 Barry Leon |
 Anthony Daimsis |
This is the second in a three-part series that explores the role the metaverse could play in the future of dispute resolution, with a focus on arbitration. In the previous article, Anthony Daimsis explained what led to the University of Ottawa becoming the first law school to contest the metaverse. This article describes the pros and cons of a hearing in the metaverse. In the third article, Barry Leon will comment on these observations and draw on his own experience conducting virtual arbitrations to offer his perspective on how virtual reality technology can play a transformative role in dispute resolution, even if it is still in its infancy. state.
Much more important than the differences between a virtual courtroom and a Zoom hearing is what virtual reality hearingrooms mean for access to justice and justice in general.
if you follow this clutchyou’ll see what the uOttawa/LeClair virtual reality courtroom looked like before the contest.
You may have noticed that the “student lawyers” are depicted as so-called “avatars”. An avatar is a virtual character that a user can design to resemble themselves (although I haven’t seen an overweight avatar, including mine!).
The technology is still in its infancy, but it works well. A person uploads a photo of themselves and can tinker with height, weight, body shape, hair color, hair style, eye color, skin color and so on. You may then dress up your avatar as you wish. It turned out that everyone in the disputed courtroom metaverse was wearing business suits. The judges were dressed.
From the perspective of conscious and unconscious bias, the implications of controlling how a client “looks” cannot be underestimated. Virtual reality ensures a conscious homogeneity between parties, which is not possible in the real world.
Of course, such intentional homogeneity has its drawbacks. For example, verifying that the avatar present in a virtual reality courtroom is the person mentioned in court documents will be a hurdle to overcome, especially for self-representing litigants. For individuals represented by attorneys, which most often occurs in arbitration, it is less of a concern, as attorneys are already required to verify the identities of their clients.
Assessing the credibility of witnesses
One of the concerns raised by arbitrators, judges and attorneys at the outset of the Zoom proceeding was the ability to assess the credibility of a witness on Zoom. It turned out that it was easier, or at least as easy, for many to judge the credibility of a witness, as a witness’s face was much closer or easier to see on a screen than if the witness were several feet away , although the entire witness interrogation and what was happening around the witness could not be seen, and despite the witness often being in a more comfortable and familiar environment.
The ability to assess credibility in a virtual reality environment has its challenges. The technology used in virtual reality does not perfectly mimic a user’s body movements. A user can control hand and arm gestures, but an algorithm determines how often one blinks. It makes for a very realistic sighting, but it’s not authentic or completely accurate.
But maybe this is not harmful. Many studies suggest that visual cues, such as too much blinking, too little eye contact, or a nervous demeanor, have little to do with credibility or truthfulness, despite what many arbitrators, judges and others believe.
As for evidence, one area where a virtual reality hearing room is superior to a Zoom hearing room involves presenting written evidence. For example, a user must “share his screen” in Zoom. Even when executed perfectly (usually with the help of more technologically advanced help), it makes for a somewhat clunky procedure.
However, in a virtual reality hearing room, evidence is projected into the hearing room, usually on – and now you have to use your imagination – a virtual screen in the virtual hearing room. It may not sound easy, but as someone who has used it, I can tell you it’s pretty seamless. It’s like a lawyer in a real courtroom rolling into a large TV monitor to project exhibits onto. A crucial difference is that in a virtual reality hearing room you don’t have to worry about the screen being too far in front of you to view. As a user in the virtual reality hearing room, you can control how large or small the screen displays the evidence.
After our virtual reality discussion, I took part in several interviews with different news channels. A recurring question was how difficult it was to get used to the technique. The question was pertinent and pertinent to those considering using this technology. If the technology is too difficult to use, it will not be used. And (forgive my clumsiness) many more experienced arbitrators and judges will shun the technology if it’s too complicated for them.
It turns out that the technology is both simple and quite intuitive.
We were lucky enough to attract three impressive judges of varying ages and technological prowess for our virtual reality discussion. One was a former Supreme Court judge, now an active international arbitrator, Ian Binnieone was a sitting Ontario Court judge, Judge Jodie-Lynn Waddilove, and the third was an experienced attorney to whom this technology was not so new, Ron LeClair†
In the run-up to the moot we had a short “tech” exercise, and to my surprise, it didn’t take more than 10 minutes for all the judges to become familiar with the technology.
