If you reside on the East Coast of the United States, in the span of twenty years, you have lived through a devastating terrorist attack, a once-in-a-century Super Storm, and now, a global coronavirus pandemic. Each of these things has been considered to be a once-in-a-lifetime event, and yet many of us have lived through all of them. The same can be said of most other areas of the country that have experienced hurricanes, tornadoes, horrific storms, and other acts of God before the recent COVID-19 outbreak, resulting in shelter-in-place or stay-at-home orders. The legal industry has not been immune to this new environment, and legal industry practices will be different for lawyers and clients alike, at least the foreseeable future, and possibly forever.
One of the biggest changes that most businesses have had to make is the need to connect virtually rather than in person, and arbitration hearings are no exception. The authors were one week into a two-week arbitration hearing when New York City all but shut down due to the coronavirus outbreak, forcing the hearing to conclude via video. Countless others were in the same position, and video hearings may be the future of arbitration—at least for a little while. This article will set out some important considerations and best practices for conducting a hearing, or any other proceeding, via video. It will also touch upon applicable arbitral institution rules (or lack thereof) and discuss why this area is ripe for consideration by these institutions.
1. Technology Considerations
Zoom vs. Alternatives: Zoom is an inexpensive and effective platform for conducting virtual hearings. It allows many individuals to participate, and the Arbitral Tribunal and speakers are visible to all participants at the same time. Screen sharing can be used to display exhibits, demonstratives, and PowerPoint presentations. Note, however, that the party initiating the meeting must have an upgraded Zoom account to utilize many features, included organizing extended meetings and virtual break-out rooms. Moreover, there have been security and privacy concerns about Zoom that are currently being investigated. Many court reporting services offer alternative platforms that may provide for greater technical assistance as needed, but they generally provide similar features and are more expensive than Zoom. In-house counsel may want to encourage their companies to invest in upgraded Zoom accounts, if they have not already done so, which can be used for the client’s online hearings.
Transcription Services: Most court reporting services can provide transcription services via an online platform, including access to live transcription during the hearing for a daily fee. Live Note is available virtually, but participants will need a second screen or additional device in order to view it in real time while at the same time viewing the video conference. Many services charge per person logged into Live Note per day. In order to keep costs down for these services, clients may want to ask counsel to limit the number of attorneys logging in each day to only necessary participants, as the transcript will still be available to all attorneys and client representatives at the end of each hearing day.
Translation Issues: One potentially complicating factor when conducting remote hearings is the need for translation. While many translators can provide services remotely, such translation would likely need to be consecutive and would require speakers to be particularly careful not to speak over each other. If in-house counsel or another client representative speaks the foreign language in which testimony is being given, they can verify the accuracy of the translations (both in real time and in the transcript).
Test the Technology: To ensure a smooth first day of the hearing, the parties, witnesses, Tribunal, and court reporter should conduct a practice session and test the technology in advance. Witnesses will need to ensure they have cameras on their computers. Most importantly, everyone will need strong and reliable internet connections—particularly the Tribunal, witnesses, court reporter, attorneys, and client representatives directly involved in the proceedings. Even a short disruption in a key player’s internet connectivity can cause a time-consuming interruption or disrupt the rhythm of an oral argument or cross-examination.
2. Agreed-Upon Protocol
Implement a Written Protocol: Parties can minimize potential disputes by reaching an agreement on a detailed written protocol, including details about the schedule, exchange of exhibits, pre- and post-hearing deadlines, and other logistical matters. Although clients may not have conducted merits hearings via video previously, many companies have already been using videoconferencing effectively for other purposes and may have helpful recommendations on the protocol.
Exchange of Exhibits: The parties should outline how and when they will exchange documents and demonstratives in the written protocol, including the means for providing exhibits to be used during cross-examination to witnesses, opposing counsel, the Tribunal, and the court reporter. If acceptable to the parties and the Tribunal, it may be easier to exchange documents electronically, particularly during the coronavirus pandemic when many firms and document vendors have reduced onsite staffing.
