your client is worn down, exhausted and ready to settle. So, to get down to business, it might be worthwhile to host the Zoom mediation for you and your client in your office or rent a nearby conference room for your client.

To avoid surprises and distractions, ask your clients to decline unrelated cell phone calls, avoid multi-tasking and get childcare coverage. This mediation is important, as it may end the protracted litigation through settlement. So, help them make the Zoom mediation their priority.

Discuss how you plan to communicate with your client, assuming both of you are on Zoom from your respective homes. While you are in a virtual breakout room, the mediator can join at any time. So, you may want to communicate with your client by email, text, or phone. Remind your client to turn off the microphone on Zoom when taking a break or when using a cellphone, so as to not interfere with the Zoom meeting.

Now, time to focus on the dress rehearsal. Have your client sit up straight and look directly into the camera. Does your client appear comfortable and natural? Is your client talking in a conversational manner or like a deer caught in the headlights? Do you like the clothing and Zoom background?

In summary, to prepare your client to dress successfully for their Zoom mediation, discuss what to wear on top, select the best virtual background, and do a dress rehearsal. With preparation comes the highest settlement for your plaintiff. Now, kick off those stilettos and go!

Debra Bogaards Debra Bogaards

Debra F. Bogaards has a new solo practice, Bogaards Law, in the Union Square district of San Francisco. She is both a mediator and a plaintiff’s attorney. In 2019, she stopped doing insurance defense work for State Farm and Mercury as well as private clients after 37 years. Her mediation practice is well suited for her, given her strong background in both insurance defense and plaintiff’s personal injury, employment, elder abuse and tenants’ rights cases. An accomplished trial attorney, she has successfully completed 37 jury trials and one bench trial, and she’s been a Northern California Super-Lawyer for the past 14 consecutive years. She also is Vice President of the U.C. Hastings Board of Trustees. In her free time, Debra enjoys cycling in West Marin.

http://www.bogaards.law

Endnote

1 Retail Wife, March 11, 2020. “Teleconferencing Workers Change Walmart’s Sales Mix” by Al McClain.

2 Georgeanne Becker, Principal, Kizer & Bender, Speaking.

3 All About Colors in One Place, by Bojan Lisjak 2019.

4 When you hear something referred to as a “nude” color, what image comes to mind? . . . No, wrong… The fashion industry sees “nude” as a color ranging from pale pink to light tan.

5 Yiddish word meaning “confused.”

6 Yiddish word meaning “pretty face.”

Copyright © 2020 by the author.
For reprint permission, contact the publisher: www.plaintiffmagazine.com