The Legal Intelligencer - Changing Lanes: Effective Strategies for Arbitrators and Advocates Handling Virtual Proceedings
Some experts believe that the COVID-19 pandemic is behind us as the numbers of vaccinated people increases and cases wane. But even if we believe COVID-19 is in the rearview mirror, the impact on how we practice law is enduring. As so many of us adapted to remote work and virtual proceedings, there is likely to be a resistance to returning full bore to in person proceedings. The cost savings and easy access of remote arbitrations are enticing to clients, counsel, and neutrals. As long as the remote option remains, participants need skills to perform as effectively on screen as they would in person. This article offers strategies on how to prepare clients and be most effective in virtual proceedings.
A Historical Perspective
Over the course of my four decades practicing law, I have experienced firsthand the monumental and unexpected changes in the industry. In the early 1980s, lawyers did not have computers, cell phones, tablets, or voice mail. I remember the pink message slips on yellow legal pads, sticky notes tagged on documents as responsive, privileged, etc. and spending countless hours wading through endless stacks of documents in conference rooms and warehouses. I practically moved into my firm library camped out behind a mountain of casebooks researching for hours. Nearly 40 years later, I spend much of my workday at home with a laptop preparing for and participating in litigation and alternate dispute proceedings, all the while interacting with colleagues, opposing counsel, witnesses, experts, court reporters, and judicial officers virtually with the click of a button. In recent times, many of those hours have been serving as an arbitrator in high stakes, complex matters. Observing counsel navigate the virtual experience, I commend them for their creativity, flexibility, and civility under pressure. I learned valuable lessons working with many skilled practitioners and share valuable pointers below for others participating in virtual arbitration.
When handling an arbitration online rather than in person, there are new considerations. Anticipating the challenges and preparing for them can make the difference in the outcome for your client.
- Arbitrator Selection
Generally, the arbitration agreement sets parameters for arbitrator selection and the forum administering the case. Many arbitral forums have modified their procedures to take virtual proceedings into account; but parties can agree to their own protocols for arbitrator selection and the proceedings. The agreement may specify qualifications that the parties expect the neutral arbitrator to possess such as industry experience, years of practice or particular legal expertise. As the proceeding may be virtual, counsel should assess upfront whether a potential arbitrator has experience handling matters remotely and their comfort using technology. Parties can request that potential arbitrators provide that information. Seasoned neutrals should already include that information on their biographies provided to parties considered them.
- Agreeing on Virtual Protocols
Although we are accustomed to managing document discovery virtually, as opposed to exchanging boxes of hard copy documents, there are many aspects of arbitration that are novel in the virtual world. When conducting a remote arbitration, counsel has to consider issues related to depositions, hearings, and the use of exhibits. Parties are well served in agreeing to protocols and submitting them to the arbitrator for approval. Unfortunately, parties cannot always agree. Some of the threshold issues that should be addressed relate to how, when, and where depositions and hearings should occur. Many of the challenges for depositions and hearings are the same. One party may be pushing for in-person proceedings, while the other may object to appearing live due to health risk, travel concerns, or expense. Participants also have to consider local law governing vaccine mandates, masking, and limitations on indoor gathering. Ideally, counsel should try to agree on these issues. If not, the arbitrator will likely decide.
Assuming the parties agree or the arbitrator orders that all aspects will occur virtually, there may be disagreement as to whether everyone must be separated, or whether counsel and client may be in the same room. Opposing counsel conducting the questioning from another location may be concerned about whether the witness is being improperly coached or consulting materials that are unknown to the questioner. Counsel should have a thoughtful plan on who can be with the witness, confirming who is in the room, confirming that the witness is not consulting documents or conferring with anyone without full disclosure to the opposing counsel. If not addressed upfront, these issues invite dispute and potentially taint the integrity of testimony.
Another challenge is handling exhibits during depositions and hearings. Usually with depositions, the parties have produced documents in advance, but are not required to alert counsel as to what documents will be used during questioning. To maintain the element of “surprise,” one effective strategy is to send opposing counsel a sealed envelope containing the documents to be marked at deposition with an agreement that the seal will not be broken until everyone is on the screen. Similarly, before questioning begins, the interrogating lawyer should include instructions to the witness that address identifying everyone in the room and all documents used to answer questions. At hearing, the parties are usually required to create a join exhibit list. The parties should agree upfront as to the technology to be used for exhibits, but also have a back up plan if technology fails. It should be obvious, but counsel should be facile with using that technology. I have been in arbitrations where counsel fumbles pulling exhibits, highlighting portions, or otherwise maneuvering technology. The hearing is not the time to acquaint yourself with the platform and its functions. Counsel want it seamless without distraction. Selecting a court reporter or technology provider with a track record of handling virtual proceedings can spare counsel headaches.
- Preparing Clients and Witnesses
Participating is stressful for clients who have a lot at stake and for witnesses who may be unfamiliar with legal proceedings. For some, it may be easier participating from the comfort of home or their lawyer’s office, rather than being in the room with opposing parties, counsel, and the arbitrator. Even without formality of live proceedings, clients, and witnesses should be prepared for the usual process of testifying under oath, listening carefully to questions, remaining silent while an objection is pending, and being respectful to participants. With a virtual proceeding, there are additional guidelines worth sharing with clients and witnesses. First, it is a legal proceeding, therefore respect for the forum is just as important. They should present appropriately in their appearance and the background that may be visible to others. Ideally, they should testify from counsel’s office, but if that is not viable, counsel should preview the client’s background in advance to observe how the person and their surroundings will present on screen. Just as counsel needs to be tech-savvy, all the participants should be prepared to use the technology and access exhibits for a professional presentation. The arrangements overall should minimize other potential distractions, such as family members.
- Maintaining Professionalism and Preparing for the Unexpected
Even though we are not appearing in person, we are bound by the rules of professional responsibility, civility codes and rules of the forum and arbitrator. It benefits everyone to collaborate on protocols that advance the proceeding efficiently without sacrificing reliability of the testimony or other evidence. We also know from experience and the many stories in the media that things can go wrong when working online. I have been in proceedings where the platform fails, one of more participants lose internet access, someone drops off when a family member signs on to the internet, a witness can’t access exhibits, and children or pets climb on lawyers during presentations. Some of these can be avoided, others less so. To minimize disruption, participants can: exchange telephone numbers in advance; have back-up devices if your primary device fails; test your connection and technology in advance; engage an experienced technology provider to handle snafus; and alert others in your household that you are in proceedings and should not be disturbed. In addition, it helps to be patient and maintain a sense of humor.
- Consider a potential arbitrator’s experience handling proceedings virtually and the arbitrator’s facility with technology.
- Encourage clients to review and update arbitration agreements to reflect the increased likelihoods that proceedings may be virtual.
- Clarify arbitration agreements to specify whether one or both parties must agree to go virtual so that one party cannot use mandated closures to postpone, or set time limits on how long a live proceeding may be delayed.
- Try to agree on protocols for handling depositions, hearings and exhibits or the arbitrator will likely impose their own.
- Practice using the technology in advance so you can easily manage exhibits. Make sure all participants including the arbitrator have hard copies if needed.
- Prepare clients and witnesses to present professionally and to be comfortable with the technology and using exhibits.
- Don’t lose sight of your ethical and professional obligations.
- Have contingency plans for unexpected technical issues.
Reprinted with permission from the January 5, 2022 issue of The Legal Intelligencer. © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.