On demand 1h 17s Basic

Virtual Arbitration: Advocating for Your Client and Gaining the Upper Hand

4.8 out of 5 Excellent(8 reviews)
Start your free 7-day trial
* Claim credit(s) for one free course during your 7-day trial.
View all credits20 approved jurisdictions
Play video

Virtual Arbitration: Advocating for Your Client and Gaining the Upper Hand

The pandemic forced lawyers and clients to use virtual platforms to resolve their legal disputes. Although courts and ADR Provider Organizations are opening their facilities for arbitration proceedings on location; lawyers, their clients, and arbitrators are finding ways to leverage the benefits of a virtual technology into their case presentations. This course will provide lawyers with strategies and tactics to optimize the integration of a virtual platform into their cases so their message is persuasive and cohesive. The course covers the use of technology and the substantive as well as procedural issues that must be covered.

Transcript

- Hello, my name is Deborah Masucci. I am an independent arbitrator and mediator, who also is an adjunct professor at Fordham University's School of Law, where I teach an arbitration practicum preparing 2Ls to compete in arbitration advocacy competitions. The presentation that I deliver today leverages the tactics and tips these students are taught that have led them to success in past competitions and prepare them for their role in the legal profession, advocating for their clients in arbitration proceedings. That is why the presentation is titled Advocating for Your Client and Gaining the Upper Hand. So let's go to the agenda. We will start this program by defining what is a virtual proceeding and why do parties wanna use this type of a platform. Clearly the pandemic forced parties with disputes to experiment with different platforms to resolve their disputes, rather than wait for a time to come together on site. This happened not only in arbitration and mediation proceedings, but it also happened in the court themselves. The experimentation of these parties has led to more lasting use of virtual platforms for entire proceedings or pieces of proceedings. We will then discuss procedural issues that must be considered to ensure that any decision is durable and not subject to attack. Next, we'll talk about how to optimize technology and the equipment you will need. The final part of this first part of the agenda, we'll discuss process considerations, procedural process considerations. We will then go on in the next part to discuss the arbitration process itself and how to deliver your case while keeping the attention of the arbitrators that they can give you the relief you seek. What is the goal of the opening presentation? How do you prepare your witness and showcase the witness presentation? How are documents used and stored? And what should be included in the closing statement? Finally, I will prepare or have prepared closing remarks that will provide you with resources that you can use in the future. What is a virtual platform? There are three forms that a virtual platform can take. The most common form is leveraging technologies like Zoom, Team Viewer, and GoToMeeting. These are just a few options. However, you should discuss the optimal platform with the ADR provider administering your arbitration or the arbitrators themselves before deciding which platform to use. They have a lot of experience and knowledge about the best platforms. Keep in mind, some of the virtual platforms that parties have used are best suited for meetings, not necessarily arbitration hearings themselves. Two other virtual platforms that were historically used are the telephone and document proceedings, where there are no live hearings, but the arbitrator decides the case based on the documents presented by the parties. This presentation will focus on platforms where the parties, arbitrators and witnesses are seen on screens, such as Zoom. Why virtual platforms? Well, there are several important reasons to use virtual platforms. The first and the easiest to identify is the ease of scheduling the hearing. When determining the date of a hearing, you don't have to worry about travel schedules or tight commuting time. The parties, lawyers, witnesses, and arbitrators can be brought into the proceeding from different locations. As travel restrictions imposed because of the pandemic are lifted, attorneys and clients may want to be in the same room sitting side by side, but coordination of schedules, of travel are still limited, because of this particular efficiency, not having people travel. The cost of an arbitration proceeding has gone down. An ADR provider might still charge a fee for their preferred platform, but that cost is significantly smaller than paying the cost of travel, lodging and meals, that could be incurred when everyone, including the arbitrators are required to congregate onsite in one location. How can the technology be used? There are a myriad of combinations. The entire proceeding can be held virtually, or just parts of the hearing. The parties can decide that certain witnesses appear virtually while others should proceed physically, with the arbitrators on site. If a witness's credibility is at issue, counsel might decide to have a witness physically present with the arbitrator so that credibility can be assessed. On the other hand, expert witnesses, or fact witnesses, whether a testimony may be perfunctory, they may appear virtually. In addition, the witness's ability to travel may dictate the form of testimony, especially if they are a non-party. What process do you use? Recently there has been a preference for virtual proceedings in arbitration or mediation, but that I will discuss further on the next slides. Are virtual hearings here to stay? As I said, there's been a lot of experimentation in the courts as well as for ADR proceedings. The chief judge of the New York State Courts has advised lawyers practicing and New York courts that aspects of virtual proceedings will continue. Courts will continue to entertain preliminary motions or administrative hearings virtually. Pilot programs will continue to be established to determine the best way forward on a subject matter by subject matter basis. The AAA reported that now there's more openness to use virtual platforms for entire mediation proceedings, but that parties were moving back to congregating in one location for arbitration proceedings. Preferences might change based on experience and council will continue to experiment with all platforms available. The ADR provider rules provide for arbitral discretion in determining whether a virtual platform will be used. I've