Practice Makes Perfect When It Comes To Virtual Hearings

By Caroline Simson
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Law360 (April 15, 2020, 7:56 PM EDT) -- Widespread shelter-in-place orders enacted to slow the spread of COVID-19 have forced many technophobic arbitration lawyers into conducting virtual hearings, but practice and assistance from institutions can help even the least tech-savvy get comfortable with this new normal.

It wasn't long ago that many arbitration lawyers would refuse to even consider conducting a hearing in a high-stakes matter entirely remotely, but the choice between proceeding with a remote hearing or postponing the hearing indefinitely is one that's facing many practitioners these days.

In one recent example, a hearing in New York in a $500 million dispute involving a party represented by Chaffetz Lindsey LLP had been chugging along as planned until March 13, when President Donald Trump declared a national emergency. By March 15, the group of international parties and witnesses had all been sent home ahead of impending travel restrictions.

The situation saddled the Chaffetz Lindsey attorneys with a previously unimaginable choice: Either they'd have to continue the hearing virtually, with all the parties participating by video from their homes or offices, or they'd have to put everything on hold. They chose the former.

"I think if we'd had to decide in advance whether to do a two-week hearing about a $500 million dispute by video, I'm not sure we would have decided that with a positive answer," said Chaffetz Lindsey partner Yasmine Lahlou. "But if you've had a week of hearings, and you have the potential of losing the momentum ... and you think you've done well with your witnesses, and it makes so much more sense to continue with the experts and to continue with the same dynamic, then you do it. It was a somewhat unique set of circumstances."

The technology to conduct virtual hearings has been around for years. The International Centre for Settlement of Investment Disputes, for example, said last year around 60% of its hearings and sessions were conducted remotely, including by video conference.

A significant number of hearings also have a virtual component to them, meaning that participants like witnesses or experts will participate by video conference, ICSID Secretary-General Meg Kinnear told Law360.

But many lawyers have been wary of relying on the technology to any large degree. Kinnear said the main concern of many parties in recent weeks has been whether they'll be able to read the tribunal and witnesses in the same way as if they were in person.

Lahlou and Chaffetz Lindsey founding partner Peter Chaffetz noted that in their case, they were concerned about having sufficient bandwidth to ensure the flow of the hearing would remain the same as if they were in the same room.

So the demand for such technology never really met the supply — until now, when lawyers have few other options, according to the American Arbitration Association's general counsel and corporate secretary, Eric Tuchmann.

"In terms of what history has shown us, there has been a movement toward video hearings, but it hasn't really taken hold. This is changing," he said, noting that parties are having to weigh whether to postpone their scheduled hearings, possibly indefinitely, or hold them remotely.

For what it's worth, at least some of those who have conducted virtual hearings say their concerns were unfounded.

Kinnear, for example, noted that the concerns voiced to her by attorneys subside once they become familiar with the technology, which has improved by leaps and bounds since it was first introduced. And the Chaffetz Lindsey attorneys, who noted that they held a technical rehearsal among the participants to address any glitches before the hearing got underway, told Law360 their fears were quickly dispelled.

"With the necessary preparation, it was seamless," Lahlou said, referring to the transition from in-person to virtual hearings. Chaffetz noted that he "found it quite easy to concentrate. Secretly, you can stretch your legs if you want and not miss anything."

Still, among the uninitiated, the choice can be a difficult one.

Many arbitral tribunals are already paranoid about due process concerns, since arbitral awards may be set aside if a party can successfully claim they were prevented from properly presenting their case. Now, they're having to decide whether to yield to concerns from one side that wants to delay the hearing so as to avoid having to proceed virtually, or ensure that all parties are ready to proceed virtually.

The question then becomes, how long of a delay is possible?

"I would say that arbitrators are sensitive to the fact that, on the one hand, parties aren't prepared to immediately move to a video hearing. They need to deal with things like security and how things are going to work," said Tuchmann. "On the other hand, you can't just postpone the case indefinitely."

The AAA and other arbitral institutions are doing what they can to assist parties that may be uncomfortable with the technical aspects of conducting hearings virtually.

Some are even undertaking tasks akin to what producers do when putting together a television program, such as deciding which individuals are going to be the focus at any given time — meaning whose pictures will be the largest on screen and whose microphones will be muted at the appropriate times — and how evidence will be shown on the screen during processes such as cross-examinations.

The institutions say they've spent a lot of time over the last few weeks ensuring that attorneys, parties, arbitrators and others — like witnesses and experts — are comfortable with the videoconferencing platform. At the AAA, that's a Zoom-based system, while ICSID relies on Cisco's Webex, which Kinnear noted has high levels of security, including end-to-end encryption, and the ability to host large numbers of participants.

Efforts also have been made to keep these virtual hearings as close to the real thing as possible by incorporating things like "breakout rooms" so the parties and arbitrators can have a private place to discuss the proceeding.

Perhaps most important is ensuring the parties have an opportunity to practice in order to address any technical and practical issues that arise.

"It isn't just about turning something on and starting to use it," said Diana Didia, the AAA's chief information officer.

She noted the organization is working to default to "best behaviors," including ensuring parties have a PIN for Zoom meetings — a security measure to prevent "Zoom-bombing," whereby hackers pop into and disrupt meetings.

Owen Lawrence, the CEO of the International Arbitration Centre in London, said they offer a technician to help arbitrators and parties overcome any technical difficulties and ensure that the parties can see the people they want to be looking at at any given time during the hearing.

He said the key is "letting lawyers be lawyers and arbitrators be arbitrators."

Other offerings available to attorneys to help with moving proceedings online include the U.K.-based Opus 2, which offers an electronic platform to manage international arbitrations, including virtual hearings.

The company offers dedicated project and case managers who help ensure all the parties have sufficient bandwidth and that the proceeding is adequately secure, and dispel any fears that witnesses are being coached, according to Opus 2 chief strategy officer Steve Fleming.

"What we've sought to do is pay quite a lot of attention to any concerns that are raised by clients, but also to be on the front foot with this type of stuff as well," he said.

For now, it doesn't appear as if lawyers will be going back to conducting in-person hearings for at least a few months. But it's possible that by then, they'll start to embrace the technology a bit more than in the past.

"[Lawyers] want to make sure it works — they want to make sure they can present their case and that documents can be controlled," said Tuchmann. "There's a lot of logistics to figure out, but the legal community is made up of a lot of smart people willing to adapt and work hard. I think the underlying consensus is that people are willing to move in that direction."

--Editing by Kelly Duncan and Philip Shea.

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