Virtual hearings have played a crucial role in maintaining access to justice for commercial parties during the pandemic. It has been a steep learning curve for lawyers. However, the industry has adapted, got on with the job and learnt a lot. In this alert, we reflect on experience of the past six months and look at some of the practical tips that litigants and their lawyers can take to make virtual hearings a success in the future.
To hear more on this topic, please register for an upcoming webinar “Virtual trials and hearings: Are they here to stay? Perspectives from the U.S. and UK” as part of the Reed Smith inaugural virtual disputes conference “Navigating the Next Normal: Global disputes in 2020 and beyond.” On 27th October, our panel, including Ali Malek QC and Judge Rabeea Collier, will discuss their experiences of remote trials and hearings since the pandemic has forced global courts to operate virtually.
1. Selecting your video platform
Think carefully about the appropriate video platform for your hearing at an early stage. Some forums, such as national court systems, may mandate the use of specific technology and/or may have developed their own technical solution. If so, ensure participants are trained and familiar with the technology. If you have flexibility to choose your own option, then some platforms may be more suitable for extended hearings than others and provide better functionality for document sharing and the availability of break out rooms. Consider whether all parties can access the platform effectively from their home jurisdiction. Experience counts, so it may be better to select a platform with which advocates and tribunal members are generally familiar than to break new ground.
2. Manage documents effectively
Efficient access to relevant documents for all participants is critical to the smooth running of a virtual hearing. Problems with accessibility can seriously disrupt the flow of the hearing and cause discontent with judiciary or tribunal members. Engage with the court or tribunal and other parties to identify what will work for your case. As a minimum, e-bundles should be prepared precisely in accordance with the rules applicable for your tribunal. In all cases, declutter and keep to the key documents – document overload can result in confusion and slow down the hearing. Use hyperlinks and bookmarks effectively. For more complicated matters, consider whether the engagement of a third-party document management solution may be appropriate.
Virtual hearings work best if there is a high degree of mutual co-operation between counter parties and the court or tribunal. Early engagement helps identify potential problems and may lead to acceptance of your preferred solution. For example, a national court may be more flexible with regard to the platform used for the hearing where parties engage at an early stage to discuss the best way forward. Beware dictating terms to the tribunal or court. In international arbitration, all-party consent to a virtual hearing can reduce the future prospect of a procedural challenge at the time of enforcement. A ‘no surprises’ approach to witness evidence is advisable so that both parties are entirely comfortable with the arrangements in place for witnesses giving evidence virtually. There should be no room for allegations of dishonesty or misconduct in witness evidence.
4. Plan for enforcement
Think ahead to enforcement, particularly in an international context. Will any arbitral award or judgment obtained following a virtual hearing be enforceable in the jurisdiction of likely enforcement? Does that jurisdiction prohibit virtual hearings on grounds of public policy? Avoid allegations of procedural irregularity that might give future grounds for objection to enforcement under the New York Convention when enforcing an international arbitration award. Go the extra mile to establish compliance with principles of natural justice so that you can demonstrate in the future that the other party had a fair opportunity to present its case from a level playing field (e.g., in relation to time zones or the accessibility of technology). Compliance with established arbitration protocols (e.g., the Seoul Protocol, the Vienna Protocol and the CPR Model Procedural Order) can assist in validating the process. Ensure the court or tribunal records the reasons for adopting a virtual format.