identified here the most frequent ADR providers that are used by parties. They are JAMS the AAA and CPR. All of these organizations have specific provisions in their rules contemplating that discretion. In addition, ADR providers have developed protocols and procedures for using virtual technologies and have alerted counsel and arbitrators to the importance of cyber protection and security protocols when virtual proceedings are utilized. These aspects should be considered during the management conference that is held prior to the hearing in chief to develop the blueprint for the arbitration proceedings. These management conferences are typically held by the arbitrators to organize this proceedings and expectations, including deadlines for going forward. Have there been challenges to virtual arbitrations? There have been very, very few cases reported where parties have challenged arbitrator's authority regarding aspects of virtual proceedings. The decisions are consistent with Arbitral Authority for arbitration hearings held with everyone on site. The first case I have here is RMR Elevator Company. In this case, the court interpreted the AAA Rule 33 as to giving the arbitrators the discretion to order virtual proceedings. In this case, the court affirmed the wide latitude given to arbitrators to conduct proceedings with a view towards expediting resolution. In two other cases, the court interpreted arbitral authority or really the lack thereof to enforce subpoenas over non-parties to appear virtually and deliver documents pre-hearing. This decision was based on the Federal Arbitration Act. That Act was enacted in 1925. Section 7 of the Act authorizes district courts to compel the attendance of such person or persons before said arbitrator in the same manner provided by law for securing the attendance of witnesses in the courts of the United States. In managed care, the court quoted and explained that it's a fundamental cannon of statutory construction. That words generally should be interpreted as taking their ordinary meaning at the time Congress enacted the statute. The key question, said the court, is what attendance and before were understood to mean in 1925, when the Federal Arbitration Act was enacted. Referring to dictionaries for that time, the court explained that a court order compelling the attendance of a witness before the arbitrator meant compelling the witness to be in the physical presence of the arbitrator. In 1925 said the court, attendance meant the act of attending and attend meant be present at. Before was defined as in the presence of, while presence meant place where person is and present meant being in the place in question. Section 7 concluded the court does not authorize district courts to compel witnesses to appear in locations outside of the physical presence of the arbitrator. So the court may not enforce an arbitral summons for a witness to appear via a video conference. Similarly, Section 7 of the Federal Arbitration Act does not allow pre-hearing delivery of documents by a non-party. The documents can only be provided when the parties congregate on site at a hearing. Of course, the non-party may voluntarily deliver documents in advance of the hearing. The importance of this section is that very often the Federal Arbitration Act is used to support certain procedural issues related to the arbitration proceeding. So how the court interprets the Federal Arbitration Act and its relevant provisions will have an impact on the arbitration proceeding. In these two cases, the court basically viewed the arbitration proceeding in the same way, regardless of whether it was held virtually or with the parties on site, physically on site. Well, what about the international experience? We know that there's substantial travel internationally, and that a lot of cases in the international, meaning arbitration cases in the international context take a long time to resolve, is virtual really used? While what we found that is that through the use of video conference and virtual hearings, they have not historically been used in and any international context. A cursory glance at the arbitration rules and procedures for international ADR providers and institutions reveal that their rules do in some form or another permit the use of video conferencing and virtual hearings. I've put down here that the ICC, the London Court of International Arbitration, the Singapore International Arbitration Centre and the Hong Kong International Arbitration Centre rules, all grant tribunal authority over the conduct of the hearing. So in effect those arbitration providers or arbitration rules contemplate that they could use a virtual technology. Similar provisions are included in the Stockholm Chamber of Commerce Arbitration Rules, The ICDR, which is the international arm of the American Arbitration Association and the Uncitral Rules. In fact, an argument can be made that virtual proceedings are better positioned in the international context since arbitrators, parties and counsel are required to convene in one location and must deal with international travel time differences and just sleeping adjustments. There's also a limited number of arbitrators who do these types of cases, so the pool is limited to choose from. In a different context, anecdotally, virtual technologies have been effectively used internationally for education purposes. Therefore international parties are better equipped to use virtual platforms for arbitration proceedings. There is a twist however, in the international context, ICA recently issued a report exploring whether there is a right to a physical onsite hearing in international arbitration. The report covers 82 of the 150 New York Convention jurisdictions. The report concludes that the right to a physical hearing is inferred, but the parties and arbitrators should look to the local rules for judicial proceedings for guidance. The report concludes that party autonomy trumps arbitral discretion on the topic, and that an arbitral tribunal that orders a virtual hearing over the objections of a party may put a subsequent award at risk. Counsel and arbitrators should monitor case law in this area since it will be evolving. In 2021, the court and Eaton Partners did not find that the arbitrator was guilty of misconduct, where the arbitrator did not grant a postponement of a hearing, but instead her testimony virtually when a witness was not available to appear on site at a hearing. The court found the appearance by video was not a deprivation of fundamental fair hearing. Earlier I spoke about details that must be considered in the pre-hearing management conference. There are specific