Remote hearings: the ‘new normal’
by John Aslett, Legal Consultant - Canada
Since the onset of the Covid-19 pandemic, Courts and other dispute resolution bodies around the globe have had to adapt quickly to the situation, and they have generally done this by embracing ‘remote’ or ‘virtual’ hearings.
Remote hearings involve one or more of the parties attending a virtual court room or a virtual hearing via the telephone, video link or an online platform. In the current circumstances, generally at least the Claimant’s team, the Respondent’s team and the Judge, adjudicator or panel are generally situated separately. Clients may attend their legal representatives’ offices, and panels may request a venue to be together for ease of conduct. However, attendees are very often not co-located with any other attendee. Although different jurisdictions have handled the situation in a variety of ways, the common theme is that remote hearings will continue to be used for the foreseeable future, and may endure after the need created by Covid-19 has disappeared. Therefore, this article explores the practicalities of remote hearings and how they can be effectively conducted
There are a number of practical considerations that need to be taken into account at an early stage when considering a remote hearing. These include having appropriate IT hardware and software, a suitable internet connection, and the correct documentation for the hearing at hand, if possible. However, there are also client-motivated and tactical considerations that parties may ask themselves such as:
- Is a remote hearing suitable for the current case?
This is something that needs to be assessed on a case by case basis with the members of the legal team, but remote hearings tend to lend themselves to cases that are not so complex. Conversely, cases that involve large amounts of documentation and that are complex in nature may not be well suited to remote hearings. Of course, this is something that may change with further investment and innovation related to remote hearings.
Another point to consider here is whether or not you wish to use witness evidence. Using witness evidence, especially in large construction disputes, is essential when piecing together the issues and if you take away the physical hearing you lose some of the gravitas of the situation and the ability for Counsel to cross-examine a witness in person. Counsel often like to assess the room, the Judge or Arbitrator and the opposition when attending a hearing and cross-examining witnesses. It is important to assess if this skill will be eroded by choosing a remote hearing.
- Will a remote hearing save the client money?
There is certainly the potential for remote hearings to save clients money. International disputes will often involve parties from different countries and at some point they need to convene in one location, whether that be for meetings involving potential settlement or for a dispute resolution hearing. These can be expensive for clients, but again it should be assessed based on the situation as it may be more conducive to meet in person.
- If we do choose a remote hearing, how can we make sure we present our case in the best way?
One area that may see growth with the advent of remote hearings is the ability to produce and use effective visual aids that will assist in the litigation or ADR process. Systech has an in-house team that produce ‘visualisations’ “to create high impact video, animations and augmented reality which support the communication of key, and typically complex, arguments”. This is beneficial during physical hearings but will assist in further explaining complex construction issues if they are conducted via remote hearings.
Arranging and conducting the Hearing
There are many ways to arrange and conduct a remote hearing. It is unlikely, in the short term, that the fundamental sequence of proceedings will alter in response to the inability to conduct live hearings. The question is simply how best to conduct those proceedings remotely.
Remote hearings moving forward
Necessity is the mother of invention, and Covid-19 has pushed the legal industry to find new solutions to the problem of conducting legal proceedings without a traditional live hearing. There is unlikely to ever be a one-size-fits-all solution to this problem, and as national courts and arbitral association develop their own rules and procedures, these are likely to vary. However, in principle, there are clear time and cost advantages to utilising remote hearings in international disputes. Although the precise methodology may require careful consideration in the client’s particular circumstances, clients should be generally advised of the potential advantages of remote hearings over in-person hearings.
For perspective on how to conduct successful remote hearings, we asked two members of the Systech Law team about their recent experiences.
Neil Hunter (Partner, UK)
Neil Hunter is a partner with Systech Law and has been responsible for the strategic legal direction of recent remote hearings for a major international client.
What was the perception of remote hearings before 2020?
Prior to Covid-19, remote hearings were relatively rare and generally by phone. The Civil Procedure Rules in the UK allowed for telephone hearings in certain circumstances, but they were basically limited to directions hearings or interim applications with a time estimate of no more than one hour.
There was a general reluctance to adopt telephone hearings, but there were obvious savings in travel time and costs. Often, legal representatives would end up speaking over each other, and they could become chaotic and unmanageable. In my experience, they were of limited success.
