The question of whether COVID-19 would forever change the world as we know it remains to be answered. For the time being, however, the pandemic has certainly changed the way we live and conduct business. In an effort to adjust to the current requirements of strict social distancing, we have had to be creative and use technology to our advantage. For instance, in order to sustain the administration of justice, we have had to allow virtual hearings to become the new norm.
In April 2020, Richard Gunn (partner), Elli Aidini (associate) and Katherine Varney (trainee) were involved in a three-day virtual arbitration hearing via Zoom. The experience was unique for all. Although initially there were concerns about the confidentiality of the process and the ability of the parties to overcome technical difficulties, the hearing was concluded successfully. In this article, we will attempt to share our experience of a virtual hearing and recommendations for conducting such hearings in the future.
Zoom was the platform used in our hearing. All attendees were asked to download the application to their computers in advance of the hearing. To ensure the hearing was secure, it was password protected with the password changing daily. The arbitrator had the names of all the attendees and was in charge of providing access to each individual separately every time they rejoined the virtual hearing room. If an individual was not confirmed as an attendee, the arbitrator would not provide access and the individual would remain in the virtual waiting room.
In addition to the above, we arranged to have a live transcript and live evidence. The live transcript allowed the attendees to remain fully updated with any developments even if, for example, they temporarily lost internet connection and were left out of the virtual hearing room. Furthermore, the live transcript was of great assistance to the experts during cross-examination as they were able to read the questions being asked before answering. The live evidence enabled the parties to see the documents that were being referred to on their screens without having to search for the documents themselves. An operator was in charge of finding the relevant page from the hearing bundles and sharing it via a shared screen with the parties.
All bundles were prepared electronically with each party being responsible for preparing their own hearing bundles. Each bundle consisted of a continuously paginated pdf.
The electronic bundles were sent to a third party printing company, which arranged urgent printing and couriered the bundles to the key participants, such as the arbitrator and counsel. In addition, a core bundle or list of documents prepared by each counsel and provided to the arbitrator was very useful as it provided a consolidated list of important documents.
An essential aspect of preparing to conduct a virtual hearing is ensuring that all attendees are comfortable with the technology. In our case, prior to the hearing we had two demonstration calls with both sides’ clients, solicitors and experts as well as the arbitrator and the technical support team. This allowed issues that might otherwise have interrupted the hearing to be spotted and fixed. For instance, a question arose as to whether each counsel would refer to the hard copy document page number or the page number of the electronic version as seen in the tool bar of the pdf file. Counsel decided to rely on the hard copy document page number and not the pdf version as they were using their hard copy bundles for cross-examination purposes.
Separately, it is advised to check with the participants regarding their arrangements at home, for instance:
- whether they would be able to use a room without being interrupted during their cross-examination;
- whether they have a computer or laptop with a camera and a microphone; and
- whether they have a good internet connection, preferably by cable to make the connection stronger as opposed to a wireless connection.
Whilst in our case we did not have factual witnesses being cross-examined during the hearing, we did have expert witness cross-examination. The experts were asked before the hearing to make sure that they did not have any notes in front of them during their examination. They were also reminded that no contact with their teams was allowed during the time they were giving their evidence.
In cases where factual witnesses are examined, it is possible that parties would be concerned about the presence of another person in the room who could influence the witness. A possible solution for this could be for the witness to use a camera with an ultra-wide lens. This would allow all participants to have a full view of the witness’s room.
The well-known and much-loved yellow Post-it Notes, used by parties during hearings to communicate with each other and their counsel, were replaced by WhatsApp chat groups.
Although there is the option to send private messages via Zoom, it was considered safer to use WhatsApp to avoid the possibility of accidentally sending a private message to everyone attending the hearing.
Summary of tips
- Participants should have a computer or laptop with a good internet connection, preferably connected to the router by cable.
- Key participants, such as the arbitrator, counsel, experts and witnesses, should have two or three screens to enable participants to see the live transcript, live evidence and the proceedings at the same time.
- The arbitrator, counsel, witnesses and experts should use a camera and a headset with a microphone.
- Arrange and courier hard copy hearing bundles to key participants. There are courier companies operating, but delivery times might differ so plan in advance, especially if the key participants are in different jurisdictions.
- Arrange one or two demonstration calls to make all participants comfortable with the technology used and to fix any potential issues.
The experience that the parties have in face-to-face hearings is very different from the experience that they get in virtual hearings. As such, the parties have to cooperate in order to replicate the experience of a face-to-face hearing as much as possible. We are pleased that our hearing went well and we managed to avoid any teething problems. Good preparation and flexibility are key ingredients for adjusting to the new era of virtual hearings. Although the above is not an exhaustive list of tips, it did help us to conclude our first virtual hearing successfully and we hope that it will also help other parties who are contemplating holding a virtual hearing.