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May 27, 2021 Practice Points

Hybrid In-Person and Remote Arbitrations in a Post-COVID-19 World

Conducting at least some portions of a final arbitration hearing virtually can be an efficient way to streamline the hearing and save your client costs in the process.

By Ashley C. Brown

As we (hopefully) near the close of the pandemic, at least a couple of questions are on everyone’s collective minds: (1) what does a return to “normalcy” look like, and (2) what, if any, aspects of pandemic life will we carry with us beyond the pandemic? With respect to the second question, a recent AAA arbitration, in which my firm represented the claimants, demonstrates that conducting at least some portions of a final arbitration hearing virtually can be an efficient way to streamline the hearing and save your client costs in the process.

In our arbitration, the arbitrator, attorneys, and most of the parties were all located in Georgia and participated in the hearing in person. Two of the parties, who were based in Texas, participated in the hearing virtually to avoid travelling. The in-person participants reached agreement, in advance of the final hearing, on appropriate safety protocols—including physical spacing and the wearing of face masks when not speaking. The parties also made every effort to reach stipulations on a multitude of topics in advance of the hearing, which were announced prior to opening statements, to streamline the proceeding as much as possible. The hearing was scheduled for dates when the COVID-19 vaccine was widely available to adults in Georgia and when most of the participants had had at least one, if not two, vaccine doses.

Of the two non-party witnesses—both of whom provided expert testimony—one testified virtually and the other in person. The virtual expert’s testimony was pre-recorded sufficiently in advance of the final hearing so that the video and transcript were both available prior to the final hearing itself. During the hearing, the video was played to the arbitrator, with regular pauses so that the arbitrator could hear argument on any objections. In a circumstance like this, one option for addressing objections would be to fast-forward through any portions of the recorded testimony on which an objection was sustained. The parties here chose a different option: permitting the objected-to portions of the testimony to be played to the arbitrator, with the understanding that the arbitrator would give that testimony the appropriate weight based on his ruling on the objection. The flexibility of arbitration—which, of course, doesn’t necessarily follow the same rules of evidence as would a court proceeding—made this a seamless process.

Pre-recording the expert’s testimony meant that our clients did not incur any unnecessary costs that would have been incurred had the expert arrived at an appointed time, only to find that she had to wait around before she could testify. And the predetermined length of the recorded testimony also made it possible to provide a more precise time for the second expert, who testified next, to arrive at the hearing for his in-person testimony. This again saved our clients some of the fees and expenses that they otherwise would have incurred had the second expert had to wait, for some period, before he could testify. The court reporter was also able to arrive later because the pre-recorded testimony had already been transcribed.

The case was tried in two briskly paced days, with the participants staying late both days to achieve that result. The parties also stipulated that closing arguments would be conducted separately from the hearing itself after the parties had the opportunity to receive and review the hearing transcripts. This allowed the arbitrator, as well as the attorneys, to proceed with closing arguments at a time when it would be most beneficial to everyone involved: after they had had the chance to digest two full days of testimony and consider the arguments made by opposing counsel.            

This type of hybrid in-person and virtual hearing is not workable for everyone. It requires, for example, a cooperative relationship between opposing counsel; a patient and flexible arbitrator; creative scheduling; and effective use of available technology. But even in a post-COVID world, where health and safety concerns are not the driving force for making these types of accommodations, our arbitration experience shows that it is possible to have the best of both worlds: an in-person proceeding for those who prefer it and a virtual proceeding for those who, for one reason or another, are either unable or unwilling to attend the hearing in person.

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Ashley C. Brown

Caplan Cobb

Ashley C. Brown is an associate with Caplan Cobb in Atlanta, Georgia.

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