Advocacy in Virtual Hearings

Virtual hearings took the arbitration world by storm in 2020 and continued to thrive in 2021. At first, from around March 2020 when travel restrictions were imposed all over the world, the arbitration community faced the question of how to proceed with upcoming hearings: would it be better to reschedule the in-person hearing, or go forward with a virtual one? As the pandemic dragged on, the question answered itself. Virtual hearings, and with that virtual advocacy, became the new normal. Admittedly, participating in hearings remotely featured before – however, rarely, if at all, had counsel teams on both sides and the tribunal sat in entirely different places and conducted the hearing through virtual platforms. This prompted the international arbitration community to develop a new style of advocacy.

In light of these recent developments, this chapter will explore the fundamentals of advocacy in virtual hearings and provide suggestions on how to effectively communicate and engage with the tribunal in a virtual setting.

Differences between virtual and in-person hearings

Before analysing the distinct characteristics of virtual advocacy, the key differences between an in-person hearing and a virtual hearing are worthy of mention.

First, and most obviously, the point of departure is whether the participants of a hearing are physically present at the hearing. In an in-person hearing, the tribunal, party representatives, witnesses, experts and counsel normally all meet and gather in a single room for the hearing. In contrast, in a virtual hearing, while still brought together via video and audio technology, the tribunal, party representatives and counsel are usually attending from several different locations. On certain occasions, the legal team for a party may even be split and dial in from various places across the globe. This will likely have an impact on hearing dynamics and the style of effective advocacy, which is amplified because the angle at which the tribunal sees (and perceives) counsel differs between an in-person and a virtual hearing.

Second, an important difference between an in-person hearing and a virtual hearing is the tribunal’s average attention span. In an in-person hearing, the tribunal will normally pay a higher level of attention to counsel’s or parties’ oral statements, given that the tribunal has several helpful visual and aural distractions, making listening to the speaker more stimulating. In a virtual hearing, however, a tribunal is more likely to fall into online fatigue after a short period. Again, this will have a significant impact on the style of effective advocacy.

With these differences in mind, this chapter will address some general points on advocacy for virtual hearings (focusing on how to catch a tribunal’s attention in a virtual hearing), followed by more specific tips and remarks on (1) oral openings and closings, and (2) cross-examination of witnesses and experts. While it is important to keep these tips in mind, it is equally important to remember that the fundamentals of good advocacy remain similar to those of in-person hearings. With virtual hearings, lawyers should adapt to a new format to ensure that the differences between virtual hearings and in-person hearings do not reduce the impact of their advocacy, and also to present their case even more convincingly by using tools particular to virtual hearings.

Catching the tribunal’s attention

Be mindful of visual connection

In an arbitral hearing, catching the tribunal’s attention is one of the most important elements for persuasion. But when a hearing is conducted virtually, counsel will just appear as one small square among a dozen others, unless the video layout is configured to expand the speaker’s screen. At the beginning of a presentation, the tribunal will probably pay a great deal of attention to compensate for the lack of direct visual contact. However, as the hearing progresses, the tribunal may quickly lose focus. To mitigate this, counsel should adopt a style of advocacy that allows the tribunal to take a balanced view between the speaker and the rest of the participants on the screen. The following tips are suggested.

First, the camera used by the speaker should focus on the speaker only. Having multiple people appearing in one small window while the lead advocate is presenting is not recommended. Counsel should bear in mind that on a screen they will inevitably appear much smaller than they would if sitting directly in front of the tribunal.

Second, making eye contact with the tribunal is crucial. For that, the speaker should look into the camera when talking. This has the effect of pulling the tribunal’s attention to the speaker rather than to somewhere else. Keeping eye contact even through a camera allows counsel to control the tribunal’s attention and interact with it more closely. In that regard, a virtual hearing even has some upsides compared to an in-person hearing because one can make use of a teleprompter – which enables the speaker to take note of the script but maintain eye contact with the tribunal. That would not be possible in an in-person setting using a hard-copy script.

