Video Conferencing Platforms Will Be Increasingly Used During the Pandemic
The use of video conferencing platforms to conduct administrative and tariff setting hearings online is one mechanism that regulators are using to continue to process proceedings during the COVID-19 pandemic. For most, navigating an online hearing process will be a new experience. Drawing on our experience to date, this bulletin provides some practice points for those heading into online hearing processes.
Format and Procedures in an Online Setting
The regulator may adopt different procedures for its online hearings than you are accustomed to in a live setting. If the regulator does not set out a detailed agenda in advance, then reach out to the regulator’s counsel, staff or hearing officer, as appropriate, to find out as much as you can about the agenda, so that you can properly prepare.
Items to know in advance include:
- What platform is being used?
- Is there an opportunity to test the system and connections in advance?
- Is there a number to call if one is having technical difficulties on the day of the hearing?
- Will a court reporter be participating? Will the hearing be video or audio recorded, or both?
- Do non-lawyer participants require a non-recording undertaking in advance?
- Will the hearing be open to the media or broader public?
- How are exhibits to be marked?
- Confirm witnesses are to be affirmed (not sworn) and find out who is expected to administer the affirmation.
- What is the schedule for the day? Will there be set recesses?
- What is the protocol for those participating? (e.g., Dress code? Audio line muted when not speaking? Video off when not making submissions or asking questions?)
- Is there any special protocol regarding making objections?
- How are witnesses and expert witnesses to be called to give testimony? Are they expected to be on the line from the outset? Will they be in virtual waiting rooms?
- Will there be breaks for counsel to confer with one another or with their clients?
- Will there be individual chat lines to allow counsel to confer with their clients or co-counsel?
- Are there documents that the tribunal will want in advance?
- Will there be opening and closing submissions? What opportunity will there be for reply submissions?
- Are time limits to be applied?
Extra Steps to Ensure You and Your Witnesses Are Prepared
As with all oral hearing processes, preparation and, in particular, witness and expert witness preparation is a key to success.
In addition to the usual steps that you may take:
- Practice question and answer sessions in an online session, similar to what will be used in the hearing, so that witnesses become comfortable with the format. Explain that there could be a delay and that it is very important that one look for visual cues and not interrupt or speak over another participant.
- Test out the online platform with the regulator’s staff or hearing officer in advance to ensure it is working smoothly. Witnesses should be able to concentrate on their testimony without the additional stress of dealing with technical issues.
- Review features of the online platform in advance with witnesses. Witnesses should be familiar, for instance, with how to display or hide video, mute their microphone and manage how participants are presented on their screen, how to share their screen, as well as how to leave the “meeting”.
- Witnesses should be advised never to use the “chat” function of the application.
- If possible, “pin” the decision-maker’s video to the screen so that witnesses can see their audience at all times.
- As the internet connection could be lost at any time, witnesses should have clear instructions on who to call if experiencing technical difficulties or how to stream the internet from the hot spot on their mobile device. Be aware of call-in options in the event the witness cannot get an internet source to work.
- The physical set up for each of the witnesses should also be assessed first. Objects are usually much larger by video. As such, witnesses should ensure that their background appears professional and should frame themselves correctly, having the camera positioned directly at them (as opposed to upwards or downwards). The witness’ head and shoulders should dominate the screen.
- The witness should be aware of video background and any visual or audio distractions, such as children and pets. If possible, a room with a door is preferred.
- Lighting is important, so the witness should face a window or be situated where they are exposed to adequate light.
Hearing Day: Making the Most of the Medium
- Be on time. Witnesses should join the hearing at least 10 minutes in advance of the start time to be placed inside the electronic “lobby”.
- The witnesses should identify themselves when they speak, speak slowly and maintain eye contact with the camera. Like any other hearing, food and drink except for water should be kept outside of the “hearing room”.
- The microphone should be muted when the witness is not speaking. This will minimize background noise. The witness’ volume should be set no higher than about 50%, so that the device’s mic does not pick up its own speaker volume.
