Written by Team Farallon
Cross-examining witnesses in international arbitration involves unique considerations that differentiate it from common law court proceedings. In this context, witnesses typically present written statements as their direct testimony instead of giving live testimony. Unlike traditional court trials that give priority to direct examination, international arbitration hearings place greater emphasis on cross-examination and redirect examination.
The use of witness statements in arbitration allows arbitrators to familiarise themselves with the case before the hearings, gaining a comprehensive understanding of the evidence and key points. However, if a witness is not cross-examined, the arbitrators may never see the witness in person, relying solely on their written statement.
Live testimony carries greater persuasive impact than written testimony, as the witness’ delivery, demeanour, and personal connection can influence the fact-finders’ perception. Calling a witness for cross-examination who has submitted a written statement risks providing them with an opportunity to clarify their position, connect with the arbitrators, and strengthen their credibility.
When deciding whether to cross-examine a witness in international arbitration, it is crucial to carefully weigh the potential risks and benefits. Cross-examining a witness who has submitted a written statement may inadvertently strengthen their position. This factor should be carefully weighed before deciding on cross-examining any witnesses.
Conducting an effective cross-examination requires careful planning, strategic thinking, and a deep understanding of the nuances of international arbitration. In this article, we will explore key strategies and techniques to help you master the art of cross-examining witnesses in international arbitration.
When it comes to cross-examination in international arbitration, it’s crucial to be well-prepared. Preparation means having a solid grasp of the facts, a thorough understanding of the relevant laws, and a clear plan for questioning each witness. However, good preparation goes beyond that—it starts with your theory of the case. This theory should guide every action you take during the arbitration process.
One suggestion is to start drafting a closing argument early on. This helps you work backwards and figure out how to present your case effectively, persuading the arbitrators to accept your theory of the case. If cross-examination is necessary to support your theory, only then should you proceed with it. However, keep in mind that cross-examination shouldn’t be your go-to method if other approaches, like using exhibits or written witness statements, can achieve the same results.
It is important to approach cross-examinations strategically. Treat each witness as a piece of the puzzle, and ask the right questions that will help you achieve your objectives. A general rule of thumb is to know the answers before asking the questions. This way, you can anticipate the responses and tailor your approach accordingly.
It is also a good time to start analysing the witness’ written statements, witness statements, and any supporting documents provided. Identify potential areas of weakness or inconsistencies in their testimony. Develop a clear understanding of the relevant legal principles and facts surrounding the case. Create a detailed outline of the points you wish to address during cross-examination, ensuring that your questions are concise and focused.
During the cross-examination process, it is important to skilfully take charge of the witness in order to steer the proceedings in your favour. To begin, establish a rapport and create a comfortable atmosphere by asking a series of introductory questions. Gradually transition into more direct and focused inquiries intended to elicit the desired responses. Maintaining control involves utilizing closed-ended questions that allow for limited responses, while avoiding open-ended questions that might encourage the witness to provide unsolicited or extensive information.
When dealing with an expert witness, it is important to exercise caution and refrain from directly attacking their field of expertise. Instead, concentrate on several key areas for questioning. First, you can assess the expert’s qualifications, evaluating their credibility and expertise in providing an opinion. Second, explore the factual foundation of the expert’s opinion by inquiring about the specific facts that influenced their conclusions and whether alternative facts would alter their testimony. Additionally, delve into the intellectual basis of the expert’s opinion, scrutinizing the reasoning and methodology behind it.
Moreover, it is beneficial to evaluate the consistency of the expert’s testimony with that of other professionals in the same or related fields. Finally, consider examining personal characteristics that may influence the expert’s credibility as a witness, such as potential biases or conflicts of interest. By employing these strategic approaches, you will effectively challenge expert witnesses while showing respect for their field of expertise and ensuring a comprehensive examination of their testimony.
A leading question is a type of question that subtly or directly suggests the desired answer from the person being questioned. In the context of cross-examination, leading questions serve a specific purpose—they are not intended to uncover new information, but rather to prompt a predetermined response from the witness.
