Over the past eighteen months, the pandemic has definitely changed how we all live and work.
Whilst some of the challenges faced by experts have remained the same, virtual hearings have brought new challenges in both the preparation of reports and delivering testimony in hearings.
The role of the expert
Like many experts, I am often required to testify at a number of international arbitrations whilst simultaneously preparing for future arbitrations. This hasn’t changed during the period of the pandemic.
I have survived three periods of quarantine and have undertaken over 30 covid tests, thankfully I have been covid clear throughout, and am now vaccinated.
Maybe, being healthy and safe is challenge number one for the expert in virtual hearings? Becoming ill in advance of a hearing can be inconvenient and disturbing to many clients’ business strategies.
I have had over 12 flights back to the UK cancelled due to borders closing in various countries. I spent two months away from my partner, both of us have at some point been air locked between different countries.
An attraction of working as an international expert is often the lure of international travel to new countries or a return to countries we know and love. This year, international travel has been almost non-existent for many. There has been major disruption for anyone who has needed to travel.
In between traveling and testifying are long periods spent reading, drafting, writing, planning, calculating and understanding the intricacies of client’s case. But now we need to fit these in around Zoom calls and online meetings. A busy diary can mean being back to back for several hours a day. This leaves little time for the actual work of the expert to be done.
The expert role has changed.
The new and changing requirements of arbitral bodies
Working as an expert in international arbitration through the pandemic and beyond, I have seen a seismic shift in the conduct of arbitration proceedings. Primarily, for experts, the giving of evidence in the virtual environment.
The new normal is still developing and evolving and will no doubt continue to do so for some time.
The challenges that virtual hearings bring now will almost certainly be managed and improved, and over time I fully anticipate will be subject to new regulation . This is already evolving rapidly with the publication of guidance notes and documents from various bodies around the world.
The need to ensure compliance with the developing regulations is the first challenge that experts face.
The traditional reliance on the IBA Rules for the taking of evidence is commonplace amongst many of the appointing arbitral bodies guidelines in traditional arbitrations.
As the IBA Rules have developed, so too have the rules for conduct in arbitral proceedings of the appointing bodies.
We need only look at the CIArb, LCIA , ICC and others to understand the effect of the pandemic on evidence. Each of these organisations has sought to keep up with the rapid change brought about by the past 18 months of pandemic.
Previously, my expert commissions would involve a considerable amount of time spent with clients. Where matters are of a technical nature, I might spend periods on site undertaking measurements, surveys and discussions with those involved at the coal face of the project.
Seeing a project in person is much better than a desktop review.
Understanding the infrastructure of projects allows you to contextualise the unique issues, the risks, the opportunities and challenges of constructing a project. Where do material supplies come from? How is the site accessed?
Placing yourselves in the shoes of those subject to contractual issues cannot be replaced by the desktop model. Sometimes pressure points only become clear when you see them for yourself, sharing the site experience and difficulties with those who have lived a project.
To meet this challenge, the use of drones has provided assistance in the expert process. This use of technology is invaluable when used on large projects in oil and gas or long projects such as motorways or overhead cabling.
Being onsite, but not on site
When given the opportunity to meet with client teams it has become essential to manage the process of engagement. It has always been a challenge to ensure the availability of the requisite personnel, key decision makers and the stakeholders for a scheme. Now, additionally we must ensure that the risk of covid to any of the attendees is minimised.
Thankfully the use of video conferencing can make things easier, and we take a more detailed look at this below. But as with any meeting, detailed agendas and advancing the issues for discussion prior to the meeting will maximise the use of time. A further consideration is the use of detailed brief and document exchange. This will allow responses to questions to be provided in time and with adequate reference to source materials.
A challenge that also requires assistance is the difference in the languages spoken. The expert needs to understand the full context of a translation from a mother language to his own. I have undertaken correspondence reviews with clients where the native speaker has translated the native language of the correspondence to English in a recorded meeting thus allowing me to understand the merits of the correspondence.
The challenge of virtual platforms
The challenge for the expert, particularly when working remotely can be the use of all of the above platforms by different clients. It becomes necessary to manage one’s own hardware to accommodate the varying requirements. Inevitably products produced by one proprietary brand are less happily accommodated by other devices, and so challenging workarounds are often needed to achieve a good result.
For the expert who is generally of an older age and more familiar with a career that commenced with files and paperwork, moving into the arena of multiple virtual platforms and sharing of information via portals requires training. This training needs to be regularly updated as technology, features and functionality improves.
Add to this the instability of internet providers, the difficulties of working from home with gardeners mowing lawns and traffic buzzing around and the occasional family pet or small child wandering in to say hello the challenges have been extensive.
Like many, I have invested in additional monitors, ipads and computers in order to combat the requirements of virtual hearings.
In my opinion, conducting expert meetings is significantly better when done in person.
The engagement in the joint statement of methodologies is fine using the virtual platform. However, when the detail of mutual reports is discussed, in my view, the expert meeting is significantly more productive when in person.
In-person discussion allows the interrogation by the experts of issues that may not be immediately obvious or apparent when considered virtually or by regard to written reports.
The body language, the language used is, in my view, somewhat constrained by the virtual expert meeting. The breaks arising from the search for relevant documents may result in a loss of emphasis of a particular issue.
In rising to this challenge, the use of combined documents and hyperlinking has significantly assisted my approach. Whilst this challenge has again called for some re training, it is a challenge that can be met by the willing experts. This will avoid the need for emailing or uploading documents after the or during the meetings. Unnecessarily extending the process at risk of time and costs.
Willingness to Change…
The willing expert opponent will not provide a challenge but the unwilling may !
