September 3, 2020
The coronavirus pandemic has resulted in an increase in virtual arbitration participation for expert witnesses. This abrupt shift has removed expert witnesses from hearing rooms and face-to-face interaction with judges, arbitrators, and counsel. More often, participants in these processes are giving evidence and undergoing cross examination while in their home locations and dealing with the complexities and evidence arising from factually heavy commercial disputes with the added communication and technology challenges of an audio or video conference environment.
In this backdrop, we gathered a group of construction experts to discuss their recent experiences giving testimony in a virtual setting and offer advice on how expert witnesses can best prepare for this new reality.
How is documentation managed and referred to in a virtual hearing?
Guy Elkington: Construction disputes are generally document intensive. For a conventional in person hearing, there are multiple copies of the evidence bundle for the dispute resolver(s), counsel, and the witness. As a result, hearing rooms often need to be large enough to accommodate a significant volume of documents in addition to the numbers of people involved. For virtual hearings, that has all now moved online and hastened the transformation from hard copy to soft copy documents. From a document retrieval perspective, this can improve the speed of a hearing as documents appear instantly on a screen and all of the participants are not required to find the same paragraph on the right page in the right file of their respective copy of the hearing bundle.
Reza Nikain: The witness binders that are typical in a traditional hearing may not be readily available in a virtual hearing. When I was recently testifying, given the agreement between the parties, I did not have a paper copy of all my report’s footnoted documents. I didn’t even have the flexibility on my own to bring the documents up to examine the whole of the document to review before responding to questions. If I wanted a document to be brought up, the opposing counsel would bring it up on the screen. So, the preparation time to ensure that you are familiar enough with what is supporting the text or finding is very important, particularly in more extensive expert reports that may have 100s or 1000s of references.
Peter Badala: Be mindful that during cross-examination, the examining lawyer typically controls the electronic copy of the document and will focus on the excerpt that is the subject of the question posed. The expert should request a complete document be made available on the screen for the witness to review. There may be a paragraph on the next page that contradicts, clarifies, or otherwise adds something to the paragraph the lawyer wants you to focus on.
Do the dynamics of cross examination change in a virtual hearing?
Guy Elkington: A key issue is that in an in-person hearing, it is easier for an expert to give their evidence to the tribunal by facing them/making eye contact and can judge their body language and reaction to evidence. That dynamic is more difficult when giving evidence to a camera and a sea of faces on the computer screen.
Reza Nikain: In a virtual arbitration, you don’t have that in-person room feel. With the arbitrators, attorneys, disputing parties, and other interested parties, there may be dozens of people in the room. A virtual setting will potentially have the same number of attendees, if not more. I was in a recent hearing where there were over 35 people logged on, but most of their cameras were off. As an observer, you’re not getting a sense of everyone else’s facial expressions or body language. You don’t know who’s sitting in, who’s listening, who’s not listening, who’s doing other work while they’re logged on. So, there is a bit of unknown as to what type of interaction is taking place. In an in-person setting, you can see real-time who’s in the room and how they’re reacting to the evidence.
How does a virtual hearing change the interaction between experts and counsel?
Guy Elkington: It’s much easier to “attend” or listen to the hearing from beginning to end when it is on a screen on your desk. It also allows you to attend to other issues or answer queries from counsel or your client while having access to your documents and working papers. There is often a cost issue for a paying client if their expert is sitting in a two- or three-week hearing so this can mean greater efficiencies than being physically present in the hearing when not giving evidence.
Reza Nikain: Communication between experts and counsel, if done properly, can be a great advantage in a virtual hearing. In a recent matter, we set up a group chat where lawyers and experts could communicate in real-time. I’m sure the opposing side had something similar, in place of sitting next to each other. Coordination of witnesses from various time-zones is another factor that if managed properly, can benefit all parties, which is particularly relevant when some witnesses may be 8, 10, or 12 hours ahead of the hearing time slot.
Peter Badala: While the various video conferencing software being used to conduct virtual hearings have the capability to exchange messages between participants, you should establish an alternative means of “real-time” communication between the expert team and lawyers. For a recent hearing I was involved with, we used a phone app. It proved to be an effective alternative means of providing real-time feedback to the lawyers regarding potential follow-up cross examination questions or other observations regarding answers provided by a witness or opposing expert.
Are virtual arbitrations here to stay?
Guy Elkington: I wonder whether we might end up with hybrid hearings where groups of people are in different locations, reducing cross border travel. It’s not unusual for a construction arbitration in, say, the Middle East for the tribunal and counsel to be in Europe and witnesses and parties being in the region. In those situations, then there could be clusters of people. It may also assist the splitting of hearings into several sessions (particularly splitting liability from quantum) as the removal of the need to travel to a location may free up diaries for busy practitioners. There will be a much greater acceptance of the use of the technology. Court systems around the world are embracing the technology and realizing the cost and time savings that it can bring when appropriate.
Reza Nikain: There is still great value to an in-person hearing. Even on a 15-minute break, there is a lot of interaction taking place in a breakout room in the form of witnesses and lawyers huddling and assess how the case is going and making effective changes. I think that aspect of it is not as effective via conference call. It’s much easier to pull the lawyers aside in the break time and say, “Look, you have to ask him this,” or other suggestions as the case evolves. You do not have that flexibility when everyone is remote.
Peter Badala: I think there are some clear advantages to the virtual hearing, financial benefits being one of them. The time of travel and rental of facilities can be quite costly. Gathering of all the experts and all the witnesses in one place can be expensive. And obviously there’s a reduction in health risk as well.
Guy Elkington: The whole process is dependent on the technology. If there is an internet outage, then the proceedings can be disrupted if back up facilities (e.g. 4G or 5G signals) are not available in the affected location. This can lead to issues particularly when a new witness is taking the stand and there are initial issues while bandwidth settles down or if a witness is in a geographically remote location where options are limited.
Tips and Considerations
Based on their experiences as virtual expert witnesses, our experts share tips on how to prepare for a virtual arbitration.
- Be familiar with the technology being used in the hearing.
- Make sure you have a good working computer with a strong internet connection.
- Have multiple screens if you are able. It’s good to have one screen on which you can view the transcript of the hearing. And you have the other screen to look directly into the hearing room and have the presence and relationship with the arbitrator.
- Communicate if you need to see more of the document (on the screen) because what the opposing counsel presents to you can be limited.
- Slow down and do not over speak. It’s much easier to speak over someone in a virtual hearing, particularly if there is a lag in internet speed, because you don’t always know when the other person is done speaking. So, when you’re giving your verbal evidence, slow down and wait until you’re sure the question has been asked to be sure not to over speak when someone else is speaking.
- I would empathize the nuance of preparation. A witness should practice using the same exact setting as what will be used in the hearing. So, if they’re going to be using a specific platform in the hearing, they should practice with their lawyer in the same exact setting. Do they wear a headset? Should they put their camera in front of them? Should they be looking down at the laptop, or looking up at the documents? What the arbitrator will see is the face. We had people too close to the camera because they wanted to read what was on the screen. So, you need to iron out the details during the prep time.