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Putting Your Best Foot Forward in a Remote Arbitration

At the beginning of 2020, arguing hearings and trying cases in a completely remote environment seemed like science fiction. Now, just a year later, courts and litigants have adapted to our new virtual litigation environment. While virtual jury trials are still few and far between, one trend has become quite active over the last few months: remote arbitration hearings.

In a lot of ways, this development makes sense. Arbitration proceedings are more amenable to transitioning to a remote setting because there are typically fewer people involved – no court staff, no jury, no public participation. The parties also have increased level of control over the process and can agree to arrangements that make remote proceedings run even more smoothly.

While remote arbitration proceedings may have become more common, that does not mean they are without their challenges. Technical issues are inevitable, as are delays due to interruptions occurring in the various locations from which all of the participants are broadcasting, such as dogs barking, unwitting delivery drivers, and even the occasional curious toddler. But there are ways to set you and your team up for success at the outset and put your best foot forward in remote arbitrations. Below we have summarized a few of the challenges inherent in virtual hearings and provide some advice and best practices for your next remote arbitration hearing.

Challenges inherent in virtual proceedings

  • Competing with distractions (phone, computer, nosy pets) and maintaining the audience’s attention.
  • “Are you on mute?” – The possibility of the dreaded mute slip-up and inserting unintended commentary into the proceeding.
  • Technology issues. Wavering internet connectivity and issues with cameras or microphones can slow things down.
  • Communicating with your team. If everyone on the team is in different locations, it can be tricky to communicate and provide important feedback in the heat of the hearing.

Best practices

  • Set yourself up for success (literally). Position your desk so you do not have to look down at your notes and can look directly to the camera as much as possible. Consider a set-up that allows you to stand during any argument.
  • Use technology to your advantage. Use the share-screen function to show documents and tell a compelling story that will keep your audience engaged. Consider the use of interactive demonstrative exhibits that make the participant feel connected to your narrative.
  • Ask another team member to assist with pulling up documents and screen share, so the attorney arguing or examining the witness can remain focused on the task at hand.
  • Work out logistics of witness examination with opposing counsel and the arbitrator(s) in advance. Will the witness be alone in the room during examination? How will the witness access documents? Will there be someone nearby to assist with any technical issues? All of these questions need to be considered ahead of time.
  • Preparation is key. Maintaining interest and focus in remote proceedings can be a challenge, so promote engagement by looking directly at the camera and avoiding pauses during the examination or argument.
  • Assemble the team. If possible, gather the trial team in a central location (where appropriate safety measures can be implemented).

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.