Third, the speaker should avoid making too many movements as this will only distract the tribunal from the advocacy. Subtle facial expressions and body language can have a meaningful psychological impact on the observer, even when relayed through a screen.

Fourth, the importance of a speaker’s background is not to be underestimated. Avoid using an artificial background as that may be distracting; an actual background better enables the tribunal to focus on the speaker. In fact, some tribunals specifically prohibit the use of artificial backgrounds to ensure the integrity of the hearing. Real backgrounds can also present issues, however. In lockdown, tribunal members suddenly had a front-row view of the speakers’ personal lives and homes. If an actual background is being used, especially out of an office setting, it should be a neatly kept one so as not to distract.

Be mindful of audio connection

The audio or vocal connection is as important as the visual connection. It is pointless for counsel to be seen on screen if they are not properly heard by the tribunal.

With regard to oral advocacy, the usual principles of delivery apply, only with a greater emphasis on these points in virtual hearings: counsel should articulate themselves with clarity and pace themself appropriately. One should remember that, depending on the hearing technology and internet connections, a person’s voice might slightly lag behind the image (or the other way round). This should be considered when attempting effects of style. For example, a pause intended to be impactful in an in-person hearing might only be understood as the technology failing in a virtual hearing, and the speaker would lose momentum.

Counsel should always avoid talking over others (opposite counsel, witnesses, experts and particularly the tribunal), even more so in a virtual hearing. Talking over someone is likely to confuse and may irritate the tribunal. Further disruption will be caused if this requires transcription and interpretation services to be redone. Also, unlike in an in-person hearing, second chair whispering to lead counsel during the hearing may be captured by the microphone, which could come across as disruptive noise. Therefore, counsel should make full use of the mute function.

Setting up in front of a screen to maximise effective advocacy

To maximise the quality of visual and vocal connections, a good technical set-up is essential. Also, seamless control of the documents is necessary so as not to disrupt the advocacy. Among various technical issues, the following should be checked and set up before a virtual hearing.

  • Virtual platform connections: A legal team should have multiple connections to the virtual platform, one for each speaker if possible. A witness should have a separate connection too. This ensures that there are no disruptions and downtime when changing speakers within a legal team and also prevents an entire legal team falling out of the hearing if the connection is lost.
  • Screens: Counsel (i.e., the speaker) should have a minimum of two screens in front of them. In fact, three screens are recommended: one that shows a live broadcast of the hearing, one that displays the exhibits and demonstratives, and one for the live transcript. This allows counsel to self-monitor while keeping an eye on the tribunal and the transcript effortlessly.
  • Cameras: Counsel should decide on how many cameras they would like to use. Two or three cameras are recommended to properly show the different speakers and prevent any mishaps. The type of camera to be used is a matter of personal preference, but it is advisable to avoid using sound-activated cameras. These cameras usually make it hard for the tribunal to focus on the speaker, as the video may switch to the noise source at the slightest sound.
  • Microphones: Counsel should use any microphone they feel comfortable with so long as the audio is clear. In general, a podium microphone or a headset with a working microphone is recommended since built-in microphones tend to pick up noise interference and provide lower sound quality.
  • Backgrounds: As explained above, it is recommended to avoid filters and artificial backgrounds.
  • Lighting: Lighting will affect how a speaker appears on screen. Counsel should consider in advance which lighting settings work best, whether it is daytime or night-time when the oral presentation is being delivered and the changing light throughout the presentation.

Oral openings and closings

Know your tribunal

Good oral advocacy in virtual hearings is not only grounded on the counsel’s skills, but also on how prepared the tribunal is to receive the information and arguments conveyed. This, to a certain extent, depends on the tribunal’s technical set-up. Counsel should ask what technology the tribunal is using and adapt their advocacy accordingly.

For instance, it is important to know how many screens each tribunal member is using. Ideally, each arbitrator should have three: one to look at the lead advocate, one to follow the documents being referred to and a third to follow the live transcript of the hearing. However, there will be instances where a tribunal member has one or two screens only, in which case counsel will have to decide what they want the tribunal to focus on.

