Effective Advocacy for the Virtual Hearing
By Brendan F. Morrison and Samantha Hale
Virtual and hybrid hearings are here to stay and this transformation should be celebrated by litigators. Not only do they provide the added convenience of attending a hearing from one’s home or office, but more importantly, they provide new ways to engage in more effective advocacy. Good advocates will not just “adapt” to virtual hearings, they will take full advantage of the new opportunities to champion their clients’ cases. This article presents the top five tips for effective, and efficient, advocacy in the virtual world.
As it did with almost everything else, the COVID-19 pandemic changed the way that litigants can have their disputes adjudicated. Virtual and hybrid arbitrations are now options for almost any litigant in almost any type of dispute. Given the potential savings of both costs and time for litigants and lawyers, virtual and hybrid hearings are here to stay.
This transformation should be celebrated by litigators. And not just for the added convenience of attending a hearing from one’s home or office, but more importantly, for the new ways in which we can advocate effectively for our clients’ cause through the virtual forum.
Good advocates will not just “adapt” to virtual hearings, they will take full advantage of the new opportunities that these hearings bring, to present and to champion their clients’ cases. Drawing on our numerous experiences using virtual ADR during the past three years, we have come up with our top five tips for effective, and efficient, advocacy in the virtual world:
- Think About Set Design: If a trial is a form of theatre, the virtual hearing has introduced the unique opportunity for set design. Consider how you present yourself, your client and your witnesses based on the case you are presenting and the story you are telling. Always ensure that you, your team and your witnesses are well-lit and in a quiet location for your virtual hearing. Beyond those essential elements, think about creating an appropriate background. Always have one that does not distract from your submissions, but pay attention to your witnesses’ backgrounds as well and craft them to suit their role in your case. Also consider the appropriate distance from the camera to allow both you and your witnesses to communicate effectively to the adjudicator. Consider how far back you and your witness should be and whether anything beyond your faces should appear. Ensure that you and your witness are centred in the screen and looking directly into the camera to help build the essential rapport with the trier of fact, despite the physical distance. Allow your set design structure to bolster your presentation, something that was never possible previously during in-person hearings.
- Take Advantage of Electronic Aids: One of the biggest transformations that we have seen is in the use of new forms of visual aids. This includes the use of slides, charts, and other infographics that can help to convey your clients’ story in a compelling and comprehensive way for the decision maker. The most persuasive visual aids help to bring a decision makers’ attention to key points and winning arguments. The best visual aids take time and attention, and are developed well in advance of the hearing. A PowerPoint that is used merely to have a PowerPoint that simply regurgitates written submissions may be ineffective. Careful consideration of the facts and issues that need illustration to understand will improve your ability to convey your theory and your theme. The virtual hearing offers new opportunities for these aids, and it is important that you think about them early on in your preparation.
- Prepare and Plan Your Technology: Time lost equals costs spent. A virtual arbitral hearing can turn an expensive dispute into a cost-effective adjudication. The cost advantages are reduced, however, if records cannot be viewed by a witness, or if their testimony is inaudible, or if their connection is regularly interrupted. Ensure that not only your own internet connection, video camera and microphone are working properly, but also that those of your witnesses and others involved in the proceeding are also working properly. It is also a good idea to test any virtual tools that you will be using before the hearing. In addition, knowing your audience is important. Do not assume that all participants have a similar level of technological competence. Schedule a pre-hearing conference with all counsel, and include the reporter and the arbitrator, to discuss the various technological issues that may arise. Not only is this a good test-run for all involved, but the parties and participants can also come to terms about protocols related uniquely to virtual hearings, including how documents will be produced during cross-examinations or how and when a hearing will be paused if a participant’s connection is lost during the course of the proceeding.
- Practice Active Listening: Virtual advocacy is a unique skillset, and it can be more difficult to read the room and gauge reactions when you are staring at a screen. As well, nonverbal cues such as eye contact and facial expressions are even more important when you are being viewed on a large screen. This is just as important when you are making submissions as when you are not. The decision maker has a front row seat to your every expression. Practice making submissions and responding to questions looking straight into the camera, not at the participants’ faces on the screen. Consider splitting your screen during submissions. Have the script of your electronic submissions open on one half while the virtual hearing room is on the other. This allows you to maintain the rapport and attention that many have worried would be lost without a physical presence. Pace is key as well. Be sure to pause and give the witness or the decision maker time to respond or to ask questions. Your killer cross-examination questions will not be heard if you and the witness are talking over one another.
- Take Breaks: Even though it may seem counter-intuitive, we have noticed that virtual hearings can be more mentally draining than their in-person counterparts. The courtroom-based break model should be thrown out the window – more breaks, even in shorter duration, will allow a relief from screentime and provide to all parties, including the decision maker, the chance to recharge and refocus on the matter at hand.
The virtual hearing has created just as many new opportunities for advocates as it has for litigants. Advocating effectively in this new world requires careful consideration and careful preparation. Visualize your clients’ case and prepare it using all the tools we now have available. We hope that our tips will assist in considering how to best complement your existing advocacy toolkit.
Brendan Morrison is a partner at Lenczner Slaght. Brendan’s civil litigation and appellate practice focusses on commercial litigation, professional liability, and shareholder and employment disputes. As counsel to both plaintiffs and defendants, and before all levels of courts in Canada, Brendan has a record of success guiding his clients through their most challenging disputes.
Samantha Hale is an associate at Lenczner Slaght with a litigation practice focused on commercial disputes, professional liability and regulation, civil matters, and public litigation. She has completed clerkships at the Supreme Court of Canada and the Superior Court of Justice (Divisional Court).