The COVID-19 outbreak, and the imposed lockdown measures and restrictions, has forced many industries to rapidly adapt and find new, innovative ways to continue working and providing services. Expediting the use of information technology was the first action for many organisations.

Courts and arbitration or dispute resolution centres were amongst those that had to quickly adapt, and remote hearings have become a reality.

Some of the key questions this raises are what are the benefits and disadvantages of the remote hearings? What will happen after the COVID-19 restrictions begin to ease and in-person hearings are able to resume? Will remote hearings become the new normal? How is a remote hearing experience for a testifying expert witness? The following comprises a summary of the views of peers within Blackrock Expert Services who have now experienced remote cross examination first-hand.

Transition to the remote hearings

Courts and arbitration practitioners were already taking preparatory steps towards achieving remote hearings before the COVID-19 outbreak. In November 2018, during the 7th Asia Pacific Alternative Dispute Resolution (“ADR”) Conference[1], a number of Arbitration practitioners presented the Seoul Protocol on Video Conferencing in International Arbitration.[2] The First International Forum on Online Courts, was held in London in December 2018, when 300 participants from 26 countries focussed on a discussion in relation to the use of technology to transform the work of courts.[3]

When the UK lockdown measures were introduced, on 23 March 2020, many arbitration practitioners were expecting the hearings to be adjourned. This meant that proposed dates for hearings could have been delayed by up to several years, based on the uncertainty around the COVID-19 outbreak, and the busy schedules of the parties involved in the arbitral proceedings, causing a costly delay to the process. Not without obvious challenges, the need to implement remote hearings was imperative.

Courts and tribunals reported that the number of cases heard each day in England and Wales with the use of audio and video technology increased from under 1,000 in the last week of March 2020 to approximately 3,000 by mid-April.[4] More specifically, it has been reported that as of 27 March 2020, four days after the UK went into lockdown, 70% of court and tribunal hearings were undertaken using video or audio technology, and that number increased to 90% by 14 April 2020.[5] Arbitration and dispute resolution centres also adapted to the need to keep the hearing schedules going and continued to offer dispute resolution proceedings using visual technology, in what has been a very quick and efficient response to the new situation.

The benefits of remote hearings

Remote hearings as a practice might be here to stay, and this is because there are some significant benefits associated with the process.

The financial benefits are expected to be significant, when travel and accommodation expenses of participants for attending a physical hearing, can be avoided.

There are obvious time benefits to a remote hearing compared to attendance in person at a physical hearing. By taking travelling out of the equation, the coordination of the tribunal members’ diaries may be easier.

Remote hearings would give participants with health issues the opportunity to remotely attend a hearing. In my experience, a simple pregnancy complication could prevent you from taking a flight.

Finally, avoiding travelling, and importantly the use of electronic bundles, is anticipated to have a positive environmental impact.

The disadvantages of remote hearings

Some aspect of remote hearings can be slower; bringing up documents or pointing to the right page in an expert report might take longer than it would in a regular arbitration room, particularly if the participants do not have access to high speed internet connections. In the event that technology for even one of the participants fails (even for a few minutes) it can delay the whole process and cause frequent interruptions to the flow of cross examination. Based on the Seoul Protocol, “The Tribunal may terminate the video conference at any time if the Tribunal deems the video conference so unsatisfactory that it is unfair to either Party to continue.”[6]

Another issue will arise from individuals being located in different time zones. The tribunal members will potentially have to be based in time zones with time differences of less than six hours, otherwise the daily proceedings will have to be limited to between five and six hours. For testifying experts located in different time zones, long cross examinations might be not be practicable, and more days should be allocated for each expert witness.

What testifying remotely means for the expert?

The role of an expert witness in a case can be crucial. The cross examination can take less than an hour or up to several days. Hot-tubbing (the practice during which experts from the same discipline provide evidence at the same time) can also be catered for. Cross examining an expert will test their evidence, credibility of their analysis and their independence, and it is common for the expert’s report to be scrutinised during the hearing. Accordingly, the results of the cross examination can significantly influence the outcome of a hearing, and it is in all parties’ benefit to safeguard this process when the hearings are undertaken remotely.

During the remote hearing, the testifying expert witness needs to be evidently alone in a room, and they cannot be in contact with any individuals in-person or online. The testifying expert cannot have access to any notes, and as the Seoul Protocol describes they need to be sitting at an empty desk: “The video conferencing system at the Venue shall allow a reasonable part of the interior of the room in which the Witness is located to be shown on screen, while retaining sufficient proximity to clearly depict the Witness. The Witness shall give his/her evidence sitting at an empty desk or standing at a lectern, and the Witness’s face shall be clearly visible.”[7]

From a testifying expert’s point of view, giving evidence remotely offers a less intimidating environment and a more comfortable personal-distance from the barrister during cross examination. That might also represent an advantage to the outcome of the hearing, with the testifying expert being less susceptible to some of the barristers’ cross-examination techniques and better able to assist the tribunal with their evidence.

A testifying expert should address the tribunal not the inquiring barrister. Eye contact and body language play a significant role during cross examination. An experienced expert recognises an engaged tribunal, and I do not think remote hearings can replace in any way the powerful interaction of a physical hearing, and experts may find it more challenging to engage the members of the tribunal though the screen. Indeed, the diminished sense of personal contact in a remote situation can make it more difficult for all concerned to read body language and to evaluate the quality of the evidence being given.

The cross-examining barrister, and even the tribunal, might have a more difficult job to assess the credibility and strength of the evidence of an expert without the opportunity to observe the expert’s behaviour in the box. This is probably something that everyone will train themselves to do more efficiently if the remote hearings become the new reality.

During the past few weeks, a number of experts from Blackrock Expert Services were called to give evidence in remote hearings, using video technology. The experts and supporting teams in our organisation have rapidly adapted to the new way of working and we can face this new challenge with certain confidence.

Conclusion

It is unclear when physical hearings with all participants in the same room will be permitted again. Internet research reveals an overarching theme that the hearings have been very successfully conducted online during the past 11-12 weeks.
New operational systems, accelerated technology and the development of new ways to transform the courts and dispute resolution centres will further improve how remote hearings will be conducted. We are only at the start, and the experience of remote proceedings within the industry is growing, which will surely lead to improvements.

It is reasonable to assume that, in the future we will see a combination of practices, and a variety of procedural options being offered to the parties being involved in disputes. Whilst geographical location may still play a part in arbitration or court logistics, where for example the tribunal may want to be in one room, this will not necessarily follow. The key issues that will ensure the success of a virtual hearing are first and foremost the quality and experience of the participants, but also access to and familiarity with the technology that enables the participants to be connected and for them to be able to review the documents and written evidence that may be referred to during the hearing.

[1] http://saf2018.safkcab.com/
[2] The protocol can be found here
[3] https://remotecourts.org/
[4] HM Courts & Tribunals Service – Courts and tribunals data on audio and video technology use during coronavirus outbreak
[5] HM Courts & Tribunals Service – Courts and tribunals data on audio and video technology use during coronavirus outbreak
[6] Seoul Protocol on Video Conferencing in International Arbitration, Item 1.7
[7] Seoul Protocol on Video Conferencing in International Arbitration, Items 1.2 and 1.3