Five Tips for Virtual FERC Hearings

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Davis Wright Tremaine LLP

The "new normal" we currently find ourselves in has brought a number of changes to business as usual in the world of the Federal Energy Regulatory Commission (FERC). One notable, drastic change is that FERC hearings are now conducted virtually.

The virtual environment has some benefits over a physical hearing—you do not need to travel to Washington, D.C., and you can bring your coffee and snacks with you into the hearing room. However, virtual hearings also bring new challenges as compared to those typically experienced during in-person hearings.

We just participated in FERC's second ever virtual hearing, a multiweek affair in the Panhandle Eastern Pipe Line Company, LP, natural gas rate case and have advice for those who are curious about the new FERC hearing experience. There are many aspects of virtual hearings that are different from regular physical hearings, but here we will limit our advice to five tips that are mainly geared towards attorneys and witnesses who are actively participating in the hearing.

Tip #1: Expect Technical Issues; Learn to Laugh About Them

FERC's virtual hearings take place over the WebEx platform, and participants are expected to share and review exhibits using Microsoft SharePoint. These are new programs for many, and not all of us are technically savvy, to put it kindly.

On top of the obvious possibility for software issues, the hearing will be interrupted when an important participant—the Presiding Judge, the witness, the questioning attorney, the defending attorney, or the court reporter—has an internet interruption or slowdown. For these reasons, we suggest a strong internet connection and recommend an Ethernet connection rather than relying on Wi-Fi, if possible.

Moreover, brief interruptions will occur when someone who needs to talk is accidentally on mute, or someone who should not be talking is not on mute. These things can (and do) happen with regularity—especially during a hearing with over 50 attendees.

All of these problems can lead to a scattered transcript with numerous "Technical Interruption" notations. And they can certainly interrupt the flow of questioning we normally expect at hearing. It might take 5 or 10 minutes (or more!) of technical delays for a questioning attorney to get through one question and answer in cross-examination.

The natural and understandable reaction is to become frustrated. Instead, take a deep breath and recognize that the technical issues are going to happen to everyone. Do not let exasperation get the better of you; laugh about the fact that someone's camera is frozen in an unflattering frame or how that one person never remembers how to unmute. Remember, we are all in this predicament together.

Attorneys can brush off a technical delay by summarizing where they were in the line of questioning and asking the court reporter to repeat the last question. Similarly, witnesses can ask for a recap and for the question to be repeated. Do not let the technical issues agitate you or overshadow the substance of the hearing.

Tip #2: Look Into the Camera

When you are talking, do your best to look into the camera. You will look more engaged and interested. Most speakers lose some of their natural gravitas in a virtual environment. Looking into the camera—like looking someone straight in the eye—helps your presentation and presence at hearing.

One way to accomplish this is to set the WebEx window directly under the camera you are using. Additionally, we recommend using the "Brady Bunch" view, where you can see multiple participants at once.

While this does make each participant appear smaller, it allows the presenter to view the Presiding Judge, the witness, and the attorneys at the same time, making it easier to see reactions, facial expressions, and whether someone else is about to speak. In other words, this better simulates being physically in the hearing room. Another benefit of this multi-person view is that WebEx pulls the views of the active participants to the top, directly under the computer camera, which is closer to simulating eye contact.

Finally, consider investing in a better camera, microphone and speaker than those built into your laptop and consider your lighting source. When you are participating, you want the Judge and others to see you.

Tip #3: Respect the Three Second Rule

FERC's Remote Hearing Guidance asks participants to leave a three-second pause after someone speaks, particularly to allow time for objections before the witness answers a question. We cannot emphasize enough the importance of this rule. It is a common cross-examination tactic for the examining attorney to get the witness into a consistent cadence by asking a series of "yes or no" questions. Even during in-person hearings, this is a dangerous trap that witnesses fall into.

In the virtual environment, the danger is multiplied as it may take more time than normal for an attorney to unmute, deal with internet lag, and object before a question is answered. There were a number of times at our virtual hearing when the witness answered a question without pausing and an objection was lodged too late. Attorneys and witnesses should practice in advance observing the three-second rule.

Even beyond the cross-examination context, taking a respectful pause helps eliminate crosstalk so the court reporter will have an easier time and the record will be clearer for everyone's benefit.

Tip #4: Use Paper Backups

Remember Tip #1? Technical issues crop up with regularity. Even without technical issues, the SharePoint site that FERC uses to share documents for cross-examination and assembly of the record can be cumbersome. As more files are added, pages take longer to load. In addition, scrolling through a document on a screen makes it more difficult to cross-reference different pages or documents while keeping your place.

As a result, exclusive reliance on the SharePoint site can confuse and slow down witnesses and attorneys. It is our strong recommendation that witnesses and attorneys have paper copies of exhibits, orders, and other relevant documents at their fingertips. During practice sessions, we found this particularly helpful to our witness. She demonstrated much greater confidence having a binder as a backup.

Tip #5: Remember, It's Still a Hearing

Just because you can watch the hearing from your couch in your loungewear, sipping a Diet Coke, does not mean you should be doing that. It is extraordinarily easy to get distracted in a virtual environment—the entirety of the internet is only a click away on your computer!

But if you are attending a FERC hearing, odds are that you have a reason to be there and should be paying close attention. If there is even a remote chance you might have to turn on your camera and speak, you should be ready to do so.

We recommend sitting in a designated work space (or even going into the office, health and safety permitting), wearing an outfit you would wear to an in-person hearing, and generally treating it like a formal setting (e.g., no cartoon backgrounds!). Everyone has their own tactics on how to maintain focus—use what works for you.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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