The transparency of documentation by way of agreed indexes of information is essential to this process and the provision of agreed expert shared portals assists.
When confronted by multiple experts (acting for joint claimants/defendants), a sensible approach is to discuss and agree common issues. These can be managed in the expert meetings in advance of the joint minutes being issued. This may be accompanied by a glossary of terms or agreed definitions. Such definitions and documents can assist the tribunal in understanding the merits of the propositions raised.
The recording of expert meetings, which are conducted without prejudice, may be of assistance to the experts. However, care is needed for confidentiality and client guidance.
From a practical perspective, I am of the view that virtual hearings can revolutionise the dispute sector. This is much in the same way that statutory adjudication has done so in the UK.
The previous issues of availability and postponements tended to dominate the arbitration process. Often finding a suitable date could extend the period by 6 to 12 months.
The availability of arbitrators to conduct matters and hearings without unnecessary travel ought to allow justice to be done with greater expedience.
Virtual hearings have proved to be the best and sometimes the only option to progress disputes which have significant impact on a party’s financial well-being.
Arbitrations on documents only, memorial style hearings and the application of chess clock rules can lend themselves to effective dispute resolution. This ultimately ends a period of uncertainty for the claimant or defendant.
Many jurisdictions have seen their governments providing support for dispute resolution via virtual platforms. Parties are urged and directed to agree on methods and procedures to allow speedy conclusions.
Back to the challenges…
The fundamental requirement of arbitration is to ensure a fair process for the parties. The process must allow parties’ experts adequate time to assess issues relevant to the disputes in order to to provide accurate and objective opinions in their reports.
The tribunal has to be at the forefront of this process to ensure that both parties receive a fair trial.
My experiences of the challenge of virtual hearings have been, in the main, successful.
The practice, in advance of the hearing, of engaging with clients, consultants, lawyers and the opposing expert is good preparation for the virtual hearing. Without this, I would not be particularly eager to enter into a virtual hearing.
To overcome issues of technology failure, which are detrimental to examination and cross examination, one option is the use of a witness room. These are often organised by instructing lawyers or decided mutually by the parties.
To that end, most dispute resolution centres, including the ICC, LCIA, IAC and ICDR provide facilities for virtual hearings.
Not only does this simulate the arbitral arena but it also ensures that my canine friends do not make unexpected calls into my office and sit under my desk.
On a serious note, the conduct and protocol guidance offered by the various arbitral bodies are of great assistance. These should be requested from instructing lawyers and familiarised in advance of the hearing by the expert.
The availability of the report and supporting documents is ordinarily provided by the reference to the bundle. It important to ensure a correct understanding and familiarity with the documents in advance. I have often found myself practising how to find a document when referring to it.
The challenge of being erudite with language is now even more important. The expressive use of hands or body language may once have assisted an expert in providing opinion. This is now limited to the articulation of the words used and the clarity given by them.
This may place a greater emphasis on the written reports. In my view, it also lessens the overly technical approach by use of common sense. Simple language helps to distil the technical or jargon terms that may not necessarily be discussed in the time allowed.
The virtual meeting can be a challenge for certain experts. Those that use whiteboards, flipcharts and visual displays and prefer to present on their feet or in an animated fashion may struggle in this new format.
The virtual hearing has formalised this to some extent. It prevents experts from interacting with the tribunal in their explanations of technical points. I think of delay analysis here, which at the best of times, is difficult to explain in simple terms. Often a picture can paint a thousand words.
In overcoming this challenge, I have tended to utilise power point slides in my explanations. This has been a new challenge in training and understanding of Microsoft but has not been insurmountable.
However, do I truly believe that the expert duty is satisfied in the virtual hearing? After all the expert should make a statement to such effect.
My opinion is not necessary for the purpose of this discussion but I will raise the following challenges:
Is the challenge of being unable to conduct in person meetings overcome by the virtual platform?
For example, without the use of the white board or the flip chart, the distribution of printed photos from the report used to emphasise a point, the A0 programme placed on the wall and explained in simple none technical detail. Without the delicacies of issues unsaid but which are understood from body language or jittery reaction to cross examination.
When these challenges are not overcome, can a party claim to be subjected to unnecessary prejudice?
Has there been a benefit passed to a party by engaging in virtual hearings?
These are not issues for me to address today. But no doubt there may be some interesting case law to read in the coming years if and when a challenge is made by the legal profession.
Managing the challenges as an expert
Hopefully this article has raised a number challenges of the expert in the virtual process.
The expert who falls or rises to the challenge will have to contend with:
- Changing technology
- Changing guidance and protocols
- Working across timezones (in international matters requiring attendance of multiple witnesses)
- The lack of personal interaction
- A possible change in style when answering questions or elaborating on a point made
- Understanding language on the virtual platform and not by personal interaction
- Dealing with the language skills of non English speakers who may vary their diction in the virtual environment
- Understanding the examination or cross examination without appearing unnecessarily obstructive
- Not unnecessarily prolonging maters when the arbitration is time sensitive yet still being able to convey your opinion
Importantly, an expert’s overriding duty is to the tribunal. Fundamentally if an expert does not think that he has satisfied this by any of the reasons discussed, the expert has a duty to disclose the same.
Adapt or Die?
In conclusion, yes, the challenge of virtual hearings have been placed on to experts and we have had to adapt. However, was this a complete surprise?
The intent was always introducing technology into the court system by giving it the necessary time to adjust and iron out any teething problems.
The process happened much quicker than planned and we have adapted. The previous use of virtual hearings was perhaps inadequate. The fast tracking of the virtual hearing has come with some challenges but cannot be wholly unexpected.
And should you need an expert who is now completely comfortable with travel, lockdowns, technology and online interaction, get in touch today!