Remote Hearings Are Here to Stay—Here Are the Pros and Cons
Anamaria Popescu and Daniel Ryan
New report details the psychological effects of remote hearings in the eyes of testifying experts, attorneys and psychologists
“The expert witness on the other side was flirting with the arbitrator over Zoom, and I just thought to myself, ‘That’s it. We’re screwed.’”
Eighteen months ago, this anecdote would have been almost incomprehensible to lawyers, judges, expert witnesses and anyone else involved in court hearings. Flirting with an arbitrator over Zoom? What’s Zoom?
But now, like so many other aspects of our current moment, remote hearings are part of the “new normal”—and it’s widely accepted that they’re here to stay. Of course, that doesn’t mean virtual and in-person hearings do not have differences. In the story above, from an interview conducted for BRG’s new report on The Psychological Impact of Remote Hearings, we see how, removed from the courtroom setting, arbitrators and judges can be stripped of their positions of authority—making hearings more relaxed, difficult to police and vulnerable to undue influence.
Yet that’s only one potential impact. Broadly speaking, our report finds that the experience of remote hearings has been largely positive and negative psychological impacts won’t be enough to discourage their continued use. Everyone we interviewed acknowledged the new systems’ efficiencies, namely eliminating the time and cost of flying teams of experts around the world, the easy sharing of often large volumes of text and improved communication between legal teams that might be physically apart in an in-person setting. Data from the California chief justice’s pandemic workgroup points to even more benefits, showing that in cases where courts relied almost exclusively on remote hearings, clearance rates improved over pre-pandemic levels.
Still, given the myriad complexities at play and the fact that remote hearings won’t be going anywhere soon (if ever), it’s crucial that court participants consider their positive and negative psychological impacts. Below, we discuss some pros and cons as uncovered in our report.
Positive psychological impacts of remote hearings
Virtual setting often puts expert witnesses at ease
Barriers that are part of the remote environment make it harder for those tasked with cross-examination to deploy traditional techniques designed to unnerve expert witnesses. As our colleague Mustafa Hadi, a managing director and expert witness at BRG, noted in the report, “Aggressive cross-examination is not that effective in a remote setting. If somebody’s trying to be aggressive with you, you can simply turn down the volume.”
This might positively impact the entire process. If it’s easier to give evidence, participants likely will receive better answers, which should only help the court understand said evidence.
Technology can heighten lawyers’ abilities to assess a witness’s viewpoint
While initial technical glitches may have disrupted the flow of proceedings, lawyers largely found that switching to remote hearings did not affect their ability to question or determine the validity of an expert witness’s testimony. On the contrary, the ability to “zoom” in on those undergoing cross-examination can make it easier to spot telling facial expressions.
“You can see exactly where they stand and get a sense as to the veracity of the evidence provided through non-verbal cues alone,” said Chiann Bao, a member of Arbitration Chambers.
Overall, the majority of lawyers and expert witnesses don’t believe the outcome of proceedings is affected
Perhaps most significantly, the majority of participants interviewed for the report agreed that the outcomes of remote proceedings have been the same as they would have been in person.
“We’ve all made it work, the same way that other people are making adjustments to their jobs and kids to schoolwork,” said Santiago Dellepiane, a managing director and expert witness at BRG. “Ultimately, there’s no difference.”
Negative psychological impacts of remote hearings
Virtual preparation is less effective
Many cited the lack of in-person preparation before entering proceedings as a major drawback; some saw a negative impact on the performance of both the expert witness and wider legal team. Virtual preparations lack the intensity or anticipation associated with an in-person deposition, which helps build confidence and ensures that everyone is on the same page. Combined with a lack of pre-court team building, this can lead to miscommunication between counsel and expert witnesses.
The psychological importance of preparing with teams in-person is such that many expert witnesses would prefer to travel to conduct such preparations this way, even if the hearing itself were to be conducted remotely.
Remote hearings can be too relaxed—impacting the effectiveness of expert witnesses and judges
While virtual settings certainly can put expert witnesses at ease—in a good way—they also can result in the witness being lulled into a false sense of security, to the benefit of the opposing counsel. Our report finds that some expert witnesses, without the sights and sounds of the courtroom, resorted to imagining being in the physical environment to maintain focus.
At the same time, arbitrators and judges, removed from their natural position of authority in the physical courtroom, were reportedly less inclined to interject on procedural grounds, which can detract from the value of cross-examination to the tribunal.
Technological issues and “Zoom fatigue” can negatively impact decision-making
There’s a flip side to being able to turn down the volume and zoom in to examine facial expressions. For instance, multiple people sharing the same camera—such as in cases involving a bench—or an expert witness sitting back from the lens can hinder lawyers’ abilities to judge reactions and ascertain a sense of the room.
“Zoom fatigue” is a real factor, and expert witnesses reported juries and judges taking less interest in their testimonies and decisions being reached considerably more quickly compared to in-person hearings.
Psychologists interviewed for the report point out that there is a case for withdrawing video from the equation altogether, thereby allowing decisions to be made based purely on speech and lessening the potential impact of unconscious bias from decision makers. They suggest the result would be a more equitable hearing.
Remote hearings are here to stay
Regardless of the pros and cons, the effectiveness, access and legal benefits of remote hearings—especially with the pandemic resurgent—mean that they will be with us for some time, and perhaps indefinitely.
In this new environment, considering the various psychological impacts is vital. It’s important to remember too that remote hearings are still relatively new and can differ depending on the case, its participants, the technology used and other factors.
Ultimately, the learnings documented in our report are just the first step in an ongoing and evolving readjustment. Even if outcomes are perceived as largely unchanged, the experience is different, consciously or not.
As legal psychologist Stepan Puchkov told us, things like body language, speech intonations and delays in answering questions are part of how we process speech and behavior, and our perceptions are not limited to what we process consciously. That’s part of what makes expert testimony so complex—and why the pivot to remote has been so consequential.
“Online hearings are a totally different experience,” Puchkov said.