Zoom Arbitrations: The Good, the Bad, and the Leveling Effect
Kayla Higgins | December 22, 2020
With Zoom hearings replacing many in-court or in-person hearings during the COVID-19 pandemic — including arbitrations, administrative hearings, voir dire, and more—these virtual hearings have come with both advantages and drawbacks. There are obvious advantages besides limiting the risk of virus transmission, including cutting down on travel costs and travel time for witnesses and experts. But Zoom also has many drawbacks in the realm of legal advocacy. While many lawyers can stumble their way through a courtroom hearing, Zoom places a premium on expertise and preparedness.
The Bad: Speed-Lawyering, and Missed Non-Verbal Cues
Zoom makes everything in a hearing go a little faster, which highlights the need for aggressive representation and lawyers who can think quickly on their feet. In an in-person hearing, if a judge or arbitrator misses an objection or makes a mistake, a lawyer can stand up and grind proceedings to a halt. In Zoom, however, objections are harder to make and need to be made with confidence. Attorneys must pay close attention to the proceedings so they can object or speak up quickly when needed. It is also important for attorneys to object loudly and forcibly in order to make sure the microphone picks up the sound.
The remote quality of Zoom testimony and lack of non-verbal cues from witnesses also makes it much more difficult to assess witness credibility, and makes it harder for strong witnesses to truly shine. Most of the time on Zoom you can only see someone from the neck up and so you miss certain cues, such as what the witness is doing with their hands. In addition, the lack of eye contact on Zoom – given the placement of cameras, eye-contact is nearly impossible – as well as the overall diminished effect of body language can make it harder to know when to apply necessary pressure during a cross-examination. It can also be hard to know what a witness is looking at and what is going on off-camera. A witness who seems to be looking at the camera may actually be reading an email from their attorney telling them how to answer a particular question. Some of these drawbacks to the Zoom format are hard to fix, but an experienced attorney can pick up on subtle cues and respond accordingly.
The Leveling Effect
That said, the biggest impact of Zoom tends to be a leveling of the playing field for both sides. While a strong witness might not shine as brightly over Zoom, that could be helpful when a strong defense requires downplaying drama. For example, when a plaintiff’s case naturally features high-drama and emotional intensity (such as in a product liability case with a sympathetic plaintiff), the diminished intensity of Zoom allows the defense to focus the factfinder on the more abstract matters of causation and legal liability.
The Good: A Wider Lens, and Punchy Demonstrative Exhibits
Another advantage is that Zoom allows for the opportunity to see all parties’ facial expressions at once, while during an in-person hearing it would typically only be possible to be looking at one person’s face at one time. For example, you can keep an eye on how the arbitrator is reacting to the testimony of a witness while you are doing your direct or cross-examination.
Zoom also makes some parts of trial advocacy run smoother—if you are sufficiently prepared. For example, impeachment and cross-examination can be made much more impactful in a Zoom setting if you have pre-prepared video clips from videotaped depositions to play right after a witness makes a statement that doesn’t square with what they said in a deposition. But those moments can also fall flat if those video clips are not properly primed or cross-referenced.
There are also many other ways to improve the ease of communication over Zoom that require diligent preparation. For example, it is important for attorneys and witnesses to position their computers in a place with proper lighting so that their faces are easily visible, and to be thoughtful about computer placement to make sure that whatever is behind the speaker is not too distracting. It is also important for attorneys to modify their name when they enter a Zoom call to reflect both their full name and which party they represent in order to avoid confusing the arbitrator or fact-finder.
Zoom hearings may present new challenges, but attorneys thrive on challenges. And the best attorneys can turn Zoom’s limitations into advantages. With proper preparation and expertise, the right attorneys can make virtual hearings more efficient, effective, and successful for their clients.
As always, should you have any questions about this article or need further information, please do not hesitate to contact Corr Cronin attorney Kayla Higgins.