issues applicable solely to virtual proceedings that should be considered, decided and memorialized in an order subsequent to pre-hearing management conference. The management order should detail whether the parties agreed to a virtual hearing or that the arbitrators exercise their discretion under the rules. The parties should state that the agreed to location of the hearing. Keep in mind, the hearing may convert back to an onsite hearing, or there may be a procedural issue that may be dictated by local law in the jurisdiction. So having that certainty decided early on is important so that the questions don't arise later on. Parties should state and agree to procedural and substantive law to be followed because each controls judicial support of the proceeding and grounds to vacate. This is in the domestic arbitration context. It's important because certain states have wider provisions to support arbitration while others refer to the Federal Arbitration Act. The management conference should include a discussion of who pays for the technology, what is the official record as well as confidentiality and security issues. A recording of a virtual hearing could be the official record, or it could be used by a stenographer to verify the official transcript. In last slide, I referenced that the management conference should record whether the virtual hearing will be held based on the agreement of the parties or pursuant to an arbitral order. If a party objects to proceeding virtually, determine what is the reason for the objection. Think about whether that reason is reasonable and confirm whether arbitrators have the authority or discretion to proceed virtually. Thinking through and deciding these issues can be important should there be a motion to vacate the award subsequently. In this part of the course, I'm going to discuss technology issues that you should consider. This pie chart explains how distracted we human beings are. The chart was created when virtual proceedings were first being used during the pandemic of 2019 to '20. It was really created in the context of meetings, but it has application to virtual proceedings. In fact, you can take from it an understanding of what first comes to mind when you're using a virtual platform. Remember to a large extent when virtual hearings were started, people were working from home and they didn't have the infrastructure at home to support using technology professionally. Remember back then you felt very isolated because you weren't seeing anybody. Suddenly through the use of technology, parties were seeing each other for the first time in a long time. As you can see, there was relief at seeing another person. There are though, other attention span detractors such as looking at your own appearance, how you look and your colleagues, as well as coworkers homes, maybe you can get decorating tips about what you wanna use in your own home while you are looking at somebody else's home. Loss of attention was also caused by pets and kids. A small fraction of the attention was really focused on the content of the meeting. In fact, look at this, 2% of the attention was really focused on the meeting itself. So it's important to know what's distracting you when you are looking or using a virtual platform. It could be whether or not you look good and whether your hair looks good and you need to go to the hairdresser and other aspects. So keep that in mind. In order to address all of these distractions and maintain attention, you need to be comfortable with the technology and learn how to use it to your advantage. Barriers to using technology arose immediately. The common barriers were fear of the unknown and ageism. Well, the technology is unknown no more. And we have found that more senior people are very adaptable to using technology. My personal experience is that many junior people were more hesitant to converting to the new platform. So how do you deal with these issues? First, remember who your audience is. Your audience is the arbitrator, and to a lesser but just as important extent, your client. Your comfort with the technology and your ability to problem solve comes through as confidence and assures everyone else that the technology will work. Second, how do you bolster the credibility of your witness? Remember that your witness' credibility is judged by the internal coherence of what he or she says, how the witness' testimony matches with what is said by other witnesses and how the witness' testimony meshes with the documents. If you can focus on these issues, then the arbitrator will easily assess the witness' motives and credibility objectively. Third, preparing the witness is the next important factor. Make sure the witness is comfortable with the technology. The old adage of practice makes perfect is at play. Make sure the witness is alone in a room and does not have notes in front of him or her. The arbitrator may ask the witness to show a 360 degree picture of the room to ensure no one else is present coaching the witness. There have been many problems experienced using virtual hearings. Those problems can be avoided by having a technical assistant, council cannot do both jobs. So you're better off having somebody whose focus is on the technology side. An important tool is to allow parties and arbitrators to meet separately in between sessions in a breakout room. The technical assistant can ensure that the right people are placed in the correct room. This ensures that confidences are preserved and people are not put in the wrong room. Think about it, it would be horrible if the arbitrators were talking amongst themselves about the case and all of a sudden, one of the parties ends up in that room. So you need to make sure the right people are in the right room and there's no breach of that confidence. The second type of technology issue is the sharing tool that is available on Zoom and other platforms. This allows everybody to see the same document at the same time. If you're using that technology, make sure that the exhibits shared can be clearly seen by everyone and that the type is not too small. If this is not possible, have a backup plan such as a shared drive accessible to everyone and documents clearly labeled so that people can pull 'em out out when they need it, and they can view the documents in front of them. Everybody might need a separate tablet for that purpose. Finally, there is this so-called screen exhaustion where everybody is just spending so much time looking at that screen, it's called screen exhaustion. Make sure that that doesn't occur by limiting the hearing time per day and taking frequent breaks. So everyone can tell war stories