If you have taken legal course of action for past due invoices, and the case is dragging on, you can be sure that this is caused by the need to call some witnesses. Since in an electronic court there is no need to have a physical location where this could be done, we can choose among written statements, teleconference or videoconference. Which option should be embraced in Ultima Ratio given that our cutting edge electronic system is secured in a way which is comparable to those used in banks?
In seeking to answer to this difficult question we were unexpectedly aided by a Member of Court Council, Professor Bob Dorf from Columbia Business School. Professor Bob Dorf is a co-author of the best-selling book “The Startup Owners’ Manual”; he is also the best known advocate for Customer Development Model for business development. Applying his techniques and advice, we found that:
- our interlocutors approach videoconferencing with reserve. They believe that a video connection between unrelated professionals may still be an unreliable solution. Everyone knows that setting up a video connection takes some time. There are various standards with different specifications. Besides, in accordance with IT policy adopted by many companies, nothing can be installed in company servers without authorisation. Hence video software must earlier be approved and installed by the company IT specialist. Besides, configuration of such software is not easy. Then finally when everything seems to be ready, and the parties think they may proceed – it turns out they still have to wait because something is wrong with the camera or microphone. Such situations can be highly irritating for legal professionals and managers. As a rule, they have low tolerance for unproductive struggle with ineffective computer equipment;
- our interlocutors most commonly communicate via phone and this is how they would like to conduct long-distance hearings. People like to talk on the phone, seeing the device as a normal element of their professional and personal life and a tool for handling most matters. Besides, technical problems are rarely encountered during phone calls;
The most important conclusion is that as long as no technical solution is available on the market to enable simple and reliable video calls in browser programs, our users will approach such options with reluctance. In fact, even if such solutions are developed, some users will continue to avoid them, more or less consciously.
Equipped with this knowledge we decided that in our court witnesses will be interrogated by phone. We have planned the procedure in such a way that our system will automatically set up a connection, and then it will record and save the entire conversation in the case profile. Besides teleconferencing, there will also be the option of written statements.
However, there is still a question whether this way of proceeding will not impair the fairness of the litigation. After all an arbitrator should directly come in contact with the witness in order to form an opinion about the subject of the dispute. Audio and video contact seems to be more suitable for this than a phone conversation alone.
Let us, however, look at this problem from the viewpoint of a witness.
It is necessary to make sure a witness has a complete freedom of expression so that the hearing carries some sensible legal weight. Yet, let us imagine that some witnesses are apprehensive to install unknown software at their computers in order to hold a one-off videoconference. Take some technical problems occur during the videoconference. The participant’s voice or appearance are distorted by technology. The connection is broken in the least suitable moment. The participant is anxious whether or not they will correctly hear the question, grasp any subtlety therein, or manage to adequately convey their opinion and ideas in the conditions which are far from being natural…
In fact, as a result some witnesses may refuse to testify in such conditions. This indeed would be highly undesirable from the viewpoint of the fairness of arbitration. We must remember that in arbitration courts witnesses cannot be forced to testify, which is the case in common courts. Therefore, if the testifying procedure is excessively burdensome and unreliable for technical reasons, testimonies may carry limited credibility and some witnesses may refuse to cooperate. Consequently, the parties’ right of defence in the proceeding may be vastly limited. Phone calls do not pose such problems.
Thank you Professor Bob Dorf!