Are remote hearings here to stay?

Roger Emmott, managing director of Roger Emmott Associates Ltd and practice head of SteelExpertWitness, has been involved in expert witness work in the metals and mining sector for over 10 years. He has been cross-examined on five occasions: three at in-person tribunals and two at remote hearings – one of which was a hybrid hearing. He has also attended seven remote hearings on other matters. In this article he describes his experiences at those events.

[MY FIRST EXPERIENCE of a live tribunal was at a case management hearing at the Royal Courts of Justice in London. While I was not cross-examined, it was extremely helpful to understand the setting, the process and the context for the tribunal that came some months later. That is something that is not quite so easy to do with a remote hearing. The setting was very formal and the experience quite stressful. Preparation, as always, was key.

My next experience was also a live hearing, at which I had been asked to make a presentation prior to cross-examination. Much preparation and rehearsal had gone into it. I was allowed sufficient time to make my presentation and the tribunal head asked me many questions about the context. It was beneficial to be across the room from him and to be able to read his body language, to speak with him directly and ensure that my explanations were being fully understood.

My expert work next took me to a live hearing in Hong Kong. The hearing ran over three days and I was cross-examined on the final day. It had been extremely helpful to be in attendance throughout the tribunal prior to cross-examination: I had also been able to work closely with counsel, whom I had not met prior to the hearing, to explain to him many of the complex technical details of the matter.

It also enabled him to prepare his cross-examination from an improved and deeper level of understanding of the many factors involved. Indeed, the use of experts at a very early stage in disputes should not be underestimated, regardless of hearing type. It can be highly cost-effective when experts are appointed and integrated early into the case team. In my experience, experts are often appointed too late in proceedings.

My first remote expert hearing was held with the parties in four different locations across several time zones – and a significant time difference to the UK. In all there were 16 participants, with thankfully only three others allowed to participate during my cross-examination: they being the tribunal head and counsel from each side. That made it much easier to focus on what was happening. I also had in front of me, on a tablet, a live transcript of what I was saying, relayed almost in real time from the remote location.

On that occasion I did not have access to any live archive case material – that was to come later. It can be a little disorientating trying to follow a transcript while responding to cross-examination questions. I found it was better to leave any questions on the transcript to my counsel, who was following the transcript assiduously – making sure that what I said was being correctly transcribed, and secondly raising any points either of inaccuracies or questions which happened on a small number of occasions during the three-hour cross-examination.

I found it was necessary to focus; to take time before responding and to think very carefully about answering the questions. It was much harder to gain the context of the hearing than at a live event. It was professionally run and managed with no technical issues.

The most recent remote expert hearing that I attended was at the Permanent Court of Arbitration in The Hague. The dispute was complex and many parties were involved. Owing to COVID restricting international travel, it was decided to hold a hybrid tribunal: one where the tribunal itself would be physically located in The Hague but there would be remote access for many of the parties who for COVID-related or other reasons were not able to attend in person.

There were three arbitrators, one of whom was the chairman. I was cross-examined with a colleague. We shared a meeting room in London set up for the purpose. Rather like a school exam, all nonrelevant paperwork was banned. We were allowed only our reports in front of us – not even notepaper. In front of us we had three screens: a large screen showing the tribunal itself and two smaller screens – one for the transcript and the other for the document archive, being managed by a third-party document company.

The communications and technology worked well, with very few technical interruptions which were rapidly resolved.

Prior to my own cross-examination I had been able to watch the presentation and cross-examination of the opposing expert. That was very helpful for me to understand his perspectives. I had also been asked to make a presentation. That needed to be very carefully timed as the agreements on timing had been negotiated in painstaking detail with the other side. The writing and editing had received a great deal of care and rehearsals had been essential. The cross-examination itself was relatively straightforward and all the preparation was not in vain. The chairman intervened occasionally, mainly on points of clarification.

I have also attended seven remote hearings on other matters. While they did not involve me acting as expert, the principles were similar. There is often a limited amount of time allocated for the remote hearing. The judge may not have had time to read everything that has been prepared for the case. There is an opportunity to present your arguments, but these must be expressed succinctly.

In conclusion, are remote hearings here to stay? Yes, but not exclusively. A client in a leading law firm recently expressed the opinion that remote hearings will be used increasingly for procedural matters, to avoid the complexity and costs of bringing many people together. The technology is well developed and tried and tested. Hybrid hearings as I have described are surely set to continue. There will always be a natural desire for people to meet face-to-face and there are many benefits to that; but the economics of running hearings will likely determine that as much as possible is handled remotely, with only large and complex disputes warranting the more traditional approach.

Preparation, as always, is key. The more experience one has, the more likely one is to be able to deliver a focused and robust independent view. q