Canadian Lawyer

February 2021

The most widely read magazine for Canadian lawyers

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Page 25 of 35

24 LEGAL REPORT LITIGATION "We believe that the arbitration panel is responsible, prior to and following an order, to conduct a virtual hearing, for anticipating potential problems and asking key questions to identify those weaknesses or worry spots." Limitations in an individual's equipment and technological skills can create barriers to their full engagement in the process, which the arbitration panel must address to avoid undermining the integrity of the process and resulting award. At the same time, they noted, virtual proceedings can avoid problems that delay in-person hearings, such as a participant's missed or cancelled flight, visa or other trav- el-related issues. Adequate connectivity A single participant's slow internet speed or device will materially impact a virtual hearing. Full-function videoconference platform All participants should have downloaded the version of the videoconferencing platform being used before the pre-hearing test. In the case of platforms such as Microsoft Teams, the app has much greater functionality than the Web version. Headphone use Headphone use by all participants should be required. Their use prevents "Technology is causing an interruption and allowing everyone to take a break until all of the participants are on the same page." Jacob Damstra, Lerners LLP more . . . exposure to litigation and advocacy," he says. In Calgary, Michael Mestinsek, head of the advocacy group and a member of the partnership board of Stikeman Elliott LLP, finds that virtual hearings have been working better than was expected when the virus first struck back in March. They have worked especially well for the firm's insolvency and restructuring lawyers in Commercial List hearings, he says, "which are far more regular" and where the proceedings have been "almost seamless." "If you've got only two counsel and a judge, speaking to a matter that doesn't have any live testimony from witnesses" but is simply an application based on filed, written mate- rials, "there aren't that many challenges to [a virtual hearing] being effective," says Geoffrey Holub, who practises in Stikeman Elliott's litigation & dispute resolution group in Calgary. Although rules of procedure provided for virtual hearings before the pandemic, Holub says that, in nearly 30 years of practice, he had never used it; now, he says, he has partici- pated in close to a half-dozen in the past eight months. Post-pandemic, there will be more virtual hearings, Holub predicts, "not for viva voce evidence, but certainly for applications for other matters. It's an option that more people and judges will be comfortable with." Practical considerations for virtual hearings Hopkins and Urbas selected diverse groups of 10 to 12 North American arbitrators for four simulated half-day virtual hearings held between spring and fall. Their resulting report summarized key lessons: Managing technology to maintain a fair, smooth-running hearing Preparation and planning by counsel and the arbitration panel emerged as the most important factor for a smooth-running hearing and to ensure that everyone could participate in the hearing properly. "As top-of-mind advice for those involved in a virtual hearing, one participant said, 'prepare, prepare, prepare,'" Hopkins and Urbas wrote in their paper. FOCUS ON AUDIO-VISUALS Raise the height of the camera, avoid backlighting and consider how close a participant's camera should be to the subject. Be extra aware of facial expressions, which become more obvious when on camera. Attention can easily wander during pauses when a lawyer is presenting a document. One solution is to describe out loud the steps being taken.

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