If the tribunal only has one screen, one must decide if it is more important that the tribunal be able to look at the advocate as he or she presents the argument, or to look at the documents as the lead advocate delivers the opening. An easy solution is to ask if the arbitrator would prefer to have hard copies made available, in which case the screen can be used to show the advocate. If the arbitrator has two screens, it is possible to show the documents and the lead advocate simultaneously, but the live note will not be visible to the arbitrator. In any situation where the arbitrator cannot see the live note, it is advisable to speak clearly and at a moderate pace to ensure that every argument is clearly communicated to the tribunal.

In certain cases, it is preferable to deliver hard copies of the submissions, hearing bundles or demonstratives to the tribunal members subject to their confirmation, as they can then use the hard copy to take notes during the hearing. In that case, delivery of the hard copies should be arranged in advance.

What is a good presentation in a virtual hearing?

Good advocacy in a virtual setting requires counsel to be in full control of the technical equipment, especially the camera, and to skilfully present the key arguments and exhibits. A fine balance needs to be struck between the tribunal looking at the material and focusing on the speaker.

Reinforce – don’t distract – with PowerPoint

PowerPoint presentations can be a valuable part of an opening statement, but they can also distract arbitrators if used improperly. The key is to make sure the slides track very closely with what counsel is saying. If the slides contain more information than the attorneys convey orally – or if the slides include distracting pictures, charts or graphs – the tribunal may focus on trying to decipher the slide, at the risk of no longer listening closely to counsel. That is unlikely to be the intended goal. Rather, slides ought to be used to reinforce, not distract from, oral submissions.

Typically, I do not find it helpful for counsel deliberately to provide more PowerPoint slides than they intend to cover in their presentation. Counsel may hope that by submitting more slides than are discussed during the oral argument, they are getting an ‘extra’ submission of material to which the tribunal may refer after the hearing concludes. Even if that were an acceptable practice, however, in my experience, arbitrators focus on the slides that were discussed during the hearing, rather than on slides that were not discussed or explained.

– Stanimir A Alexandrov, Stanimir A Alexandrov PLLC

To assist the tribunal, counsel should, on the one hand, emphasise their strongest arguments at the hearing and establish eye contact with the tribunal, and, on the other, pace the presentation so that the tribunal has some time to breathe. An advocate should try to pick up the tribunal’s non-verbal cues as much as possible, even if it might be harder to do than in an in-person hearing. Here, the role of the second and third chairs at the hearing becomes even more important; it is simply not possible for the lead advocate to deliver the speech, look into the camera and pick up on all of the tribunal’s cues at the same time. The second and third chairs should be focusing on the tribunal’s reactions and informing the lead advocate as the hearing goes on, so that he or she can adapt the advocacy.

Presentation technology is similarly a matter of fine balance. Every party wishes to be fully heard, and tightly packed presentation slides may, from a party’s point of view, appear helpful and informative. PowerPoint, Prezi or other presentation software might appear at first glance like a good opportunity to refer to more exhibits, include more arguments and generally cover more ground. However, if used excessively, slide decks can hinder effective advocacy: the tribunal could lose its path in badly structured presentation materials or could get easily bored if too much text is squeezed into one slide. The presentation material should be succinct and impactful to help the tribunal understand the core issues and narrative of the case. Slides should not inundate the arbitrators with pointlessly complex arguments and references to exhibits. The goal of a good presentation is to give the tribunal a structure with which to follow the hearing; allowing the arbitrators to understand what the key documents are (and what the parties’ contentions regarding them are) so that it can later be used by the tribunal for its deliberations.

To screenshare or not to screenshare?

The lead counsel or his or her team (and not the service provider) should control the screensharing function and make clever use of it. This will allow counsel to turn it on and off depending on whether the attention of the tribunal should be directed to the presentation materials or the speaker. It might, at times, be more important to share the PowerPoint presentation while in other instances, it might be preferable to have the tribunal focus on the speaker. If done properly, screensharing will allow counsel to save time by assisting a witness to immediately spot the document at issue. These decisions will have to be made during the hearing by the second chair (or the third chair), who must evaluate the circumstances, and adapt to them. For this to happen seamlessly, the counsel team should rehearse several possible situations in advance and have multiple plans for how they wish to use the screensharing function.

