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Virtual Arbitrations/Trials — Should You Use An Expanded Witness Oath?

For arbitrations and trials that are pending and/or are scheduled for the near term, the judges/arbitrators/counsel/parties are now confronting the decision on whether to proceed forward with conducting the proceedings remotely.  If they decide to proceed forward, there will naturally be some reluctance to proceed forward.  The reluctance is because it is new and unfamiliar.  It is because there is a sense that it may be more challenging to evaluate a witness’ credibility and veracity.

Virtual Witness Integrity Steps

Arbitrators, attorneys and witnesses have an obligation to ensure that in the context of virtual hearings, all forensic and procedural fairness requirements are met. The use of a virtual platform for arbitration proceedings gives rise to a number of issues, one of which is the swearing in of remote witnesses and adoption of safeguards to avoid problems. Ensuring that the witness does not utilize “crib notes” during testimony is one such issue. Another is improper coaching by a person in the room with the remote witness or otherwise in direct communication with the witness during examination. Of course, Parties should always be encouraged to negotiate a set of appropriate protocols for submission and adoption by the Panel. In the absence of such cooperation, there are a number of steps a Panel can take.

Everyone is familiar with variations of the standard oath: “Do you swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth.” This, of course, is effective in the live face-to-face context. In the virtual context, this oath can literally be met even by a witness who is receiving information from others during his/her testimony. This reality requires adoption of some procedural safeguards and an expanded witness oath. Some of these are addressed here, but this piece is not an exhaustive treatment of issues or solutions.

1. When a hearing starts, all participants should be identified. The Panel Chair should conduct a colloquy with the parties and counsel to confirm that a) the only persons permitted to attend are those approved by opposing counsel and the Panel and b) no one shall be assisted during the course of examination. This colloquy, at least as to attending participants, should be repeated after hearing breaks.

2. For each remote witness, the Panel Chair should identify all individuals present in the location of the witness, and the witness should remain visible to the Panel and counsel at all times.

3. Counsel should confirm to the Panel that each remote witness has been apprised of the procedures or protocols relating to remote witnesses that have been adopted for the virtual arbitration proceeding.

4. Where the witness is not accompanied by counsel or other representative, steps must be taken to deliver potential exhibits prior to cross-examination. One mechanism is to deliver a sealed package of exhibits to the witness who will then open the sealed package on camera in front of the Panel and counsel at the onset of testimony. Another mechanism is the document sharing platform available on Zoom and other platforms.

5. Finally, an expanded oath should be given to the witness that addresses these concerns. One example is:

“Do you swear or affirm that the evidence you are about to give will be the truth, the whole truth, and nothing but the truth? Do you swear or affirm that you have followed the Panel’s procedures regarding your appearance as a witness in this matter? Do you affirm that there is no one else in the room with you [except those authorized], that no unauthorized person can communicate with me, and that I have not seen or reviewed the documents that may be shown to me by opposing counsel.”

©2020 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 142

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About this Author

John E. Bulman, FCIArb Construction & Commercial Trial Attorney Pierce Atwood Providence, RI & Boston, MA
Partner

John Bulman has more than 25 years of experience in construction and commercial trial matters in Massachusetts, Rhode Island, and other states. He has served as counsel in trials, mediations, and arbitrations in Massachusetts, Florida, Rhode Island, New York, New Hampshire, Connecticut, Pennsylvania, Vermont, Ohio, Missouri, Texas, and other states. John has argued cases before the Rhode Island Supreme Court and the First and Eleventh Circuit Courts of Appeal. John is repeatedly ranked by industry publications as among the top construction and alternative dispute resolution practitioners...

(401) 490-3435
Thomas Dunn Construction Attorney Pierce Atwood
Partner

Tom Dunn concentrates his practice in construction law and complex business dispute resolution representing clients in various sectors of the construction industry, including power generation, utility and road work, painting, and plumbing and mechanical work. Tom has served as trial counsel representing owners, general contractors, subcontractors, and design professionals in multiparty, complex commercial litigation in state and federal courts.  Tom splits his time between the Providence and Boston offices. 

In addition to litigation, arbitration, and mediation, Tom counsels clients in construction contract drafting, review, negotiation, and dispute avoidance services, including EPC, design-build, CM, GMP, and cost-plus contracts and subcontracts. Tom regularly works with the AIA Contract Documents, ConsensusDocs Contract Documents, and custom manuscript contract documents.  In his 15 years of practice, whether resolving disputes or drafting contracts, Tom actively listens to his clients and works collaboratively with them to develop a plan to best serve and advance their objectives in an effecient, pragmatic manner.

Tom has asserted and defended disputes concerning claims related to: breach of contract, mechanic's liens, Miller Act, steel fabrication, bridge and roadway, change orders, loss of efficiency/productivity, abandonment/cardinal change, total cost, quantum meruit, modified total cost, differing site conditions, delays, trade secrets, covenant not to compete, Chapter 93A consumer protection, engineering professional malpractice, shareholder direct and derivatives, breach of fiduciary duty, employee compensation, construction defects, employee discrimination, business valuation, performance bonds, payment bonds, project labor agreements, indemnity, and usury.

Tom is also a leader, speaker, and active contributor to national, state, and local construction lawyer and construction industry groups.

617-488-8100