Many have speculated what the legal world will look like if and when the pandemic lets up. Some believe we will continue with the virtual world with more and more court proceedings and arbitrations being online. Others think we will go back to the physical in-person world for most activities. But a sizable number believe we will have a hybrid world. This means some participants will be physically present in a courtroom or conference room while others will be online. This hybrid approach reduces risk on the one hand and enhances convenience on the other.
But hybrid may be the least likely alternative.
I have to confess I thought that a hybrid world would provide the best of worlds. Those who felt like they needed to be present for a court proceeding, arbitration, or meeting could be. Others could participate virtually just as well. But after talking again recently to Graham Smith-Bernal, the founder and CEO of Opus 2, I’m not so sure hybrid is a viable option for most proceedings. At least anytime soon.
Opus 2 offers a semi-virtual integrated hearing and trial platform internationally. It recently added video capability, enabling virtual trials and hearings to take place seamlessly.Opus 2 also allows hybrid proceedings in which a few key participants—the lead lawyers, the judge, and a smattering of courtroom personnel—are present in a courtroom, but most participants are present virtually. Graham shared his experiences with me about these hybrid type proceedings. Since the pandemic started, Opus 2 claim to have facilitated some 413 Virtual/hybrid hearings spanning over 1100 days with over 3600 participants.
I had chatted with Graham way back in April about the pandemic’s effect on court proceedings and what the future might look like. Here’s my post talking about that conversation. At the time, Opus 2 was just beginning to offer video capability in addition to the audio capability for remote participation in court and arbitration proceedings. At the time, Graham cited arbitration and certain court proceedings as examples where more passive participants could attend remotely and more involved parties in person. He called these arrangements hybrids. Since then, Graham noted that most proceedings had moved entirely online. Recently, though, judges and arbitrators have pushed more for hybrid proceedings so that some of the more essential participants can be in person.
Here’s the problem with hybrid, says Graham. Our courtrooms and most meeting rooms are designed to host in-person proceedings and meetings. That makes all in-person events simple. We all show up, take our seats, and begin. Likewise, virtual proceedings and meetings are now pretty simple by now: you call in and being. Either way, everyone, by and large, have equal footing, and the playing field is level.
But when you go to the hybrid world, you have to make accommodations so the virtual participants, particularly for court proceedings, have the same quality access to both audio and video as those physically present. That documents can be seen by everyone simultaneously with no delay. Otherwise, there is inherent unfairness between those physically present and those virtually present.
When the video remote component is added to the hybrid proceedings, things get a lot more complicated from a technical perspective
When the video remote component is added to the hybrid proceedings, things get a lot more complicated from a technical perspective. More cameras with greater sensitivity are needed, so whoever talks will be on screen. More microphones are required to pick everything up. Those present in person have to see and hear the remote participants and documents as well as if they were physically present.
Other barriers exist. Control and sequestration of witnesses become more challenging. Document presentation and viewing are complicated when some are physically present, and some are not. Preventing delays for some participants is vital to the smooth running of the proceedings. Control and mixing management becomes essential, requiring skilled technicians.
Graham sent me pictures of the control room Opus 2 set up for a few hybrid proceedings. These rooms rival the Starship Enterprise for the equipment and sophistication. Few courthouses or even conference facilities have this capability right now. Graham does note that some law firms are building state of the art hearing rooms for hybrid proceedings.
So get used to it. We may be in store for more all online hearings and proceedings are the foreseeable future.
Obviously, the technical requirements and personnel to make hybrid proceedings work are quite daunting. Says Graham, “Such things may be barriers to all but the biggest hearings and proceedings” to be done in a hybrid fashion, at least for the time being. He claims, “Hybrid is complex and expensive and should be carefully and selectively deployed. Virtual may still be the best choice for many hearings, but if you need to do hybrid – it needs to be done well…”.
Get used to it. We may be in store for more all online hearings and proceedings are the foreseeable future.