The critical flaw of virtual reality
Any attorney who has argued in arbitration or in court will quickly notice a major flaw of argumentation in the metaverse — the inability to rely on notes.
I brought this up with the members of the team that built our virtual reality hearing room. It’s a known flaw of the technology, but perhaps not fully appreciated by non-lawyers.
Current virtual reality technology requires a user to use a headset. The headset covers the user’s eyes and effectively isolates the user from the outside world. It seems that this is necessary to create an immersive sensation. Unfortunately, to my surprise, the technology doesn’t seem to allow users to transpose notes or bring books from the real world to the virtual reality world yet.
This is a significant drawback, especially for lawyers, but even for arbitrators and judges. While the technology includes a rudimentary virtual notepad on which a user can put some information, it is not the same as a notepad and paper or a laptop for taking notes or reading notes.
While a student’s ability to speak without relying on notes is celebrated in competitive discussions, it’s rare to see a lawyer speak without relying on notes. As someone who coaches advocacy but also appears before courts and tribunals, I’ve always worried that speaking without relying on notes could be considered suspect. So it has always bothered me to teach students to speak without notes when I know that lawyers rely (and perhaps should) on notes to varying degrees.
A related point is the inability to rely on notes from fellow and junior attorneys. Zoom hearings have made support attorneys an even more valuable asset than in-person hearings. Unlike arguing in person, Zoom allows senior advisors to receive desk-side notes from their team (junior counsel, client representatives, experts) without the counterparty or decision maker realizing or being distracted.
In a personal debate, the counselor is more or less limited to receiving help from the co-counsel, who sits at the council table with them, and perhaps a client representative and/or expert who is nearby.
And while there’s no formal rule against co-counselling’s use of technology to receive notes from counselors (or clients) who aren’t at the council table, it can get distracting pretty quickly. Zoom has made these exchanges almost seamless. In the current model, virtual reality does not allow this.
So, while I’m sure that the developers of this virtual reality technology will soon overcome at least some of these hurdles, I’m not convinced that a virtual reality hearing room is ready for today’s dispute resolution.
But once these technological shortcomings are overcome, virtual hearing rooms need to transform practice, especially in international arbitration.
Traveling to a hearing is a significant expense, both money and time. These costs are increased in the context of international arbitration. Even Canada’s highest court seemed concerned about travel costs when determining the admissibility of a dispute resolution clause between an Uber driver and Uber (see Uber Technologies Inc. v. Heller2020 SCC 16, par. 94, 95).
Once virtual reality technology catches up with most (if not all) hearing needs, there’s less reason to travel. The prevailing view in international arbitration now is that using Zoom for certain steps in the proceeding, especially case management conferences, is more than adequate.
On balance, however, many arbitration participants believe that hearings, especially cross-examination of witnesses, should be conducted in person because the difference between Zoom and in-person hearings is palpable and often because of time zone differences.
However, many participants accept virtual participation for witnesses with short or less controversial evidence, for witnesses who cannot travel, for smaller cases that cannot justify the travel costs, and so on.
Ultimately, virtual reality hearings will not be affected by these palpable differences.
This is the second of a three part series. Read the first article: Arbitration in the metaverse: not quite ready for prime time yet† The authors invite readers to send comments and questions to: [email protected]which they will cover in a future article.
The Honorable Barry Leon is an independent arbitrator and mediator with Arbitration venue† 33 Bedford Row Chambers (London) and Caribbean arbitrators. He was President of the Commercial Court of the BVI (2015-2018) and is a former Chairman of the Arbitration Board of ICC Canada. Anthony Daimsis, FCIArb has over 20 years of experience in arbitration, sales and contract law. He is a fellow of the Chartered Institute of Arbitrators and a professor of law in the University of Ottawa’s Common Law Section. He is a member of Littleton Chambers’ (London, UK) International Arbitration Group†
Photo credit / Kittiporn Kumpang ISTOCKPHOTO.COM
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