about glitches with technology, but you can avoid all those glitches through understanding and practice. Make sure the platform you use meets your needs. Your law firm may have security protocols that limit the use of certain platforms. Also make sure you have a strong WiFi power connection and secure extensions if needed. Ensure that you have backup technology available. Telephones are still a very useful tool. So make sure you can use the telephone and it's available. Understand the ground rules of each of the ADR providers by reviewing their protocols. And then finally prepare by testing the platform and understanding its capabilities. Another adage is that the early bird catches the worm. It's important that you log onto the technology early to make sure it works. Here I've listed different types of equipment that's recommended that should consider. To a large extent, the need for equipment depends on the number of participants. You must be heard and seen to be persuasive. Make sure you have a reliable internet and a strong WiFi. The room itself you use should have good lighting. If not, you may need a portable light to attach to your monitor. Some laptops do not have cameras, make sure yours does and that the quality is high. You may need headphones to ensure you hear everything said. If there are many participants and documents, you may need separate tablets and monitors to access important evidence. This is really important. You really need to treat the virtual hearing as if you are in person. If you do that, the chart of distractions I showed you earlier will be irrelevant. You can take precautions to minimize distractions, including use a close off room where no one is wandering around. Second, make sure your children and pets are occupied elsewhere, that they're not scratching at doors, meaning the pets are not scratching at doors. Make sure you're not interrupted by putting any cell phone on mute and make sure everyone else that's in your vicinity knows you have important business and you are not to be interrupted. During the proceeding you might stay on mute while other people are speaking. These are important things to remember. So how do you reduce confusion as the proceeding goes forward? Remember the case management order I referred to earlier, this is a blueprint for how the arbitration will proceed and includes important protocols and requirements for the use of technology. If there are multiple participants, it's important to ensure that the arbitrators know who you are and who are your witness is. This is where a technical assistant can be most helpful. Each participant should have their name and role clearly displayed on the platform. The technical assistant should also have an attendance sheet with a name and alternative contact information for each participant. This is not unlike an arbitration proceeding where a stenographer comes in, and this stenographer gets a listing of who's present at the arbitration hearing with their name and contact information. I know that many of you may be used to the private chat function on your Zoom monitor, as well as the recording button. Both the chat function and the recording function should be disabled, as well as screenshots, you shouldn't be able to take pictures of the screens, that should be prohibited. Remember what I said about preparation. Sign in 15 minutes early to ensure that your access to the system works and you can be seen and heard. Schedule ahead of time to have backup witnesses called should a scheduled witness have a technology glitch, or maybe person gets sick. If you have a backup witness available, then everything can proceed smoothly and you can find a time for that person to come in. If there are multiple days of hearing, the attorney should meet at the end of each day, either alone or with the arbitrator to plan what will happen the next day. Appearance is very important. This slide and the next will provide tips on your appearance at a virtual arbitration. First, let's talk about some technical areas. There are two screen views on a Zoom platform, the gallery and speaker view. You might want to use the gallery view when there's a general discussion of all participants. The speaker view is optimal when a witness is testifying or when you're delivering your open or closing argument so that everyone focuses on the witness or you. The camera itself on a laptop is normally built on the top middle of the laptop. If your application has a gallery view where all participants are visible at once, resize your window so the participants are stacked vertically and center the window under your camera. If you look at them in the center of your screen under the camera, the arbitrator and others will feel you're looking directly at them. You have the ability to show your background live or to use a virtual background of faded background. If you decide to use your background live, make sure there's no distractions. Maybe the background could be a bookcase or a wall, but try to eliminate pictures. If you're working from home, avoid beds or pictures that can be distracting. Arbitrators may restrict your ability to use a virtual or a faded background. They'll wanna know no one else is in the room with you. A question that's often asked is whether you, as an advocate should sit or stand. Practically speaking, you should always sit. If that doesn't restrict your ability to use your hands and your face, or make other motions. Make sure there's a clean desk in front of you that is clear of unnecessary items. Finally, you should dress for success with professional attire. Dark colors look better on the screen. It is a known fact that you can be more persuasive if the decision maker likes you. So you should strive for a pleasing likable appearance. Think about your favorite news broadcaster. How does he or she appear? Does he or she convey confidence and competence? If you have co-counsel and you're not in the same room, consider a separate mode of communication such as text and make sure you consider it in a way that is not distracting. Don't use the chat function on Zoom, I can't reinforce that more. When the hearing begins and you're called upon, state your name before speaking so other participants can easily identify you as the speaker. Make sure you don't look like you're reading from notes, especially when presenting your opening and closing statements. Wait, and at least an extra beat in between your points to make sure you do not interrupt an arbitrator trying to get in a question. Generally, arbitrators are taught that they should not ask questions while a party is presenting. However, oftentimes an arbitrator might find