Thursday, August 27, 2020

Court Rejects Legal Challenge to Virtual FINRA Arbitration Hearings

FINRA just administratively postponed live arbitration hearings, again, and it is a virtual guarantee that they will administratively order virtual hearings in all cases.

Of course, they will need a rule change, and SEC approval, which will take months, but it is going to happen. Arbitration hearings have been postponed for months, and the backlog is huge.

There are serious concerns regarding virtual hearings, and while some of the improvements in virtual conferencing software have addressed those concerns, they abound. For example - showing a witness documents on cross examination. It is very difficult to be cross-examined about a multipage document on a computer screen. When we do hearings in person, the witness can read the entire document, or at least skim through it, before being asked about a particular page or paragraph. With conferencing software, the examiner is displaying the page he wants to ask about. The witness does not have the entire document.

Of course, that is resolved by sending the witness the documents in advance, but that undermines cross-examination and witness impeachment strategies.

There are other issues, but suffice to say most, if not all attorneys do not want to conduct trials by video conference.

But it looks like we may not have a choice. In Boca Raton, Florida, when an arbitration panel decided to hold a hearing virtually, the defendant filed in court to halt the proceeding, arguing that the hearing was too complex  — the witness lists included dozens of witness and at least six experts — and included customer-claimants who required an English translator.

The court denied the injunction, ruling that the hearings could proceed virtually, according to Financial IQ.

Now we will have to deal with arbitrators, and perhaps even witnesses, forgetting that they are at a hearing, and walking away from the screen, as one juror did in a virtual jury trial a few months ago.

https://financialadvisoriq.com/c/2851663/351723/court_rejects_legal_challenge_virtual_finra_arbitration_hearings