COVID-19 Has Changed the Way Judges Hear Legal Proceedings
Because COVID-19 spreads quickly, people have been asked to social distance themselves. Many jobs are being done at home, virtually. The U.S. Court of Appeals has changed the way arbitrations are taking place. Now is the time to update the arbitration provisions in your contracts.
Arbitration Hearings vis Zoom
An arbitration hearing is similar to an informal trial and involves the parties, their attorneys, witnesses, and arbitrators all together in the same room. The COVID-19 pandemic is changed the way businesses are conducting their conferences and meetings via Zoom; arbitration hearings are no different.
The American Arbitration Association allows arbitrators to hold hearings in person or via videoconferencing unless the parties have agreed on a method. The parties can decide whether it would be advantageous to hold the arbitration hearing in person or remotely and then add the provision into the contract.
A virtual arbitration hearing may be advantageous if you need a quick resolution or if your position is easy to convey. It is easier to coordinate all participants’ schedules virtually than it is to schedule them all in person.
Your dispute is complex or document-intensive, an in-person hearing may be a better place to present your case to the arbitrators.
If finances are an issue, in-person hearings are more expensive than virtual ones, especially if travel is involved. A videoconferencing arbitration is less costly if there is concern one party might try to drive up the cost of arbitration.
An in-person hearing may be beneficial if a party or witness may appear more credible in person. It may not be easy to see a participant’s facial expression because of the mask mandate in federal buildings.
Pros and Cons of Virtual Hearings
Pros
- Timing: Courts and litigants are finally moving forward with hearing dates that have been stalled.
- Convenience: Participants do not need to deal with travel to court or deal with parking as they can attend the hearings from the comfort of their homes, offices, or cars.
- Witness Credibility: Zoom hearings allow judges to truly assess witness credibility with prolonged eye-to-eye contact, more focus on the witnesses, and fewer distractions.
- First-hand Home Assessment: Judges can see the home and the child’s room first-hand.
Cons
- Control: Judges cannot control a virtual courtroom in the same way they can an actual courtroom in terms of who is physically present, who is using a cell phone, who is talking to whom, who is coaching witnesses, etc.
- Anyone Can Watch: While anyone can walk into an actual courtroom to watch a family law hearing, the reality is that most people are not going to take the time to drive to court, find parking, go through security, etc. With more people at home with more time on their hands, they can log onto YouTube to quickly discover details of any case.
- Protecting the Integrity of Testimony: IIn trials/evidentiary hearings, judges will usually sequester third-party witnesses in the hallway outside the courtroom. With YouTube access and Zoom, sequestration and cell phone usage are much harder to enforce. Will judges be able to tell if witnesses are being coached or using notes?
- Illegal Recordings: YouTube is supposed to display a warning that the court hearings are not allowed to be recorded by the public – only courts can use the record feature on Zoom. Realistically, courts have no way of knowing if third parties have illegally recorded the hearing.
- Disclosure of Confidential Information: You may need to share confidential financial, medical, or personal information in family law hearings, such as tax records and bank statements. If documents are being introduced into evidence through Zoom’s share screen feature, these will also be visible on YouTube.
- Safety in Domestic Violence Cases: IIf parties reside in the same home, it may be dangerous for domestic violence survivors to safely participate in court hearings.
Conclusion
Arbitration is changing as the business world moves toward operating business remotely. Reviewing your arbitration agreements to reevaluate whether they help add virtual arbitration to your contracts puts you in the best position.
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Paul J. Burkhart
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