Virtual Arbitrations: Will They Be the New "Normal" Even When We Return To a Normal World?
By Katheleen A. Ehrhart, Freeborn & Peters LLP
Many litigators never dreamed they would ever find themselves cross examining a key witness through their computer screen or making a closing argument to a lineup of small Zoom boxes showing the faces of the triers of fact. Yet, now a full year into the global pandemic, many litigators find themselves doing exactly that. While clients and counsel are agreeing to virtual proceedings out of necessity to keep their cases moving forward, when current restrictions in many jurisdictions make in-person proceedings an unviable option, as counsel begin to navigate the differences between virtual platforms and in person proceedings, the question becomes do virtual arbitrations present certain benefits that might lead to their increased use even when in person proceedings begin regularly occurring again.
To state the obvious, virtual platforms present certain difficulties that in person hearings do not. How do you guard against witnesses communicating with others or looking at documents or information they should not while testifying? How do you present and examine witnesses on lengthy and complicated documents? How do you deal with the loss of human interaction in terms of being able to read the hearing room or control a witness during an examination? Or the loss of being in the same room and easily communicating with clients, witnesses, and each other?
The rise of Zoom, Goto Meeting, and other similar online platforms have vastly increased individual’s comfort levels and adeptness at communicating and presenting in a virtual setting. Building off that, and reaching agreement on some basic principles can help parties problem solve for many of the difficulties virtual proceedings present. The parties can agree to level the playing field and make sure everyone participates either separately or remotely or that if some individuals can participate together the same rule applies across the board. For example, maybe the parties agree that all witnesses will testify remotely, but attorney teams can be in the same room with each other during the virtual proceeding. A panel of arbitrators may prefer to participate together, or each participate from their own individual offices or homes as long as they have a virtual chat room to use for deliberations during the hearing. What matters is that the parties reach agreement so everyone follows the same rules and everyone has the same managed expectations.
Similarly, the parties should reach agreement on proper safeguards against outside influences on testimony. This may include admonishing all witnesses that they must be alone and cannot look at any materials other than what is provided to them during the course of their testimony. Witnesses can also be asked under oath to confirm they are alone and not looking at documents or other devices. Finally, witnesses can be asked to use their camera to show there is no outside materials near them while they testify.
With regard to documents, while many individuals have become very comfortable sharing documents over remote platforms, even the best witness may find it cumbersome to try and testify about a lengthy document that is simply being displayed to them through screen sharing. Parties should consider shipping hard copies of documents to witnesses and arbitrators ahead of time so that all have access to the full document if needed and there is no risk that an attorney unfairly takes a portion of a document out of context during an examination.
Another big consideration for a virtual proceeding is how does the attorney account for the loss of human interaction and its impact on her trial presentation as an advocate, such as reading the room and knowing when a point has been made and she can move on, or controlling a difficult witness with intonation and body language. Again, how the virtual platform is used is critical. The video boxes showing the triers of fact can be pinned so that the examining attorney can keep an eye on them at all times to read their expressions and judge for herself if the point has been made much like as if they were all in the same room. As for controlling a witness or having a dominant presence in the room during an argument, a lot can be managed based upon how the attorney positions herself on camera. Using a camera on a tripod rather than a camera built into a computer gives more flexibility to better model how she stands and moves during an examination just as if she were in an in person proceeding. These types of small tweaks in terms of how one uses the technology and options available for a virtual arbitration can allow an attorney to very closely model the same set up and presentation that she would use if the proceeding was done in person.
Using a virtual platform has many benefit for clients and litigators to consider. First and foremost, it lowers the costs of arbitration. Arbitration hearing space costs and travel and lodging expenses are all eliminated. Hearing time is also easier to schedule as no one has to consider the lost time of travel or being away from their home or office. Hearing time can also be built around smaller windows of availability because the need for several consecutive full in person days is eliminated. It is also easier to schedule witnesses with limited availability as to their schedule when all the other individuals need to do to participate is click on a button rather than attend an in person hearing.
The flexibility of scheduling and potential cost savings makes virtual arbitrations a serious option for parties to consider even when COVID restrictions are lifted and more in person proceedings begin again. Parties arbitrating small amounts in dispute may see the cost savings of a virtual arbitration as a significant benefit. By the same token, parties facing lengthy arbitrations may see real upside to not having to pay to rent a facility for several days or weeks when the proceeding can be done using a virtual platform instead.
Parties may want to also consider a hybrid, an in person proceeding for several days but virtual proceeding for such things as harder to schedule witnesses or finishing the hearing if it does not complete in the original allotted time. It will ultimately be up to the parties to weigh all the considerations and whether they are willing to trade off the attributes of an in person proceeding for the time and cost efficiencies of a virtual proceeding.
Katheleen A. EhrhartGGI member firm
Freeborn & Peters LLP
Law Firm Services
Chicago, IL, Springfield, IL, USA
T: +1 312 360 60 00
Freeborn & Peters LLP is a full-service law firm with international capabilities and offices in Chicago; New York City; Richmond, Va.; Springfield, Ill.; and Tampa, Fla. The firm serves clients across a broad range of sectors and targeted industries through its pioneer interdisciplinary approach.
Katheleen A. Ehrhart is a litigator and has tried cases and arbitrations in federal and state courts throughout the United States. In this role, Kathy represents a variety of individuals, corporations, business and professional firms.
Published: Litigation & Dispute Resolution Newsletter, No. 14, Spring 2021 l Photo: Kateryna - stock.adobe.com