Due to the global pandemic and recent spike in COVID-19 cases, it’s anyone’s guess when Texas jury trials will resume. Arbitration, however, is moving forward virtually thanks to the array of virtual platforms available to the American Arbitration Association (“AAA”). I recently concluded a week-long arbitration through the AAA stemming from a breach of contract dispute between a general contractor and a subcontractor. The entire arbitration was conducted virtually, with the claimants, respondent, and arbitrator all attending via Zoom from their respective offices. The following are some helpful tips for conducting an arbitration virtually:
We experienced significant audio feedback early in the arbitration, and we learned an important practice tip. A reverberating echo of audio feedback would occur whenever the witness and attorney were in the same room and they both had their laptops on. Muting the Zoom speaker on one laptop did not solve the problem. Muting the laptop’s volume on one of the laptops helped with the feedback, though did not eliminate it entirely. If your client is in the same room and is not testifying, he can simply not be on his laptop. If your client is testifying, he will need to be on his laptop so the audio feedback will be an issue. The best solution is having your client in a different room during his testimony. Which segues to the next tip.
The arbitrator made it clear in my arbitration there was to be no coaching of the witnesses. When my client was testifying, we both had to be on camera. The only way for both of us to be on camera was to be in different rooms. Coaching witnesses during their testimony constitutes a serious potential problem associated with virtual arbitration. One possible solution is to have multiple cameras set up to show the witness is not being fed answers, however, this might not be practical and can make the image of the testifying witness more difficult to see. Best practice is to insist the testifying witness remove themselves to another room separate from any attorneys/staff.
Nothing interrupts the flow of a good direct or cross examination like fumbling to bring up an exhibit. It irritates everyone, including the arbitrator. If you have a paralegal assisting you this should not be an issue, but if not be sure to have every exhibit you want to introduce opened and in the correct order on your laptop. That way when you share your screen you can quickly move from one exhibit to the next without breaking stride. Remember the show must go on; if you not able to bring up your exhibit expeditiously or if your computer freezes move along to your next topic.
The arbitrator needs to see your witness’s face when he/she is testifying. When you introduce an exhibit, the exhibit will take up the majority of the screen and your testifying witness will be a thumbnail in the corner. When you are finished with you questions on the exhibit be sure to close out of it so that your witness’s face once again takes up the majority of the screen.
Any trial attorney knows this is the fastest way to get dagger-eyes from the court reporter. In a virtual arbitration, two lawyers trying to talk over each other is an even bigger problem. The arbitrator has a harder time discerning what everyone is saying and the attorneys have a harder time hearing the arbitrator. The best way to handle is to make a Rule 11 or a Motion in Limine that counsel will voice his objections without interruption from opposing counsel, then wait for opposing counsel to complete his response. Things tend to get heated in litigation so even with such an agreement there will invariably be a few flare-ups, but it’s best if they parties agree to wait their turn to speak.
It happens in every arbitration. During breaks, before the day starts and after the day ends the parties do their best to gain the arbitrator’s favor. They offer to get the arbitrator a cup of coffee, laugh extra hard at his jokes, and essentially become the friendliest versions of themselves. These stolen moments where your client attempts to tug at the arbitrator’s heartstrings do not exist in virtual arbitration. The arbitrator will only be able to see your client when he/she is testifying. For the rest of the arbitration the arbitrator will have your client shut off his/her video. If your client has a natural charm and charisma that you want to use to your advantage, virtual arbitration may not be your best option.
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