Based on recent experience in virtual hearings, it is recommended that someone within the counsel team, who is already acquainted with the material, control the screensharing function. The second or third chair will be familiar with the presentation material, having created and reviewed it in advance. For example, with respect to a PowerPoint deck used in an opening statement, the legal team will have likely worked together before, rehearsed or have access to a script and know when to move on to the next slide. The legal team will have in-depth knowledge of the exhibits, having reviewed and relied on them for prior submissions, and will know where they are saved, and which page of the exhibit is relevant. Conversely, delegating the above (i.e., control of the screensharing function) to a service provider is not recommended because that person would not have this extensive knowledge of the material. The more the service provider stumbles, the more likely that the tribunal will be subconsciously annoyed by any additional disruption.

If possible, counsel should avoid splitting screens when using the screensharing function. Although this allows the display of multiple exhibits at once and facilitates comparison, it is at times counterproductive. That is because depending on the size of the participants’ screen, split screens might prevent the witness and the tribunal from properly seeing and reading the exhibits.

Use of videos in oral statements

PowerPoint slides have often been used during in-person oral openings, and they continue to be popular presentation tools in virtual hearings and webinars. However, rarely do counsel in an arbitration use video clips as part of their advocacy in oral openings or closings. Virtual hearings and videoconferencing platforms undoubtedly make the use of videos easier because people are already looking at a screen. Counsel should consider utilising video clips as part of their advocacy, if it fits the case.

This might have been a divisive suggestion if hearings were to remain in-person, since showing short video clips in hearing rooms could be complicated and cumbersome given the sound quality, video setting and connection issues. However, these are mostly cancelled out in a screen-sharing setting.

Some further benefits of using video clips are as follows:

  • With respect to oral closings (if ordered by the tribunal), the use of video clips of witness testimony can be quite effective since it gives a more ‘live’ feeling of the evidence (rather than simply quoting from a transcript).
  • In construction disputes, videos could be paired with 3D design to give the viewers a better understanding, especially if it involves technical issues.
  • Videos can also be a useful medium to change the pace or mood of a presentation.

Reinventing oral arguments with video clips

Video clips could be another useful weapon in a counsel’s arsenal, and counsel should grab the advantage of being able to use videos in virtual hearings to make presentations shorter and more effective. For instance:

  • In lieu of a traditional oral opening, counsel could present a pre-recorded video of an oral presentation to introduce the case, its core issues and the parties’ respective positions. Each presentation would be between 15 and 30 minutes followed by an oral session during which the tribunal may ask questions and improve their understanding on specific issues.
  • During opening or closing presentations, counsel could present pre-recorded video clips of witnesses, whether they have been cross-examined or not. The recordings would not be used to introduce new evidence but as the audio-visual transposition of the witness statement, that is, the parties would prepare both written and audio-visual written statements. Hearing and seeing a witness often has greater impact on the tribunal than simply reading written witness statements.

Cross-examination of fact witnesses and experts

Effective cross-examination

Mostly, the end goal of a hearing is to persuade the tribunal that the harm a party suffered merits compensation. This effort at persuasion takes many forms, one of which is the cross-examination of fact witnesses and experts. Cross-examination is significant because it is the only time when counsel have direct access to the counterparty’s witnesses and experts and gets the opportunity to offset the impact of their testimony. More often than not, cross-examining experts and fact witnesses is a document-oriented process. Because counsel rely on documentary exhibits to try and impeach the credibility of a witness, cross-examinations are almost always document-intensive. Hence, the flawless handling of exhibits in a virtual hearing is a core element to successful virtual advocacy.

