Advocacy in Virtual Hearings
This is an Insight article, written by a selected partner as part of GAR's co-published content. Read more on Insight
Oral hearings are an important part of the international arbitration system: they are where elaborate written submissions are carefully pleaded and where factual and expert witnesses are examined, and they are necessary both for their instrumental value and to ensure that clients and lawyers go away feeling that their case has been heard and fully understood by the tribunal. As such, there was great concern when covid-19-related travel restrictions forced hearings to be conducted virtually – could advocacy in virtual hearings be comparable to that in in-person hearings? This question has now been answered – virtual oral advocacy can, in many ways, be as effective as in-person advocacy.
While travel restrictions have all but disappeared, it is evident that virtual hearings are here to stay. They are cost-efficient and better for the environment, and it is now clear that it is possible to argue even the most complicated cases through virtual hearings. As such, it is necessary to consider whether advocacy in virtual hearings is different from advocacy in in-person hearings, and if so how. These differences, and how best to adapt to them, are the core focus of this chapter, which explores the fundamentals of advocacy in virtual hearings and provides suggestions on how to effectively communicate and engage with the tribunal in a virtual setting.
The discussions in some of the other chapters in this book would also apply to virtual hearings. For instance, the challenge of how to clearly communicate a complex fact pattern in a simple manner (for an opening or closing) or of dealing with a hostile witness are similar, irrespective of whether the hearing is conducted in person or virtually. This chapter focuses on dealing with the additional layers of complexity that a virtual hearing adds to the process.
Differences between virtual and in-person hearings
Before analysing the distinct characteristics of advocacy in virtual hearings, it is essential to consider the key differences between an in-person hearing and a virtual hearing.
The first and most obvious difference between the two is that an in-person hearing is conducted in person, while a virtual hearing is conducted without the physical presence of participants in the same room. In an in-person hearing, the tribunal, counsel, party representatives, witnesses and experts 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 may be attending from several different locations. 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 shortly after the start of the advocacy. Again, this will have a significant impact on the style of effective advocacy.
With these differences in mind, this chapter addresses 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 oral openings and closings, and 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 potentially a dozen others, particularly so if the video layout is not configured to expand the speaker’s screen. At the beginning of a presentation, the tribunal will probably pay a great deal of attention to the person speaking, whether that is counsel or a witness or expert, 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 they will inevitably appear much smaller on a screen 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 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 read the script while maintaining eye contact with the tribunal. This 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 or blurred background as that may be distracting, especially when the virtual background crops the speaker; 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. During lockdowns, tribunal members suddenly had a front-row view of the speakers’ personal lives and homes. If a real background is being used, especially in a domestic setting, it should be a neatly kept one so as not to distract from the speaker.
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 themselves 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, the 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. Witnesses should have separate connections. This ensures that there are no disruptions or downtime when switching speakers and also prevents an entire legal team from 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.
- 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, which usually make it harder for the tribunal to focus on the speaker, as the video may switch its focus to different noise sources 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 as built-in microphones tend to pick up noise interference and provide lower sound quality.
- Lighting: lighting will affect how a speaker appears on screen. Counsel should consider in advance which lighting settings work best, whether the oral advocacy is made during daytime or night-time and the changes in lighting throughout the advocacy.
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. If possible, 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 screens. However, there will be instances where a tribunal member will only have one or two screens, in which case counsel will have to decide what they want the tribunal to focus on.
If the tribunal only uses one screen, counsel must decide if it is more important for the tribunal to look at the advocate or to look at the documents used by the advocate as he or she delivers the opening. An easy solution is to ask if the arbitrator would prefer to have hard copies of the oral presentation made available, in which case the screen can be used to show the advocate. If the arbitrator uses two screens, it is possible to show the documents and the lead advocating 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 use these 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 his or her 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 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, as 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 become easily bored if too much text is squeezed onto 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 arguments, 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 screen share or not to screen share?
The lead counsel or his or her team (and not the service provider) should control the screen-sharing 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 towards the presentation materials or the speaker. It might, at times, be more important to share the presentation, while in other instances, it might be preferable to have the tribunal focus on the speaker. If done properly, screen-sharing will save counsel 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 screen-sharing function.
Based on experience in virtual hearings, it is recommended that someone within the counsel team, who is already acquainted with the material, controls the screen-sharing function. The second or third chair will be familiar with the presentation material, having likely created and reviewed it in advance. For example, with respect to a PowerPoint deck used in an opening statement, the legal team will likely have 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 control of the screen-sharing function to a service provider is not recommended because they will not have 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 screen-sharing. Although this allows the display of multiple exhibits at once and facilitates comparison, it may be counterproductive. This is because, depending on the size of the participants’ screens, split screens might prevent the witness and the tribunal from properly seeing 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. Therefore, 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 because 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 virtual setting.
Some benefits of 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 as 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
In addition to the above, other ways to incorporate video clips into the opening or closing presentations can be very persuasive. 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; and
- 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 audiovisual transposition of the witness statement; that is, the parties would prepare both written and audiovisual 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
In general, 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 has 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 and the factual narration 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 live notes could 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 or document-heavy questions for one issue is less effective and more time-consuming.
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 screen-sharing only or both hard copies and soft copies on a separate monitor on which 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 controlling the screen-sharing of 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 or highlighting the relevant section of the document. It is also useful to provide a list of exhibits that counsel intends 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 if the service provider is handling the screen-sharing.
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 is an option, but that option becomes less practical in a virtual setting. However, virtual hearings make it possible to share hyperlinked digital binders in which all documents to be used for cross-examination are available, with important parts highlighted, which the tribunal can use both during and after the hearing. Counsel should consult with the tribunal, as preferences will necessarily vary between arbitrators.
Monitoring while cross-examining
Another novelty that virtual hearings brought 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) occasionally self-monitor to ensure that they are clearly visible to the tribunal and appear professional.
Do not underestimate the impact of interpretation
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.
As travel restrictions across the world have reduced, in-person hearings have slowly returned, particularly for bigger, more complex cases. However, there is no way (or reason) to put the genie back in the bottle: parties have found that virtual hearings (or at least some parts of that process) are a useful and cost-effective tool in international arbitration’s arsenal. One of the more recent consequences of this realisation is that hybrid hearings have become more mainstream.
In a hybrid hearing, some of the participants, usually the tribunal and counsel, will attend the hearing in person in a common room, while others, often witnesses, will join the hearing remotely. Hence, hybrid hearings combine features of in-person hearings and virtual hearings. As such, although praised for its cost- and time-saving aspects, a hybrid setting magnifies the potential technical issues discussed above.
During a hybrid hearing, counsel should ensure that in-person participants have a proper view of screens showing the remote participants, the live transcript and any documents shared with remote participants through screen-sharing. Hybrid hearings generally involve the use of multiple screens for in-person participants. In this regard, counsel should ensure that the tribunal is able to see counsel (and vice versa) as well as all remote participants.
Likewise, several cameras should be used to allow the remote participants to clearly see all in-person participants. Furthermore, both remote and in-person speakers should be mindful of their microphones to avoid an echo between the microphones relied on in the hearing room and the sound coming from the videoconferencing tool.
Except for these specific issues, the principles discussed in relation to virtual advocacy remain applicable.
Concluding tips and best practices
To conclude this chapter, the key tips and best practices for achieving 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 this. Bear in mind that the screen size will differ depending on the videoconferencing platform used.
 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.