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Virtual Hearings

Tuesday, March 24, 2026 1:03 PM | Anonymous

What protocols should arbitrators implement to manage virtual witness testimony effectively and maintain the integrity of the record?

What are your thoughts?

Comments

  • Tuesday, March 24, 2026 2:54 PM | Karl Sieg
    NONE.
    As a seasoned arbitrator, I won't do a virtual hearing.
    Body language is essential, and only observable in in-person hearings.
    If the case were easy, it never would have reached the level of arbitration. If it's not worth an in-person hearing to the parties, it shouldn't be ripe for arbitration.
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  • Tuesday, March 24, 2026 3:02 PM | Anonymous
    Witnesses must have their own computer and camera and may not present testimony in a conference room with a shared camera for multiple individuals. Witnesses may not have any documents or devices (i.e., phones) in front of them or behind the camera while testifying. Witnesses may be required to point the camera around the room to confirm a secure setup. The testimony room must be quiet (not a car believe it or not!). If a witness looks distracted like they are looking at a document or phone or receiving information from some source, I will ask about it at the earliest time. I will always examine the witness after I administer the oath to make sure there are no cheat sheets or phones or other persons in the room. As for the record, the parties may have a court reporter. I do not record sessions unless both parties agree and arrange for it.
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  • Tuesday, March 24, 2026 3:05 PM | Robert L. Arrington
    I do virtual hearings frequently. I send the parties a hearing protocol that requires them to arrange for the hearing host to use hearing passcodes, enable waiting and breakout rooms, use "gallery" or "speaker" view when a witness is testifying, and to admit the arbitrator first. When a witness is admitted and sworn, I ask them to confirm they are alone and do not have a "cheat sheet" to testify.
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  • Tuesday, March 24, 2026 3:23 PM | Tricia Schafer
    I have a standard protocol that I use as a starting point in every virtual case. I share it with counsel a couple weeks before the hearing and give them a few days to suggest how we might tailor it. Then I finalize it as our "mutually created online protocol" and instruct counsel to share it with all witnesses they intend to call, at least a couple days prior to the hearing. At a minimum, the protocol contains the hearing login information, technical expectations, no recording or screenshotting, must be alone in the room (exception for counsel where appropriate), no use of chat feature, no emails/texts during testimony, don't look at any documents or anything on a screen during testimony, explain how exhibits will be displayed, an emergency contact if they get disconnected, and of course use the "waiting room" feature so no one barges into the Zoom during the hearing.
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  • Tuesday, March 24, 2026 10:00 PM | Sheila Carpenter
    The comments on how to ensure the fairness of the virtual hearing all contain good suggestions. They also highlight the risks in virtual hearings. Cheaters will cheat and liars will lie no matter what we say. And, as Mr. Sieg notes, credibility determinations are best made in person. I would like to avoid virtual hearings but I believe they are here to stay because parties like their convenience and economy, particularly in consumer cases. For a big dollar case with significant credibility issues, I want to hear at least the parties in person. I will usually approve third party witnesses testifying remotely. The group in between varies by the case.
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    • Wednesday, March 25, 2026 12:43 PM | Edward Moss, Colorado
      I was a trial judge for 16 years until retirement. Our court system was set up to allow for virtual pretrial hearings in criminal cases - - mostly advisement of charges and acceptance of guilty or not guilty pleas. That was done to avoid the expense and security issues related to prisoner transport from the jail to the courthouse.
      Virtual witnesses in civil cases were infrequent. It was primarily used to accommodate expert witnesses and, sometimes, out-of-state fact witnesses.
      Then Covid changed everything. Jury trials were suspended entirely for months, but court trials went forward either primarily or exclusively virtual. Being in a civil division, civil trials with at least some virtual witnesses became the norm.
      In my more recent ‘career’ as a mediator and arbitrator, partial or full Zoom arbitrations are common. Lawyers and parties often prefer it, having a full understanding of the disadvantages discussed in the above posts. The suggestions made above about ensuring the integrity of the process are much appreciated.
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  • Thursday, March 26, 2026 4:32 PM | Pete Michaelson
    I always allow remote participation when the parties agree to it. Like Judge Moss I was very engaged with remote testimony while I was on the District Court bench in Colorado. I advise the lawyers that as "officers of the court" they need to certify that the witness is either in their presence, and/or advised of proper protocol (no coaching, no notes unless provided to other parties), exhibits available in whatever form the witness requires.
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  • Sunday, March 29, 2026 2:54 AM | Dr. Kishor Shankar Dere FCIArb
    Whether one likes it or not, technology is here to stay because of the benefits and convenience it provides to its users. Therefore, it needs to be used judiciously and pragmatically. If the parties, their lawyers, witnesses, experts and any other bonafide stakeholders unanimously agree to use the virtual witness testimony, then arbitration institution and/or arbitrator needs to act accordingly. Pros and cons of virtual witness testimony ought to be explained to the parties, their representatives and witnesses. All necessary precautions must be taken to ensure that there is integrity of the record. Witness must be alone in the peaceful room without any documents or recording devices. Parties should arrange for the hearing host to use hearing passcodes, use waiting and/or breakout rooms, use Gallery or Speaker view whenever a witness testifies. When a witness is admitted and sworn, he/she should be asked to confirm they are alone and will not adopt an unethical or illegal method to testify. Non-disclosure agreements should be signed in advance with all such witnesses and parties. In case any mischief is committed by the witness or parties, they should be held liable for that.
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