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| 1 minute read

Litigants Should be Prepared to Move Forward With Arbitration Proceedings

Just as 2020 has forced people all over the world to learn how to communicate by videoconference, law firms and litigants have faced a crash course in conducting their business - depositions, mediation and hearings - by virtual means. Once reserved for the deposition of a minor witness in a far off location or the extremely cost conscious client, video depositions have become the norm in 2020. Beyond that, even activities once considered unthinkable - fully remote mediation and arbitration hearings - are now routinely conducted by videoconference. Our firm has conducted all of these activities by remote means in the past 6 months, and we have depositions, a federal court mediation and an arbitration hearing all on the calendar before the end of 2020.

While forums were initially sympathetic, at least informally, to the arguments of litigants and law firms that the demands of the pandemic outweighed the need to move cases forward, it appears that in recent months arbitration forums and courts are recognizing that "justice delayed is justice denied" and requiring parties to move forward virtually, particularly in arbitration. The attached article discusses two such matters before FINRA where the forum chose to move forward with a virtual hearing and that decision was not disturbed on review by a federal court.

There is no question that conducting a deposition or hearing by videoconference is a very different experience than an in-person examination. Different does not have to mean worse, however. As COVID-19 remains an issue as we look ahead to 2021, it would be wise for all law firms and litigants to be prepared to arbitrate matters to conclusion by remote means.

Courts have not been swayed by these arguments. According to the Bryan Cave note, the judge in the Legaspy case believed that while remote hearings may not work as well as in-person hearings, they don’t prevent parties from putting up a defense, and it’s possible that a claimant would face steeper challenges in a virtual setting than a defendant.