How did COVID-19 change this?
Circumstances have, in effect, forced parties and tribunals to be more flexible and cooperative in relation to remote hearings, because anything else was impossible, at least temporarily. Obviously, technology can accommodate this now quite easily, as almost everyone possesses a computer or laptop, and remote working, where possible, became necessary across every industry so systems were being implemented to connect people remotely in any event. While the Courts in the UK were slower to adapt, most alternative dispute resolution processes were able to quickly implement new ways of working because of this wider move to remote working.
What is your experience of remote hearings during the Covid-19 crisis?
In the cases I have worked with this year, we have used some innovative new systems, such as using a third-party provider to circulate tablet computers to the panel and parties, pre-loaded with the case bundles. These could be controlled by the presenting party to bring up documents as needed via a dedicated software and were simply returned to the provider after the hearing. Transcription was also done automatically, in real time, by software recording the hearing. ‘Break-out’ rooms were available to the relevant parties, meaning that the opportunity to have private conversations was not lost.
In these hearings, there were between 30 and 40 participants on audio only, with around 10 active parties on video (advocates, panel, witnesses), and the participants were in Europe, Africa, the Middle East and Japan. The hearings ran smoothly, and substantial cost savings were achieved against travel and associated costs. In comparison to the cost of travel, investment in solutions to remote hearings is very reasonable.
The only real issue was a witness lost connection for a few minutes, but this was due to their personal internet connection.
What is your view for the future?
Overall, the post Covid-19 experience of remote hearings has been positive, with administrative and technological successes, and considerable cost savings being achieved. In light of the current circumstances, and the ready availability of remote hearing facilities which have been demonstrated to be successful, it is hard to imagine a return to the traditional hearing format of in-person attendances, with hard copy hearing bundles, and the significant cost of international travel. Provided the parties and tribunals continue to embrace the remote hearing format, I think it is the future of international, and even domestic, dispute resolution procedures.
David MacLellan (Paralegal, South Africa)
David MacLellan is a paralegal with Systech Law and has been responsible for organising and implementing several remote hearings for his team in South Africa.
How can we measure the success of remote hearings?
One of the most important ways to measure the success of a virtual hearing is its ability to match the perceptions of what makes a successful live hearing, because until lawyers and clients get used to remote hearings, there will always be a natural inclination to think ‘maybe that would have gone better in person’. As we develop methods of working and get used to the style of these remote proceedings, I think we will start to judge remote hearings without comparison to the courtroom, and new perceptions of success will arise.
What are some of the greatest challenges?
There are unavoidable negatives in the inevitable delays, occasional technology malfunctions, and general disruptions in flow and momentum. It is therefore unsurprising that the most cautious to this new way of working are, in my experience, advocates. Having said that, it seems to me that if an advocate is prepared, the virtual hearing has little impact on their advocacy. A good advocate can grasp the attention of a tired judge, on a hot day, from the other side of a courtroom, and this ability translates to on-screen advocacy.
How have remote hearings improved the hearing process?
Two major advantages are the wider attendances and the move to digital document bundles. Although the panel members we have worked with this year all insisted on hard-copy bundles, the parties were operating entirely digitally. Despite this, during the hearing, the panel were happy to be directed by the parties to on-screen documents. Without wishing to generalise, this is often generational, and perhaps to be expected when using retired High Court judges as adjudicators and arbitrators. As time progresses, I expect that the move to digital will slowly encompass panels as well. The time and cost savings associated with digital case bundles can be significant in large matters, so this is a major area of improvement.
In relation to attendances, in significant international matters there can be numerous interested parties. To give an example, certain global client management and legal advisors may wish to attend in addition to local management and local legal advisors. It would not generally be possible to accommodate 40 people in an arbitration, nor would the travel costs justify more than few, if any, non-local personnel attending in person. Much wider attendances are now possible, to the extent it is desired, and we would still not expect 40 people in attendance for an entire arbitration, but we have found that clients like this greater degree of connection to proceedings. Although it may seem inefficient at face value, attending the hearing can prevent extensive discussions and reporting between levels of management and advisors afterwards, so there is a direct benefit.
To learn more about our experience with remote hearings please contact Tom Allen, Managing Partner