that he or she needs clarification and will jump in. So you should be prepared for it. When that happens, you may want to specifically ask if the arbitrators have any questions for you before you move on to another point. So even if the arbitrator doesn't interrupt, you might see them visually furrow their forehead, so you might ask them if they have a question. If an arbitrator's question was talking over you, you may have missed the first part of it. So don't hesitate to repeat the question you believe the arbitrator asked and wait a bit for the arbitrator to give any clarification. Speak slowly and measured. Minimize your movement and facial expressions when you're not talking. Remember you're right in front of the screen, not way back at council table and the arbitrators can see your every groans or head shake. You are being watched even when you're not speaking. So be careful not to create a distraction and stay engaged. If you wear glasses, be aware that there may be reflections on them. To avoid that, adjust your head angle by dropping your chin or turning slightly, shift your lighting source. If possible, raising lighting source will help. Onto something else. Consider moving your chair back a little when you're not speaking, and then moving it a bit forward when you are speaking. Remember you're always on and everything you do on screen can be seen including taking notes or drinking a soda. Do not make distracting movements or facial expressions while the other lawyer is arguing. Do not swivel your chair around or rock back and forward. Listening skills are particularly important during arbitration. Make sure you are listening to the arbitrators and the other side. Something they say might cue you to a point you need to make to reinforce your case or you need to clarify. This can be done by looking for opportunities to pivot from your prepared presentation, to respond to what you hear or see. If opposing counsel makes a point to which you want to respond, or if an arbitrator has posed a question, either to you or your adversary, that provides an opportunity to make a point that doesn't particularly fit in anywhere else in what you rehearsed or doesn't fit into your screen sharing plan. Ask the arbitrator for some time. Pause, look, the arbitrator's square in the camera's eye, make your point in the most impactful manner as is appropriate under the circumstances. Now we will get to the meat and potatoes of an arbitration. You start with the opening statement, but there are several stages. The opening statement, presentation of direct testimony of a witness, cross examination of witnesses and the closing statement. The opening statement is your first opportunity to talk directly to the arbitrators and start to persuade them to your arguments. You need to have a compelling story to tell, and you use the opening statement to summarize that compelling story. Your opening statement should not be more than seven to 10 minutes. Use headlines to bring the story to life. Then tell the arbitrators what you will prove and how you will prove it through witness testimony and documents. Explain to the arbitrators that they'll be hearing two versions of the story, what your client did and what the other side did. Tell your opponent's case from the third person and why he's responsible. Then tell your client's version from the first person. Make sure at the end that you tell the arbitrators what you want them to do for you. For example, if you're the claimant, tell them you want money, how much and why. If you are the respondent, tell them you want a dismissal of all the claims. What you say in the opening statement will be repeated in the closing statement, where you will remind the arbitrators what you proved. In order to emphasize points, you may refer to documents that will be presented as exhibits during the hearing, and you should present them on a shared screen. Depending on the case, you may create a PowerPoint of a timeline for the opening statement to show the arbitrators. If you do so, you should secure the agreement of your adversary in advance of the hearing so that you can use that document created just for the opening statement. Witness testimony is critical. It is through witnesses that you tell your story and you prove your case. The first question that you need to answer is whether you need to subpoena a witness. The named claimant and respondent are required to appear at the hearing. So no subpoena is required to ensure their appearance. Individuals under the control of a party, such as an employee of a corporation, usually will appear pursuant to an agreement of the parties. Non-parties no longer under the control of a party are witnesses that you may have to subpoena to ensure their appearance. You need to look to local law or the Federal Arbitration Act to determine the scope of a subpoena, its enforceability and who signs it. For example, if the hearing operates under the CPLR of New York State, the subpoena may be signed by counsel. If the arbitration is proceeding under the Federal Arbitration Act, there are geographic limitations for the reach of the subpoena. In this instance, the arbitrators might consider conducting a hearing in proximity to the location of the witness. This would be an onsite and not a virtual hearing. In other instances, if the arbitrator is the person who must sign the subpoena, they may require that you have a showing of proof as to the necessity of that individual to appear at the hearing. You need to show the arbitrator what that person is going to speak to and the relevancy to your case. There are considerations such as who will pay the cost of that non-party to appear at the hearing. Often a party who demands that a particular witness appear normally is required to pay for the expense of that appearance. However, the arbitrators can shift that cost to the other side in their arbitration decision. Preparation, again, we keep on going back to preparation, you should prepare the witness thoroughly before the hearing, both in terms of the operation of the technology and the content of the witness's testimony. Practice makes perfect. If the hearing is held virtually, the arbitration panel may ask the witness to provide a 360 degree view of the room where the witness is located to ensure that no one else is in the room. Keep in mind only parties and counsel are permitted to attend the entire proceeding. Expert witnesses and non parties are to sign off after their testimony is presented. There are situations however, where an expert witness may be permitted to sit in when the expert witness of the other side testifies. This occurs where council persuades the