For arbitrations and trials that are pending and/or are scheduled for the near term, the judges/arbitrators/counsel/parties are now confronting the decision on whether to proceed forward with conducting the proceedings remotely. If they decide to proceed forward, there will naturally be some reluctance to proceed forward. The reluctance is because it is new and unfamiliar. It is because there is a sense that it may be more challenging to evaluate a witness’ credibility and veracity.
There are also technological concerns of virtual hearings — both as to functionality (testing the video/audio connection) and the integrity of the testimony. In this post, I am sharing a contribution from my Pierce Atwood law partner John Bulman, FCIArb who regularly serves as an arbitrator handling construction and commercial cases domestically and internationally. In his post below, John addresses specifically the issue of additional measures that should be considered by arbitrators, attorneys, and witnesses to ensure the integrity of the virtual arbitration process.
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Virtual Witness Integrity Steps,
Arbitrators, attorneys and witnesses have an obligation to ensure that in the context of virtual hearings, all forensic and procedural fairness requirements are met. The use of a virtual platform for arbitration proceedings gives rise to a number of issues, one of which is the swearing in of remote witnesses and adoption of safeguards to avoid problems. Ensuring that the witness does not utilize “crib notes” during testimony is one such issue. Another is improper coaching by a person in the room with the remote witness or otherwise in direct communication with the witness during examination. Of course, Parties should always be encouraged to negotiate a set of appropriate protocols for submission and adoption by the Panel. In the absence of such cooperation, there are a number of steps a Panel can take.
Everyone is familiar with variations of the standard oath: “Do you swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth.” This, of course, is effective in the live face-to-face context. In the virtual context, this oath can literally be met even by a witness who is receiving information from others during his/her testimony. This reality requires adoption of some procedural safeguards and an expanded witness oath. Some of these are addressed here, but this piece is not an exhaustive treatment of issues or solutions.
1. When a hearing starts, all participants should be identified. The Panel Chair should conduct a colloquy with the parties and counsel to confirm that a) the only persons permitted to attend are those approved by opposing counsel and the Panel and b) no one shall be assisted during the course of examination. This colloquy, at least as to attending participants, should be repeated after hearing breaks.
2. For each remote witness, the Panel Chair should identify all individuals present in the location of the witness, and the witness should remain visible to the Panel and counsel at all times.
3. Counsel should confirm to the Panel that each remote witness has been apprised of the procedures or protocols relating to remote witnesses that have been adopted for the virtual arbitration proceeding.
4. Where the witness is not accompanied by counsel or other representative, steps must be taken to deliver potential exhibits prior to cross-examination. One mechanism is to deliver a sealed package of exhibits to the witness who will then open the sealed package on camera in front of the Panel and counsel at the onset of testimony. Another mechanism is the document sharing platform available on Zoom and other platforms.
5. Finally, an expanded oath should be given to the witness that addresses these concerns. One example is:
“Do you swear or affirm that the evidence you are about to give will be the truth, the whole truth, and nothing but the truth? Do you swear or affirm that you have followed the Panel’s procedures regarding your appearance as a witness in this matter? Do you affirm that there is no one else in the room with you [except those authorized], that no unauthorized person can communicate with me, and that I have not seen or reviewed the documents that may be shown to me by opposing counsel.”
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While John Bulman’s post is focused on virtual arbitrations, the same approach may be taken in bench trials. Also, counsel may propose these measures to their Panel to obtain the same level of protection.