Although technology has come a long way, counsel should consider that successfully using technology to cross-examine witnesses in virtual hearings and in-person hearings is fundamentally different. Due to technical issues, progress in virtual hearings might be slower than usual. For instance, there might be a lag with the video or audio technology. Or it could happen that live notes stop working intermittently so that the cross-examination is constantly interrupted. Therefore, due to time constraints and shorter attention span, counsel should favour short, impactful questions in a virtual setting. Here, using long set-up questions or extensive document-heavy questions for one issue is less effective and more time-consuming. Indeed, counsel must strike a balance between using shorter questions and set up with the key documents on a particular issue.

Using materials during cross-examination

Another major aspect of virtual hearings is whether the fact witness or expert has access to hard copies of the exhibits, soft copies via screensharing only or both hard copies and soft copies on a separate monitor where the witness can flick through the exhibits.

Whether the fact witness or expert has access to one or all of the above will vary depending on counsel’s preference and what the parties agreed.

On the counsel side, the lead counsel (or the person screensharing the materials) should make use of all the tools available to direct the tribunal’s and witness’s attention to the material sections of the exhibit. This could be done by zooming in on the relevant section of the document or highlighting it. It is also useful to provide a list of exhibits that counsel intend to introduce later during cross-examination to the service provider prior to the session to save time and ensure a natural flow during cross-examination.

Counsel should also consider how to effectively invite the tribunal after the hearing to review or highlight the documents shown during cross-examination. In an in-person setting, handing out a cross-examination binder was an option, but that option becomes less handy in a virtual setting. At the same time, virtual hearings make it possible to share hyperlinked digital binders, where all documents that will be used for cross-examination are available and important parts have been highlighted, which the tribunal can use both during the hearing and after. Counsel should consult with the tribunal, as preferences will necessarily vary between arbitrators.

Monitoring while cross-examining

Another novelty that virtual hearings will bring about is the increase in monitoring one’s oral advocacy. As participants can see not only themselves, but also opposing counsel and the tribunal on the screen at the same time, the act of someone monitoring the flow of the hearing will probably increase.

To maximise the effectiveness of monitoring, counsel, and participants in general, should (1) turn off the cameras of non-speakers, leaving on only the cameras for the tribunal and the speakers, (2) position the tribunal members’ screens in an easy-to-monitor location, to better observe when and where the tribunal is focusing its attention, and (3) self-monitor from time to time to ensure that they are clearly visible to the tribunal and appear professional.

Don’t underestimate the impact of interpretation

Last but certainly not least, counsel should be mindful of the impact of interpretation on cross-examination. The issues that interpretation may cause in an in-person hearing will be magnified in a virtual setting. For instance, the virtual setting has made it harder for counsel to interject and oppose any inaccuracies in the interpretation without cutting the flow of the cross-examination. Furthermore, the quality of the interpretation is intrinsically linked to the sound quality. As such, if available, counsel should consider the option of simultaneous interpretation rather than consecutive interpretation as the latter interrupts the flow of questioning and eats up cross-examination time.

Concluding tips and best practices

To conclude this chapter, the key tips and best practices to achieve effective oral advocacy at virtual hearings are as follows.

  • Practice is the key to a successful virtual hearing. Take every opportunity available, such as virtual conferences and webinars, to practise.
  • Know your best angle.
  • Less is more. Be brief and to the point, during the opening statement, cross-examination and closing statements.
  • Keep in mind tiredness, both digital fatigue and fatigue due to time differences.
  • Give the tribunal a hyperlinked hearing bundle with the exhibits already highlighted where relevant.
  • Do not panic even if something goes wrong. Your technical setting might fail or technical glitches of other participants might adversely impact the flow of your advocacy. This can always happen – just rectify the issue and carry on.
  • Virtual hearings allow for self-monitoring, so ensure you take advantage of it. Keep in mind that the screen size will differ depending on the videoconferencing platform used.

Notes

[1] Kap-You (Kevin) Kim, John P Bang and Mino Han are partners at Peter & Kim. The authors wish to thank Célia Guignet and Sameer Thakur, associates at the firm, for their contributions.

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