Financial Institutions Law Alert

On March 9, 2021, Bressler, Amery & Ross, P.C. hosted its inaugural Hearings in Review webinar on The New Age of Virtual Trials. The panel featured Richard Berry, Executive Vice-President and Director, FINRA Dispute Resolution Services; Richard Szuch, Enforcement Chief, New Jersey Bureau of Securities; Peter Mougey, Chair of the Securities & Business Litigation Department, Levin, Papantonio & Rafferty, P.A.; and two of Bressler’s lead trial lawyers in the Financial Institutions practice group, Sean Coughlin and Bradley Rounsaville.

Over the course of the program, the panelists discussed the developing virtual trial landscape and shared insights on how litigators can conduct hearings and try cases effectively using Zoom and similar platforms. The webinar provided a unique opportunity to gain insight into the changing landscape of dispute resolution from all sides of the industry. Highlights from the discussion include the following:

Virtual trials are here to stay. While the success of COVID-19 vaccination efforts points to the eventual return of in-person trials and arbitration hearings, virtual platforms like Zoom will continue to play an increasing role in litigation. In the FINRA forum over the past year, more than 200 cases have had at least one day of virtual arbitration hearings, and feedback from arbitrators indicate they are very pleased with using  Zoom for final hearings. Moreover, FINRA’s data indicates no significant differences in customer “win rates” between in-person hearings and Zoom hearings. FINRA has worked diligently to provide arbitrators and parties with resources and training on using virtual platforms, much of which is available to the public on FINRA’s website. Zoom has also proven to be a helpful tool for regulators to continue investigations and enforcement actions at a rate at or even above pre-pandemic levels. Post-pandemic, it is likely that Zoom will be utilized for simplified arbitrations and remote witness testimony, and may be preferred to in-person proceedings in certain cases. 

Virtual proceedings are critically different from in-person hearings and trials. Litigators should not make the mistake of treating a Zoom hearing like an in-person hearing. When the fact-finders are in different rooms than the parties and witnesses, lawyers must work harder on the front end to ensure that the “human element” of the case is not lost. While body language and non-verbal cues are diminished on screen, distractions are amplified. Even something as simple as a ceiling fan turned on in a witness’s Zoom background can weaken the impact of his or her testimony. Thus, it is crucial to learn the technology and invest in good equipment, such as additional cameras and microphones. In virtual trials, lawyers become the producers, directors, and actors in an on-screen production, and they must consider how to command the room when the room has shrunk to a 2x2 box on a computer screen.

Adjust your preparation and trial techniques for the new medium.

Plan for the audience. Presentation is a critical element of any trial. In a world of virtual trials, however, presentation matters in different ways. Equipment, backgrounds, and comfort require special planning and consideration. Consider ways in which you could improve these elements of the virtual world for your audience. Negotiate equipment needs well in advance. Do test runs of your equipment and screen to assess and avoid real-time distractions.

Avoid document drama. Several panelists noted that the number one hurdle with virtual trials relates to the presentation of documents and exhibits. Juggling documents can be challenging for arbitrators and regulators alike. Consider forming agreements with your adversary to send joint exhibits of hard copies in advance or to plan for technology—such as screen sharing—that will allow for presentation of evidence in a clear and easy to follow manner.

Not so tech savvy? Many virtual trial participants were not accustomed to relying on technology prior to the pandemic. Even as we pass the one-year mark of remote technologies permeating everyday work environments, be sure to consider how well-versed a participant is with technology in advance of the trial. Witnesses, arbitrators, regulators and attorneys can all benefit from advanced practice with the platform of choice to avoid mishaps.

Play to your strengths. One panelist remarked that lawyers should not try to be someone else during a virtual trial. Your strengths will remain the same, camera or no camera. With that in mind, think about how the virtual medium can be used to your advantage. Consider ways to present demonstratives and arguments in the most natural fashion for your argument style. One tip: “Hide” your own screen so that you can view the other participants without being self-conscious.  

Collaboration has never been more important. All panelists agreed that virtual trials have made collaboration more important than ever. Use this shift in medium as a catalyst to problem-solve with your adversaries to the extent possible. Technology-related issues can sour the mood and frustrate the purpose of dispute resolution. Advanced thought and collective effort can go a long way toward effective and efficient outcomes.

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