These questions are carefully crafted to ask the witness to confirm or deny a clear, concise, and unambiguous fact. When using leading questions, it is crucial to be well-prepared and have a solid understanding of what the truthful answer from the witness should be.
It is important to note that a well-constructed leading question should elicit a response limited to a simple “yes” or “no.” It should not invite the witness to provide additional details or elaborate on their own narrative. The goal is to obtain a direct and focused response without allowing the witness to veer off course.
During cross-examination, it’s crucial to prevent the witness from repeating their direct testimony unless it benefits your client’s case. To minimize repetition, use short and simple leading questions that limit the witness’ ability to restate information. If repetitions do occur, it’s best to ignore them and continue with your line of questioning.
One situation where repetition may be useful is when the witness makes an inconsistent statement compared to their prior statements. Although such surprises are rare in international arbitration, it’s important to know how to handle inconsistencies. When addressing an inconsistency, make sure it’s relevant to the case and something the witness cannot explain. You can use the inconsistent statement to challenge the witness’ credibility or suggest that their prior statement is more truthful than their direct testimony.
Maintaining control over the witness is crucial. Prevent them from explaining answers or asking their own questions. If a witness tries to explain an answer, ask them if they understood the question. This gives you an opportunity to address potential agendas or misunderstandings. It’s also important to handle witnesses who attempt to make speeches. You can choose to ignore the speech, use it as a starting point for further questions, or repeat the original question to seek a direct answer. Avoid reformulating the speech in your own words, as it may encourage further speeches.
While cross-examination is inherently adversarial, maintaining a respectful demeanour is crucial. Skilled cross-examiners possess the ability to maintain control over the witness while exercising self-control themselves. It is essential to avoid losing composure during the process, as doing so grants the witness the freedom to say anything, potentially undermining your persuasiveness. Moreover, the arbitrators observing the proceedings will take note of your loss of control, which can further diminish your credibility.
When conducting cross-examination, it is crucial to refrain from engaging in arguments or displaying anger towards the witness. This is because maintaining a perception of trustworthiness and credibility is paramount in effectively representing your client. These behaviours play a significant role in establishing and upholding the image of being trustworthy and credible, not only in the eyes of the arbitrators but also among all those involved in the proceedings.
During cross-examination, being an attentive listener is crucial. In addition to asking the right questions, it is important to carefully listen to the witness’ responses and grasp their meaning and significance. Pay close attention to the witness’ responses, observing their body language, tone, and hesitations. This allows you to assess the effectiveness of your questions and determine whether adjustments or follow-up questions are necessary. Be flexible and adapt your approach based on the witness’ answers and the evolving dynamics of the proceedings.
Active listening serves two purposes. First, it ensures that the witness provides direct and relevant answers to your questions. Second, it allows you to evaluate whether the answer necessitates a change in your cross-examination strategy.
While a simple “yes” response may appear straightforward, pay close attention to the witness’ tone and demeanour as they can provide valuable insights. When a witness fails to answer a question, it requires a more nuanced analysis of their motivations. Understanding why the witness didn’t respond can help you anticipate challenges during the examination.
If you believe the witness is being honest but simply didn’t answer, you can attempt restating the question to encourage their cooperation. If the witness then answers properly, it confirms your initial impression. However, if the witness continues to evade the question, it indicates their unwillingness to cooperate, and you should consider adjusting your approach accordingly.
Even an evasive and uncooperative witness can still serve your overall objective. Their repeated evasions will be observed by the arbitrators, which can be used to discredit their testimony.
Mastering the art of cross-examination in international arbitration requires meticulous preparation, strategic questioning, and effective courtroom skills. By following the best practices outlined in this article, legal practitioners can enhance their ability to conduct impactful cross-examinations and present compelling arguments in support of their clients’ positions. A well-executed cross-examination can significantly influence the outcome of international arbitration proceedings and contribute to the attainment of a favourable resolution.
If you require assistance with cross-examination techniques, procedures, or any other matters related to arbitration, our law firm is here to help. With our expertise in handling cross-examinations and a comprehensive understanding of arbitration issues, we are well-equipped to provide you with the guidance and support you need.
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