Monday, June 8, 2020
I spent two full days this week in a Zoom arbitration (for convenience, I’m using “Zoom” for any teleconferencing technology). Here are my thoughts:
- Overall, the process works well for presenting information. Everyone seemed comfortable with Zoom’s functions and specifically with the concept of only one person talking at a time, although that was occasionally challenging.
- The process was efficient. Nobody had to travel. We started on time. Breaks took roughly the amount of time allocated. And we definitely had a shorter lunch break!
- There are limitations related to the “tone” or “feel” of the parties’ attitudes and behavior, which are flattened out literally and figuratively in a Zoom call. As a result, you should expect to lose the value of any emotional impact that you would normally anticipate.
- It is important to be proficient and nimble with the technology, and not just by making sure you mute/unmute as appropriate (although please do that). Handling of hard-copy exhibits requires some foresight and planning (blowups, highlighting, etc.). Presentation and review of exhibits during the call requires a good working knowledge of screen sharing. Introduction of new documents requires patience, since it is time-consuming. Even if you are comfortable with Zoom, it is worth practicing the presentation of your exhibits before the hearing.
- Objections can be cumbersome. In a live hearing, it is easier to interrupt and object, and for everyone in the room to instantly understand what is happening. There’s a slight delay using Zoom, so the witness generally continued to talk, and the arbitrator had a hard time focusing on the objection. It would be good to think about some signal that can be used, maybe even a visual “stop sign.”
- There are norms for Zoom, mostly related to collaboration and information sharing, that are challenging to overcome. The adversarial, sometimes hostile, tone of cross-examination seems out of place. Witnesses tended to treat answers as an opportunity to engage in conversation/lecture rather than a specific request to directly provide limited information.
- It was much harder to communicate with my client about cross-examination of opposing witnesses than it normally is with my client sitting next to me. Text messaging was an imperfect solution.
- The process can be draining. Think of sitting in front of a laptop/monitor/iPad all day staring into 4–5 little boxes. One workaround that I used:
- I connected my phone to a large monitor/TV by HDMI;
- I separately connected by phone to the Zoom call;
- I muted and stopped Zoom video on the phone; and
- I watched the larger monitor/TV instead of my iPad.
It was much easier to screen share and read documents that way as well. I’m sure there are other options.
- There are obvious security concerns, primarily the danger of attorney-client communication through a separate electronic conversation. Another is the potential for recording. Our arbitrator issued an order prohibiting recording, but enforcement could be difficult.
Given present circumstances, and the likely efficiencies of Zoom hearings even after the pandemic, we should work together to develop best practices.
This article was previously published on LinkedIn on May 17, 2020.
Jonathan B. Frank and his wife Jan founded Frank & Frank Law in 2019 to provide practical, efficient solutions for business and real estate disputes. Jonathan is a graduate of Stanford University and the University of Michigan Law School, cum laude. He has authored numerous articles on litigation practice, and is incoming co-chair of the Oakland County Business Court Committee. He is also a trained mediator and a Neutral Arbitrator with the AAA. More information at www.frankandfranklaw.com.
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