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Virtual cross-examinations are feasible and should be allowed by arbitrators notwithstanding the generic objections made against them.
Even before the COVID-19 pandemic, it was common in arbitration proceedings to have procedural or jurisdiction hearings by tele-conference or video-conference. Virtual cross-examinations were usually restricted to examining witnesses living in remote locations who found it difficult or impossible to be physically present.
However, in the last few months, with parties and counsel confined to their homes, virtual hearings have become the rage, a situation none us could have conceived or been prepared for five months ago.
Most of the fear around virtual hearings seems to stem from unfamiliarity with the forum. 'It’s new, it’s scary! What if the internet goes? How will we deal with thousands of documents on the record? How will we confront witnesses with documents?'
Cross- examination is that stage of a proceeding that poses the biggest challenge to virtual hearings. So much so that many arbitrators in domestic arbitrations deny virtual cross-examinations without obtaining the consent of all parties. Consent is often withheld on apprehensions that the witness may be secretly coached or may look at his/her cell phone for answers or prompts. It is also argued that it is difficult to observe witnesses’ facial expressions and counsel cannot capture the ‘look and feel’ of the witness on a screen.
Many arbitrations have hit a roadblock at the stage of cross-examination in the ongoing pandemic. By the Supreme Court’s order in May, the timelines prescribed under Section 29A of the Arbitration Act for completion of arbitration proceedings have been effectively extended on account of the COVID-19 lockdown. While this was a welcome and necessary step, are objections to a virtual cross examination valid enough to justify an extension of timelines on these grounds?
My team completed a virtual Singapore International Arbitration Centre (SIAC) arbitration evidentiary hearing in June. The claimants’ witnesses were located in Gurugram and Atlanta, while the respondent’s witnesses were located in Bengaluru and Chennai. The Tribunal was located in Singapore. Had this hearing happened in pre-COVID times, everyone would have flown to Bengaluru, which was the seat of arbitration. Instead, everyone joined from their homes or offices.
I approached the hearing with some trepidation about how it would all pan out, especially since I am not the most technologically savvy person. However, the hearing went off very smoothly and dare I say, made me more open to virtual hearings.
The hearing was conducted on Zoom using the Tribunal’s personal account. The parties engaged a Singapore-based real-time transcription service, whose court reporters and assigned case manager (all located in Singapore) attended the hearing every day. Usually, any transcription service’s personnel would travel for the hearing and supply their own equipment, but now, all participants had to make their own arrangements to view the live transcript.
It was eye opening how relatively easy it is to make necessary arrangements. All that is required is for each participant to log into the live transcription on a separate device from the one he/she is using for the hearing. Thus, ensuring a stable internet connection and an additional device/screen to view the real-time transcription is all that it took to be “technology ready” for the hearing.
At first, we considered putting documents to witnesses by sharing the electronic hearing bundle using the “share screen” feature on Zoom. After a few practice runs, however, we realised this was taking too long. The Tribunal too did not want to use this feature on account of the delay and complications it caused as well as the security challenges it presented. Therefore, instead of using this, counsel and witnesses had their printed sets of the hearing bundle. All witnesses were made familiar with the labelling of the bundles so that they could easily access documents by reference to exhibit numbers and page numbers.
Despite several participants attending the hearing, only videos of speaking participants were allowed to be on to ensure that there were no distractions. Additionally, where any witness had a representative with him in the same room, the Tribunal ensured that the representative had logged in separately and that the representative’s video was on for the entire duration of the cross-examination. An unintended advantage of this technology was that while objections from opposing counsel during an in-person hearing can cause unpleasant interruptions, in our hearing, since my camera was off while the respondent’s counsel was conducting his cross-examination, if I suddenly turned on my camera to intervene, the arbitrator anticipated the objection and addressed it on his own. This also meant that no time was unnecessarily wasted.
Active participants had to be very mindful of not speaking over each other, which would have led to cacophony and made life very difficult for the court reporters. This was also challenging given the slight delay in transmission of the audio. While bantering with witnesses, it is sometimes difficult to refrain from interrupting them and politely wait till they complete their long, meandering (and in your opinion, completely irrelevant) answers. But it is good practice to not interrupt and a virtual hearing will ensure you learn this faster.
I also became mindful of putting my mic on mute after asking my question. This was not only to ensure that there was no disturbance, but also because even hushed conversation with my team mates was picked up by the microphone, something we realised a little late in the game. It definitely takes a while getting used to putting your mic on mute every time and requires you to be alert. If there was a hashtag for this hearing, I would say it was #PleaseMuteYourself.
While the main argument against virtual cross-examinations is that you can’t observe facial expressions of witnesses, my experience was different. In fact, in some ways, the witness is more in focus than if he was in the same room. Zooming in magnifies a person’s body language and facial expressions starkly and in these days of high definition images, every expression is far more conspicuous. Staring at the witness on your computer screen for hours while he answers your questions certainly gives you a sense of his “look and feel”.
I could certainly sense the witnesses’ expressions and their discomfort or smugness and believe the opposing counsel would have also felt this. Not just witnesses, even us counsel have to be careful of the camera. My team member, who had logged in from Gurugram, texted me furiously to stop raising my eyebrows every time I got excited with the witness’ answers - my facial expressions, unbeknown to me, were too obvious.
One certainly has to be more attentive than one may be in a physical cross-examination to ensure the witness is (1) not being aided or prompted in any way; (2) alone or if he/she is with a representative, then that representative has his or her camera on; and (3) not misusing the second device meant to view the real-time transcription. With the camera focused on the witness’ face, we were able to observe every expression, which helped alleviate these concerns considerably.
At times, the Tribunal assuaged the counsel's apprehensions by requesting the witness to move his camera around the room to give a 360 degree view. The witness could also suddenly be asked to show the device from which he was reading the live transcript. Given virtual hearings can be video recorded, parties have access to a more detailed account than an in-person hearing, and one which can be revisited if there is fear of foul play. I believe objections on the basis of a witness being able to misuse the fact that he is alone are overstated.
While the pandemic persists, we all have to embrace and adapt to these new circumstances. In fact, as counsel, it is our duty to ensure that justice is not denied and that arbitrations are not stopped midway on technical objections to virtual cross examinations. If counsel and witnesses have access to a stable internet connection, I believe virtual cross-examinations are feasible and should be allowed by arbitrators notwithstanding the generic objections made against them. I would go a step ahead and say that given the convenience, economy and efficiency of virtual hearings, I believe they are here to stay even after the lockdowns and the pandemic are distant memories.
Ila Kapoor is a Partner at the Dispute Resolution of Shardul Amarchand Mangaldas. The author would like to thank Juhi Gupta for her assistance in drafting this article.
Disclaimer: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. The views in this article are the personal views of the author.