arbitrators that he or she needs the expert's attendance to understand the testimony and frame cross examination. This can be eliminated if the testimony or report of the expert is exchanged prior to the arbitration hearing. Document presentation, all ADR provider rules require that the parties exchange prior to the hearing documents that will be used as exhibits during the hearing. The parties themselves are asked to develop a joint list of exhibits to ensure that there are no duplicates. They are also asked to agree to the admission of the exhibits before the hearing. Doing so reduces objections and the formality of entering exhibits one at a time. A separate binder can include exhibits where a party has objections. The documents all should be numbered for identification, so that there are separate exhibit books, one that would be the shared or agreed to documents, and a second one being the ones that there may be objections. Sitting down, or whether virtually or in person with the other side before the hearing really reduces a lot of that controversy. I previously mentioned using a depository for sharing exhibits. Court reporting companies have an online exhibit management system that is available to the parties. Counsel should work with each other to determine the right system for their case. You could provide arbitrators and witnesses with paper copies of exhibits prior to the hearing, but often time arbitrators don't wanna really deal with the paper. In a virtual hearing impeachment exhibits can be sent to the witness in a sealed envelope in advance of the hearing. So this really occurs if a witness is appearing on more than one day, so that you can prepare and send those documents out. This slide really emphasizes screen sharing and hearing books in a virtual arbitration. When you first enter a remote hearing where you plan to present evidence or demonstratives by shared screen or similar feature, click the shared screen or applicable button to see if the app will allow you to do so. If it does, then you're set and you can wait until it's your turn to present. If you get a message that says something like the host has blocked you from sharing the screen, you'll need to ask the arbitrators for permission to do so. Most arbitrator's technical assistance are ADR providers, likely will be able to provide that authorization with a few key strips. But if the arbitrator's perplexed, you can instruct him how to do so by saying, "With the Zoom application, click the up arrow next to the shared screen button." You might tell them where the shared screen button is. Click allow multiple participants to share. Be sure to be specific in identifying in exhibits or demonstrative aids you are referencing. You might share on the screen only part of an exhibit, but you should make sure the arbitrators and your adversary understands you're only referring to and sharing with the witness, a particular part of the document. For example, you might say, "Madam or Mr. Arbitrator, I am sharing with you page two of exhibit F in your binder, as shared exhibit F, please go to that exhibit. But here it is on the screen for your reference." In this way if there is a question the arbitrators and your adversary knows exactly what document you're looking at, but you're not putting the entire document up. You're just putting the relevant portion that you're speaking to. When you're looking at exhibits, beware of document editing. Words in a clause or contract can be changed by dishonest parties and users must be vigilant of the integrity of the documents. Too many PDF files should be avoided wherever possible. The right balance must be struck between a workable file that does not freeze or takes too long to scroll through and the need to avoid so many separate documents. That time is wasted trying to locate the correct one. Much like hard copy bundles, scan documents can often cut out sections or come out blank or illegible. Care must be taken to ensure that all documents are properly legible and not corrupted. Virtual hearings do not permit documents to be handed up to the tribunal at the hearing. Parties must ensure that all necessary documents are included in the bundle in advance, especially in light of the flurry of last minute exchanges, which are common and sometimes inevitable. Pay attention to data protection, hacking, hearing recording, and Zoom bombing. Make sure that your security settings are properly set. And as I said earlier, make sure you can set up separate breakout rooms for the parties so that they can confer during the arbitration proceeding or immediately before closing argument. Very often, what happens is that the parties need some time after the presentation of the case in chief to collect their thoughts about what should be in the closing argument. They also need that time to determine whether they have other evidence that they wanna submit. So that's a time when a breakout room is used for the parties to prepare. The closing statement is your final opportunity to talk directly to the arbitrators. You need to reinforce and remind them of your compelling story. Repeat the headline you used to bring the story to life. Then tell the arbitrators what you proved, how you proved it through your witness testimony and documents. Remind them of your ask, what you want them to do. Show calculations so that they can understand how it relates to the relief that you're looking for. You might give them alternative calculations so that you really get the most that you're looking for. As in the opening, you may refer to documents that were presented as exhibits during the hearing and present them on a shared screen. Use other demonstrables. You might put up a chart showing your calculation of damages. Again, secure your adversary's agreement to use that demonstrable. Don't be surprised if your adversary might wanna use it after you too. This is the end of your case, be punchy, clear, and keep the attention of the arbitrators. Remember, I said seven to 10 minutes in the beginning, use that in the end. My final remarks, reinforce many of the points made through this presentation. Using a virtual platform requires preparation and practice. Determine the right hardware, prepare and practice with witnesses, remember your audience, determine the right mix of physical, onsite and virtual that makes sense for your case. Know the ADR provider rules and any related law, understand how to optimize the virtual platform. That's what I hope you found out today through this presentation. The handouts that you will receive provide you with links to resources that I referred to during the presentation. Thank you for your time.