- Maintaining appropriate facial expressions is a must.
- Only pen and paper should be used to take notes. The sound of typing is distracting. Be mindful that shuffling paper can also be distracting.
- All other applications or browsers for witnesses should be closed to ensure that notifications do not disrupt the hearing.
One of the advantages of video conferencing is that participants have the resource of their computers at hand. While many video platforms can also be utilized on mobile devices, participants and witnesses in particular should have all relevant documents stored in a designated and easily accessible folder on their computer so that documents can be accessed if required during the hearing. Different administrative tribunals have different rules and procedures regarding the extent to which a witness may refer to documents or other external sources in aid of his or her testimony. At some tribunals, testifying is like an open book exam. At others, strict rules of evidence are followed with respect to a witness’ testimony. Unless the tribunal practice is the former, witnesses should be instructed that they are not permitted to refer to documents (or any other source of information) during their testimony without express direction from counsel or the tribunal, or pursuant to agreement among counsel in advance. In such cases, it should be clear to all participants if a witness is referring to a source to assist him or her in providing evidence.
Advanced Preparation and Agreement on Key Points
A challenge with online hearings is that there may be little opportunity to communicate with co-counsel or clients, once the online process begins. For this reason, increased preparation is needed to ensure that the lawyer has instructions on how to proceed. In particular:
- Prepare opening and closing submissions in advance, so that they are reviewed and approved by the client before the online hearing begins.
- Consider potential procedural points and prepare and agree on submissions in advance.
- Consider key questions and issues and prepare and agree on positions in advance.
It is always a good practice to confer with opposing counsel before a hearing. This is especially important with a virtual hearing. Speak to opposing counsel well in advance of the hearing in an effort to streamline the proceeding and identify areas of difference. Attempt to reach agreements on the admission of documents, the length of examinations, and the disclosure of case law. If possible, consider the use of agreed statements of fact to avoid calling unnecessary witnesses or prolonging the proceedings. Consider exchanging and providing the tribunal with written opening statements in advance. Work together on providing the tribunal with any other documents (such as chronologies, organizational charts, expert reports, or will-say statements) in advance of the hearings that may assist the tribunal.
Make Available Alternative Communication Channels During the Hearing Process
Issues may arise during the proceeding that require communication between lawyer and client, or amongst participants. For example, the lawyer may need instructions during the process. Subject to any rules or norms of the regulatory process in your jurisdiction, you may wish to consider the following:
- Having an online chat set up amongst your team (excluding witnesses providing testimony) that can be used in real time during the hearing. Consider including support staff that can find additional information if needed.
- Having a separate dial-in conference call line available if needed on a break to discuss any issues that arise that require instructions to legal counsel.
Security and Confidential Information Needs to Be Considered in Advance
Many security issues have been raised with respect to the various video conferencing platforms that are available. Further, it is difficult to control who else might be in the room with a participant and to monitor what information a witness is accessing while testifying virtually (although there are software options available that monitor the information being accessed by a witness through his or her computer).
We recommend having a plan for the filing of confidential information through other processes:
- Confidential information must only be sent to the regulator and authorized participants through secure channels.
- Consider requesting that answers to questions requiring confidential information be filed after the hearing.
- If there is a known likelihood for the need to send confidential information during the hearing, consider setting up an email distribution list for those participants who may receive the confidential information.
As the duration of the COVID-19 pandemic is highly uncertain and may continue for several months, we expect this historic event to be a game changer for administrative tribunals as online tools become increasingly important to ensure existing proceedings continue to progress and to ensure new applications are processed in a timely fashion. While online hearings are new to many of us, we expect that intensive preparation time and planning will be equally as important to ensure such hearings proceed as smoothly and fairly as possible. If online proceedings prove to be effective, we expect regulators to continue to use them in the future for convenience and cost effectiveness (e.g., to reduce travel time and costs associated with in-person hearings). As we move forward, it is therefore a worthwhile investment for lawyers, regulatory teams, and tribunals to learn how to conduct online hearings well, identifying and leveraging the best technology and practices.