Reliability of Testimony: Parties may want to consider implementing mechanisms to ensure the reliability of testimony, particularly with respect to fact witnesses. Possible safeguards may include requiring witnesses to be alone when they testify and to affirm that they will not look at email or smartphones during the examination. If hard copy documents are sent to witnesses before they testify, the documents can be sealed in a box wrapped in colored tape that the witness must open on camera in the presence of opposing counsel and the Tribunal immediately before testifying.
3. Presentation Considerations
Displaying Documents: It is important to make sure that the online platform chosen to host the video hearing includes a mechanism to display documents on the screen so that all participants can see them. Most of the online video platforms, including Zoom, have this feature. A team member or graphics specialist can display the documents, so the cross-examiner is free to focus on the examination. To ensure a smooth process, the person controlling the document process should have an electronic version of the cross-examination bundle readily accessible, as well as an outline of the cross-examination. Other significant case documents should also be easily accessible. It is helpful to pinpoint specific pages of documents or sections of technical drawings, spreadsheets, or schedules so that the process is as seamless as possible. One challenge, however, is that the examiner cannot point to specific parts of documents, which may require attorneys to alter their strategy or get creative with their questions.
Effective Cross Exam: The obvious difference when conducting a cross-examination via video is the loss of in-person face-to-face contact with the witness, the Tribunal, and opposing counsel. The witness should be positioned close enough to the camera to gauge facial expressions and other silent cues. There is some loss of momentum during a virtual examination because it is even more important than usual to wait until the witness finishes his or her answer before asking another question (both for the sanity of the court reporter and accuracy of the record). This does not mean, however, that the cross-examiner must avoid interrupting a witness who is providing a non-responsive soliloquy.
Communicating with Team Members: It can be more challenging to receive input from team members and clients located in different places during a virtual examination. A WhatsApp chat or group text message can be used to communicate with a larger team, including clients, as well as separate text messages with a second chair attorney. Short breaks may be needed to confer with colleagues and clients offline to streamline the examination.
4. Arbitral Institution Rules
Most of the various arbitral institutions do not have rules in place specifically addressing videoconference hearings, or more generally, addressing what to do in times of local, national, or global crises. For example, both the American Arbitration Association’s (“AAA”) construction and commercial rules provide that an arbitrator may “allow for the presentation of evidence by alternative means including video conferencing.” Similarly, pursuant to the JAMS Arbitration Rules, “[t]he Hearing, or any portion thereof, may be conducted telephonically or videographically with the agreement of the Parties or at the discretion of the Arbitrator.” The International Institute for Conflict Prevention & Resolution (“CPR”) is silent about videoconference hearings, providing only that unless the parties agree on the place for the arbitration, the Tribunal shall decide “based upon the contentions of the parties and the circumstances of the arbitration.” Rules promulgated by the International Chamber of Commerce (“ICC”), the London Court of International Arbitration (“LCIA”), and the Singapore International Arbitration Centre (“SIAC”) provide for videoconferencing for emergency procedures.[1] But none of these institutions appear to contemplate full merits hearings by video, much less provide specific rules for how such video hearings should proceed. Although arbitral rules are aimed at providing individual arbitrators and parties significant control over hearing procedures, as videoconferencing is the wave of the foreseeable future, it would be helpful to have specific, consistent guidance from these institutions on how these types of proceedings should be conducted.
More generally, parties would benefit from institutional guidance about how matters should proceed in the face of natural disasters or catastrophes. The COVID-19 pandemic hit the United States hard and fast, without much warning about how bad it would get in the blink of an eye. With many hearings already in progress, arbitrators, lawyers, and clients alike were faced with difficult decisions about whether to continue in-progress hearings in person (before shelter-in-place orders were issued) after having prepared for months, and with significant stakes, notwithstanding the risk that hearing participants could be unable to get home or subjected to quarantines, or whether to adjourn hearings without any idea about when a live hearing could resume and no existing rules or protocols in place for continuing by video. Although the various arbitral institution rules generally provide arbitrators with discretion to conduct a merits hearing as they see fit, explicit guidance about adjourning hearings during a global health crises, national disaster, or other widespread catastrophe would be valuable for parties and arbitrators alike.
We are in unprecedented times and they will require some adaptation, but we will get through them, as we always do, together.
[1] The ICC rules also allow for videoconferencing for case management hearings and expedited procedures.
