INSIGHT: Fighting the Equalizing Effects of Remote Arbitration

Remote arbitration during Covid-19 has the potential to not only hurt our cases, but diminish what we do as litigators unless done well. There’s no question that presenting via video what is typically done in-person, and in a courtroom, can take a lot away from the value we bring as individual counselors.

In a sense, video arbitration can be an equalizer where both good and bad attorneys get the same results.

Yet, the reality is counsel and their clients engaged in arbitration may be working for months—12, 18, or more—in a remote environment. Knowing there are disadvantages over in-person arbitration, how should attorneys advise their clients on whether to proceed or wait until a case can be safely arbitrated in person?

Two factors point to the need for attorneys to climb the virtual learning curve fast. First, not every case, mediation or arbitration can sit out the coronavirus crisis until a return to business as usual. And, when business might return to usual is anyone’s guess.

Second, it is safe to assume that remote arbitration in some form is here to stay. This means attorneys need to learn how best to advise clients, and demonstrate expertise, in a remote setting.

Cases moving forward under the cloud of Covid-19 show how attorneys are changing and growing fast in this area. Building on these best practices, litigators can fight the equalizing effects of remote arbitration to achieve client goals in whatever the new normal becomes.

Time in Upfront: Remote arbitration typically takes more preparation time than in-person dispute resolution. From pre-testing the platform and setting new guardrails all the way through resolution, taking the extra time upfront can give attorneys the upper hand throughout the presentation.

Pre-testing the Platform: Remote arbitration is taking place on various platforms. Some venues are using Zoom, courts are using Webex, others are using Microsoft Teams. Test the platform with your colleagues before going live to see how it works and make sure you understand its ins and outs.

In advance of one of my first Webex presentations, I tested out my presentation on a live practice round with my paralegal and an associate at the firm, learning the features I’d need to deploy and getting feedback on integrating video, my voice and exhibits for optimum effect.

Presenting the Case: Nothing could be worse for a client than an attorney that cannot make the case. A big piece of what we do in a courtroom is keeping people entertained with an interesting presentation, drawing counsel and parties in, walking them through a straightforward and professionally laid-out case. These pieces are equally important when the debate unfolds in a remote setting.

Lawyers need to put in all the same effort, and typically more, to create flashy presentations that draw people’s attention, and in particular, keep the arbitrator engaged. (By now, everyone has heard the feared “toilet flush” that occurred during Supreme Court arguments.) Being “interesting” over video is a new challenge when we are all so constantly bombarded by streaming social media and constant news updates that we are poised to tune out if something does not immediately catch our attention.

Staging Exhibits: Since arbitration allows flexibility in presenting evidence, how exhibits unfold is a major factor in conveying the facts and telling the story. Instead of distributing exhibits when they naturally flow in a live presentation, attorneys in remote arbitration likely need to send exhibits to the arbitrator early for review.

To the extent an attorney is permitted to present these exhibits, each needs to be dropped into the presentation at the exact time they are being discussed, without gaps, pauses or disruptions, and keep attention keen. When a provision of a contract is being discussed, the presenter needs to be able to highlight the exact portion of the contract clearly in the flow of the presentation. This “staging” has to be done early and well to lay out the case.

Capturing Non-Verbal Cues: Whether in a courtroom or remote arbitration, litigators cannot be messing with exhibits or technology when they should be watching a witness closely for non-verbal cues. In a remote setting, this means delivering paper-based exhibits to witnesses just prior to arbitration and in a way that witnesses view each exhibit or demonstrable in order and with fresh eyes as it is being presented.

One way litigators are keeping it fresh is couriering exhibits to witnesses minutes before arbitration starts, with each exhibit in the envelop color-coded for the witness to open under cross-examination and in front of the arbitrator. This avoids giving witnesses and their counsel days to review exhibits and ensures a front row seat to a shot at an authentic witness response.

Maximum Exposure: Attorneys cannot capture non-verbal cues if they can’t see them. Witnesses need be up close in a monitor and adequately lit for counsel to see what the witness is doing with their facial expressions.

Rules Under Cross: Which gets us to the rules of cross-examination. Will witnesses be alone or have other people with them? What items can witnesses have access to? Agree ahead of time to set remote guidelines you can live with, such as whether witnesses are prevented from accessing their phones, searching emails, or coming up with their own evidence to refresh their memory under cross examination.

Communication During Cross: With co-counsel and clients sitting a social distance apart or in separate locations or rooms, sidebar communication should be enabled on a device other than Zoom or Webex. Establish a group message system on snap chat, text, or other in case you need to ask a client a question or communicate with co-counsel (as long as usage is in keeping with established rules under cross).

Speaking Protocol: Lag time is a virtual reality on video calls, which can lead to people talking over each other and all at once. Modeling the U.S. Supreme Court, lay out detailed protocols on who gets to do what and when—who will talk first, and for how long—before arbitration.

Reliable Internet Connection: A stable, reliable internet connection is a must for video and voice communication during remote arbitration. If your mobile audio or landline audio reduces lag time better than your computer audio, sync it up.

Security. If you are deliberating a sensitive case, such as intellectual property or trade secrets, you have to ask, is it worth risking a security hack? Some courts will not use Zoom because it is notorious for being hacked by uninvited guests. But all platforms are vulnerable so think twice about whether to put proceedings out there or delay.

Get It in Writing. Arbitration does not have many of the formal rules and procedures used in court, making it an ideal venue for applying new protocols that create the setting for a winning case. What briefs will be admitted? How will exhibits be distributed? Get these rules in writing beforehand.

Remote arbitration, like all new processes, will get easier and more routine over time. Making the most of remote arbitration takes some hard work upfront but, ultimately, can give you the upper hand throughout deliberations.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Nicole Westbrook is an attorney with Jones & Keller in Denver. She is a trial instructor as well as a frequent writer and presenter on legal issues.