Presenter(s)

DM
Deborah Masucci
Attorney
Masucci Dispute Management and Resolution Services

Credit information

Jurisdiction
Credits
Available until
Status
Alabama
    Not Offered
    Alaska
    • 1.0 voluntary
    September 14, 2024 at 11:59PM HST Available
    Arizona
    • 1.0 general
    September 14, 2024 at 11:59PM HST Available
    Arkansas
    • 1.0 general
    September 14, 2024 at 11:59PM HST Approved
    California
    • 1.0 general
    September 14, 2024 at 11:59PM HST Approved
    Colorado
    • 1.0 general
    Unavailable
    Connecticut
    • 1.0 general
    September 14, 2024 at 11:59PM HST Available
    Delaware
      Not Offered
      Florida
      • 1.0 general
      April 30, 3024 at 11:59PM HST Approved
      Georgia
      • 1.0 general
      Unavailable
      Guam
      • 1.0 general
      September 14, 2024 at 11:59PM HST Available
      Hawaii
      • 1.0 general
      September 14, 2024 at 11:59PM HST Approved
      Idaho
        Not Offered
        Illinois
        • 1.0 general
        September 19, 2024 at 11:59PM HST Approved
        Indiana
          Not Offered
          Iowa
            Not Offered
            Kansas
              Not Offered
              Kentucky
              • 1.0 general
              Pending
              Louisiana
              • 1.0 general
              Pending
              Maine
              • 1.0 general
              December 31, 2026 at 11:59PM HST Self-apply
              Minnesota
                Not Offered
                Mississippi
                  Not Offered
                  Missouri
                  • 1.0 general
                  September 14, 2024 at 11:59PM HST Available
                  Montana
                    Not Offered
                    Nebraska
                      Not Offered
                      Nevada
                      • 1.0 general
                      December 31, 2025 at 11:59PM HST Approved
                      New Hampshire
                      • 1.0 general
                      September 14, 2024 at 11:59PM HST Available
                      New Jersey
                      • 1.2 general
                      January 16, 2025 at 11:59PM HST Approved
                      New Mexico
                        Not Offered
                        New York
                        • 1.0 areas of professional practice
                        September 14, 2024 at 11:59PM HST Available
                        North Carolina
                        • 1.0 general
                        Unavailable
                        North Dakota
                        • 1.0 general
                        September 14, 2024 at 11:59PM HST Available
                        Ohio
                        • 1.0 general
                        Unavailable
                        Oklahoma
                          Not Offered
                          Oregon
                          • 1.0 general
                          September 14, 2025 at 11:59PM HST Approved
                          Pennsylvania
                          • 1.0 general
                          Pending
                          Puerto Rico
                            Not Offered
                            Rhode Island
                              Not Offered
                              South Carolina
                                Not Offered
                                Tennessee
                                • 1.0 general
                                Pending
                                Texas
                                • 1.0 general
                                Unavailable
                                Utah
                                  Not Offered
                                  Vermont
                                  • 1.0 general
                                  September 14, 2024 at 11:59PM HST Approved
                                  Virginia
                                    Not Offered
                                    Virgin Islands
                                    • 1.0 general
                                    September 14, 2024 at 11:59PM HST Available
                                    Washington
                                    • 1.0 law & legal
                                    September 14, 2027 at 11:59PM HST Approved
                                    West Virginia
                                      Not Offered
                                      Wisconsin
                                        Not Offered
                                        Wyoming
                                          Not Offered
                                          Credits
                                            Available until
                                            Status
                                            Not Offered
                                            Credits
                                            • 1.0 voluntary
                                            Available until

                                            September 14, 2024 at 11:59PM HST

                                            Status
                                            Available
                                            Credits
                                            • 1.0 general
                                            Available until

                                            September 14, 2024 at 11:59PM HST

                                            Status
                                            Available
                                            Credits
                                            • 1.0 general
                                            Available until

                                            September 14, 2024 at 11:59PM HST

                                            Status
                                            Approved
                                            Credits
                                            • 1.0 general
                                            Available until

                                            September 14, 2024 at 11:59PM HST

                                            Status
                                            Approved
                                            Credits
                                            • 1.0 general
                                            Available until
                                            Status
                                            Unavailable
                                            Credits
                                            • 1.0 general
                                            Available until

                                            September 14, 2024 at 11:59PM HST

                                            Status
                                            Available
                                            Credits
                                              Available until
                                              Status
                                              Not Offered
                                              Credits
                                              • 1.0 general
                                              Available until

                                              April 30, 3024 at 11:59PM HST

                                              Status
                                              Approved
                                              Credits
                                              • 1.0 general
                                              Available until
                                              Status
                                              Unavailable
                                              Credits
                                              • 1.0 general
                                              Available until

