Due to uncertainties created by the pandemic, virtual hearings will continue to remain the default option in particular in domestic, international and cross border proceedings, in which in-person appearances are made difficult by travel constraints.

There are many practical considerations that practitioners and clients face with regard to virtual hearings.  This post summarizes some important issues that need to be considered in advance of a remote hearing:

• Technical aspects: There are various technical aspects that need to be planned in advance, including the platform for the hearing; presentation of electronic evidence; translations; recording and transcribing.  Most of these technical aspects are better left to the professionals, rather than the attorneys, who should be focusing on the legal aspects of the hearing.  For example, if the budget allows, there should be a designated person assigned whose responsibility is to ensure that the technical aspects of the hearing are running smoothly.  Such individual should be responsible, among other things, for presentation of electronic evidence, muting and unmuting of participants, setting up the break out rooms, and ensuring participants’ access to the hearing.

Attorneys should test the platform in advance to ensure that they are comfortable with the platform, they have working camera, microphone and internet connection, so on the day of the hearing they are able to focus solely on the legal aspects of the hearing.    

• Confidentiality and privacy concerns: Confidentiality and privacy is a major concern and, as remote hearings become the norm, we are likely to see more developments addressing such concerns. It is prudent to consult your technical support team on ways to ensure confidentiality of the hearing, which may include password protected access to hearing links and electronic exhibits; monitoring of participants; and express prohibition from the Tribunal to record or videotape the hearing.  If the recordings are permitted, then there should be an agreed upon protocol in place, which discusses the conditions for release of such recordings. 

• Communications with clients, witnesses and your team: In the pre-Covid era, communications with clients, witnesses and your team did not need to be planned in advance except for ensuring that there were enough yellow post-it notes to be passed to an attorney during the hearing.  However, with everyone located in different places, it is important to ensure that there is an accessible channel of communication at all time during the hearing, whether via an email chain, WhatsApp, Microsoft Teams or similar application, virtual breakout room or instant messenger function. It might be useful to designate an associate to monitor communications and bring them to the chairs’ attention.

• Hearing Procedure: It may take some time to adjust to virtual hearing. In addition to the technical aspects, lengthy virtual hearings in front of the computer can be tiring and strenuous for everyone involved, including witnesses, translators, reporters and attorneys. It is important to take breaks and, in certain cases, to limit the hearing to half a day.

• Presentation of Witnesses and Evidence: Witness testimony and evidence presentation might also need to be re-evaluated in order to adjust to a new presentation format and maintain effectiveness. Careful planning and practice is crucial for a successful virtual presentation.  An attorney should test technical functions such as screen sharing and discuss with her tech personnel or associate the order of exhibits in advance of the hearing.  It is advisable to consider a possibility of technical issues and have a plan B if such issues, in fact, take place.  For example, if a witness loses video connection, be prepared, if the protocol allows, for witness’ testimony over the phone.  In such case, it might be useful prior to the hearing to provide a witness with an actual exhibit binder (as well as other parties and the Tribunal).   In addition, measures should be put in place to ensure witnesses’ integrity, which may include the use of special hearing centers or otherwise neutral venues, use of a second camera or a monitor to confirm that the witness is not being coached.

Conclusion

There is no certainty as to if and when we will return to in-person hearings.  However, virtual hearings are here to stay as a viable solution in the short run, and an alternative to in person hearing in the long run.   As a result, clients and practitioners need to familiarize themselves with many aspects of such hearings to ensure that their presentation runs smoothly and most effectively.

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