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In January 2017, I identified a series of technology-related trends that were making electronic trials and hearings with remote participation not only possible, but increasingly practical. As I revisit this topic today, restrictions on travel, work-at-home mandates and bans on even small gatherings in the wake of the coronavirus pandemic are causing turmoil and uncertainty in the legal community, including widespread postponements and scheduling changes. Judges, court officials and litigators are scrambling to find new ways to accommodate remote proceedings and adhere to schedules without participants being able to meet in person.

While three years ago I could not have anticipated the events of the last few months, it's clear the time for leveraging technology to support virtual trials, hearings, arbitrations and depositions has arrived. Back then, I wrote about the emergence of tools for real-time online legal collaboration, "pop-up" technology to digitize courts and hearing rooms, and international arbitrations with remote participation. I also called attention to the integration of digital courtroom technology with pre-trial applications for case management, case analysis, deposition and transcript management, and more. All of this seems more relevant than ever today.

It is a little-publicized fact that some legal practitioners have been participating in digital trials, hearings and similar proceedings for almost a decade in jurisdictions across the world. We can all benefit from the experience of these "pioneers" of remote legal work. Suddenly forced to do our jobs from dispersed locations, we in the legal profession must now think seriously about identifying and deploying tools that allow us to resume important litigation-related functions under these very new circumstances.

Fortunately, we now have highly scalable, secure, cloud-based technology for legal teams that is optimized for communications (both private and public), connectivity and collaboration. This technology is not new, but is currently at a mature stage of development. It has been thoroughly tested under real-world conditions, and has proven sufficiently flexible and effective in diverse legal settings and legal systems across the world to merit optimism about our collective ability to respond to the situation we face today.

As you investigate solutions to accommodate remote work and virtual proceedings, here are some basic considerations to keep in mind:

Whenever possible, use fully integrated solutions that minimize the number of applications required to do the necessary work. At minimum, if you are preparing to hold remote proceedings with full audio and video streaming, make sure the platform you use works with leading conferencing solutions like Cisco Webex, Zoom, BlueJeans and Skype for Business. Beyond that, you should be aware that it is no longer a stretch to deploy technology which can integrate evidence that is presented electronically alongside real-time transcription with live collaboration capabilities. All they key documents and work product are accessible electronically by all members of the case team dispersed in multiple locations.

Some legal teams already use a single, secure platform to do all of these things, as well as many of the collaborative tasks they perform ahead of time to manage casework and prepare for trials, hearings, depositions and negotiations. These tasks include early case analysis, annotation and markup of evidence and work product, hyperlinking of documents and text, development of case strategy, argument- and timeline-building, and more. We are no longer dependent on multiple tools to perform these essential interrelated tasks. Purpose-built systems designed specifically for non-technical legal professionals are now available and have a solid track record for delivering cost-effective solutions to the challenge of working and conducting proceedings remotely.

Make sure you have all the necessary equipment installed—and thoroughly tested—ahead of time. This may sound obvious, but as the number of remote participants multiplies, it's increasingly important to use a checklist and complete a brief, formal testing regimen to ensure a seamless process. Each participant in a proceeding who is joining individually should have a good quality headset with a microphone. Also recommended is a multiscreen setup for attorneys and other active participants so they won't need to switch between windows to access different streams of information simultaneously. If circumstances allow, establishing single-site "hubs" from which small groups of participants can safely join a meeting or proceeding can be beneficial and helps reduce the complexity of setup. Hubs should be located in acoustically optimized rooms and equipped with good quality speakers.

Designate a project or session manager who is responsible for technology and who has experience managing the applications and hardware involved. Typically, the provider who deploys the system will make an experienced session manager available to oversee all of the technical aspects of the proceedings and intervene quickly to solve any problems that arise.

If possible, schedule a short training session to familiarize participants with the technology. Ideally, this session will be held a few days before the trial or hearing or deposition. Also, allow sufficient time before the start of proceedings to check equipment, make sure all participants are present and online, and ensure connectivity from each remote site.

Have a clear plan for addressing and resolving technical problems. While the technology for conducting remote proceedings has now been in use for years, occasional connectivity and hardware malfunctions cannot be ruled out. Every proceeding should have a recovery plan in the event of a technical glitch, including:

  • An escalation process that allows a court reporter or live session manager to request a pause in proceedings if, for instance, a key participant loses their connection;
  • A process for creating a backup recording of audio/video on the conference line that can be used to finalize the transcript of proceedings if there is an interruption; and
  • A process for participants to raise issues or inform the session manager if they lose their connection or have problems with audio/video quality.

Finally, don't allow cost become a point of contention between parties as you plan remote proceedings. Both parties in a dispute stand to benefit from cost-sharing for remote proceedings when the technology is effective, increases efficiency and is easy to use. Over the years, we have repeatedly seen virtual trials and hearings achieve significant savings for participants and their clients on travel costs, the costs of printing and photocopying trial or hearing bundles, and the time involved in commuting to and from a physical venue.

In fact, cost-awareness has been the key driver behind more frequent use of arbitration with remote participation in US jurisdictions, and it has also been instrumental in the development of fully electronic hearing rooms for multijurisdictional international disputes in other regions of the world. In many cases, it simply isn't practical or cost-effective for parties and participants in complex litigations to all gather together from widely dispersed geographical locations to conduct proceedings in the same room. While the current pandemic only underscores that fact, the good news for legal professionals is that we already have the technological means, and a decade's worth of real-world experience using it, to address the challenge before us.

Graham Smith-Bernal is the founder and CEO of Opus 2.