If two parties can’t agree on whether or not to hold an in-person deposition, it’s best not to use “looking to delay” as the reason.
That motive won’t fly with Hon. Helen E. Freedman (Ret.), JAMS, volunteer mediator at the Appellate Division, First Department, and the United States District Court for the Southern District of New York.
Judge Freedman acknowledged that it’s a relatively new excuse she’s heard during the pandemic on the CLE webinar “Virtual Arbitrations Are Here To Stay: What You Need To Know.”
The same goes for concerns about learning new technology or people who want an in-person deposition just to see the bright lights of New York City.
Explanations, not excuses
Freedman said that at the very beginning of the pandemic most arbitrators were “pretty negative” about the idea of virtual arbitrations and wanted to wait.
By the summer/fall, everyone assumed that arbitrations would be virtual. Now, she sees arbitrators wanting to return to in-person arbitrations, if possible.
She agrees “as long as you agree that if circumstances mandate, we can do it virtually.” “They just about always do,” said Freedman. She cautions arbitrators who wish to travel that New York City is not the same in its current state.
It is more difficult when one side wants an in-person deposition or arbitration and the other does not.
Under JAMS Rule 22, the arbitrator can make the ultimate decision. Freedman will first look into the reasons why one party is not interested. “If it’s just plain delay, that’s not a good reason,” said Freedman. “[Lawyers] never used to. You never know what they are going to come up with now.”
In some cases, it’s the lawyer’s fear of technology or that witnesses or parties will not be able to handle new technology. Freedman urged lawyers not to be shy about needing training or further instruction with new technology.
“We have answers for that,” said Freedman. “We have practice sessions, we have education sessions, we have ways of working it out so the fear of technology is allayed. As time goes on, that’s become less and less of a problem.”
How does a virtual arbitration work?
A virtual arbitration begins with the understanding that it is a consensual process, said Michael C. Rakower (Rakower Law). The actual process within arbitration is more flexible than within a courtroom proceeding. Counsel have to get together and figure out how they want to organize the proceeding and confer with the arbitrator about it.
There are certain standards that parties have come to expect in a virtual arbitration. Typically, Rakower explained, it’s conducted through a videoconference and, more often than not, parties will make use of the videoconference and a second software application system to enter exhibits and display them on the screen, such as Curio or AgileLaw. “You need to get familiar with those systems in advance, particularly the exhibits application,” said Rakower.
Freedman prefers hard copies for exhibits whenever possible. Counsel will send the most important exhibits or the exhibits that both parties have agreed on. She has become more acclimated to viewing exhibits online as virtual arbitrations have become more common. She often uses two screens to better manage the arbitration.
Cross-examinations can be difficult, cautioned Freedman, particularly with encrypted data.
With in-person depositions, the stenographer is required to be there. With virtual depositions, the stenographer could work from anywhere, but there needs to be a stipulation to that effect, explained Rakower. “It’s not a hard one to get counsel to agree on, unless somebody is trying to be obstreperous, but it’s a point that needs to be raised so that you dot your i’s and cross your t’s. That’s valid for both depositions and hearings.”
Tech tips for success
Freedman has her smartphone available should counsel need to text her immediately for a question or if someone runs into technical difficulties. “Texting is universal. Early on, exchange cellphone numbers and keep numbers by your side.”
Careful to avoid any cat filters, Rakower maximizes technology by mastering it before any depositions or hearings. He recommends having two screens, especially for the hearing and exhibits, or so that you can email during a hearing if necessary. “It broadens the landscape for you. It’s like having a big desk.”
Keeping your web camera at eye level is a must, said Rakower. Having the camera too high or low can be frustrating if you are talking to other parties for long periods of time. A branded, clean background can keep the focus on the hearing, instead of a cluttered office or bedroom. Rakower admittedly lives in a “busy, loud household” so headphones help him block out outside noise and stay focused.
He recommended having a portable hotspot to use, should his house need additional wifi bandwidth or should he lose power.
When using exhibits software, Rakower recommended uploading files to a private folder so only the lawyer and his or her team can view the exhibits. He puts any document that he might use that day in the folder. As he enters a new exhibit, he can simply move it into the public record. It also saves valuable time uploading documents to the system. “It keeps the process very fluid,” said Rakower.
Freedman ensures that she has a clear schedule of witnesses before each hearing. It’s much easier to corral people via Zoom, than in in-person hearings. “You can control your time and breaks a lot better.”