                                              September 14, 2024 at 11:59PM HST

                                              Status
                                              Available
                                              Credits
                                              • 1.0 general
                                              Available until

                                              September 14, 2024 at 11:59PM HST

                                              Status
                                              Approved
                                              Credits
                                                Available until
                                                Status
                                                Not Offered
                                                Credits
                                                • 1.0 general
                                                Available until

                                                September 19, 2024 at 11:59PM HST

                                                Status
                                                Approved
                                                Credits
                                                  Available until
                                                  Status
                                                  Not Offered
                                                  Credits
                                                    Available until
                                                    Status
                                                    Not Offered
                                                    Credits
                                                      Available until
                                                      Status
                                                      Not Offered
                                                      Credits
                                                      • 1.0 general
                                                      Available until
                                                      Status
                                                      Pending
                                                      Credits
                                                      • 1.0 general
                                                      Available until
                                                      Status
                                                      Pending
                                                      Credits
                                                      • 1.0 general
                                                      Available until

                                                      December 31, 2026 at 11:59PM HST

                                                      Status
                                                      Self-apply
                                                      Credits
                                                        Available until
                                                        Status
                                                        Not Offered
                                                        Credits
                                                          Available until
                                                          Status
                                                          Not Offered
                                                          Credits
                                                          • 1.0 general
                                                          Available until

                                                          September 14, 2024 at 11:59PM HST

                                                          Status
                                                          Available
                                                          Credits
                                                            Available until
                                                            Status
                                                            Not Offered
                                                            Credits
                                                              Available until
                                                              Status
                                                              Not Offered
                                                              Credits
                                                              • 1.0 general
                                                              Available until

                                                              December 31, 2025 at 11:59PM HST

                                                              Status
                                                              Approved
                                                              Credits
                                                              • 1.0 general
                                                              Available until

                                                              September 14, 2024 at 11:59PM HST

                                                              Status
                                                              Available
                                                              Credits
                                                              • 1.2 general
                                                              Available until

                                                              January 16, 2025 at 11:59PM HST

                                                              Status
                                                              Approved
                                                              Credits
                                                                Available until
                                                                Status
                                                                Not Offered
                                                                Credits
                                                                • 1.0 areas of professional practice
                                                                Available until

                                                                September 14, 2024 at 11:59PM HST

                                                                Status
                                                                Available
                                                                Credits
                                                                • 1.0 general
                                                                Available until
                                                                Status
                                                                Unavailable
                                                                Credits
                                                                • 1.0 general
                                                                Available until

                                                                September 14, 2024 at 11:59PM HST

                                                                Status
                                                                Available
                                                                Credits
                                                                • 1.0 general
                                                                Available until
                                                                Status
                                                                Unavailable
                                                                Credits
                                                                  Available until
                                                                  Status
                                                                  Not Offered
                                                                  Credits
                                                                  • 1.0 general
                                                                  Available until

                                                                  September 14, 2025 at 11:59PM HST

                                                                  Status
                                                                  Approved
                                                                  Credits
                                                                  • 1.0 general
                                                                  Available until
                                                                  Status
                                                                  Pending
                                                                  Credits
                                                                    Available until
                                                                    Status
                                                                    Not Offered
                                                                    Credits
                                                                      Available until
                                                                      Status
                                                                      Not Offered
                                                                      Credits
                                                                        Available until
                                                                        Status
                                                                        Not Offered
                                                                        Credits
                                                                        • 1.0 general
                                                                        Available until
                                                                        Status
                                                                        Pending
                                                                        Credits
                                                                        • 1.0 general
                                                                        Available until
                                                                        Status
                                                                        Unavailable
                                                                        Credits
                                                                          Available until
                                                                          Status
                                                                          Not Offered
                                                                          Credits
                                                                          • 1.0 general
                                                                          Available until

                                                                          September 14, 2024 at 11:59PM HST

                                                                          Status
                                                                          Approved
                                                                          Credits
                                                                            Available until
                                                                            Status
                                                                            Not Offered
                                                                            Credits
                                                                            • 1.0 general
                                                                            Available until

                                                                            September 14, 2024 at 11:59PM HST

                                                                            Status
                                                                            Available
                                                                            Credits
                                                                            • 1.0 law & legal
                                                                            Available until

                                                                            September 14, 2027 at 11:59PM HST

                                                                            Status
                                                                            Approved
                                                                            Credits
                                                                              Available until
                                                                              Status
                                                                              Not Offered
                                                                              Credits
                                                                                Available until
                                                                                Status
                                                                                Not Offered
                                                                                Credits
                                                                                  Available until
                                                                                  Status
                                                                                  Not Offered

                                                                                  Become a Quimbee CLE presenter

                                                                                  Quimbee partners with top attorneys nationwide. We offer course stipends, an in-house production team, and an unparalleled presenter experience. Apply to teach and show us what you've got.

                                                                                  Become a Quimbee CLE presenter image