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GAR Live Lookback: Istanbul - the one with the mock cross-examinations

Sarah Steven

05 June 2018

GAR Live Lookback: Istanbul - the one with the mock cross-examinations

“To the extent possible, give the tribunal the impression that it’s a relatively simple point, and this expert is using expertise to cloud […] straightforward questions”. This tip – for handling an uppity expert - was one of several on advocacy at GAR Live Istanbul last year, 2017, from a session that featured not one but two mock cross-examinations.

For some time, audiences have been asking GAR to include mock-arbitration segments in GAR Lives. In Istanbul, in 2017, we did for the first time.

“A mock arbitration – the do’s and don’ts of cross examination” filled the final slot in the day, usually reserved for a debate or a GAR Live inquisition.

Moderated by Mark McNeill, of Shearman & Sterling, it featured Duncan Speller, of WilmerHale, and Steven Hammond, of Hughes Hubbard & Reed, as advocates; Paul Stothard of Norton Rose, with McNeill, as commentator; and Andrew Wynn, senior managing director at FTI Consulting, as the expert witness.

The session pivoted around two separate cross examinations – enacted for the benefit of the 120 strong audience mostly of Turkish lawyers from private practice and in-house.

In one, Wynn ‘plays’ the expert in a dispute between a coffee importer and its main customer. The chain has terminated the importer at short notice soon after the importer has expanded to match the chain’s growth.

In the other, Wynn is opining on damages owed under a lump-sum contract. At issue: has he used the correct price for one of the inputs, a so called “monster machine”?

Speller and Hammond demonstrate the art of moving the expert where you want him to go.

The fact patterns were borrowed from larger scenarios that WilmerHale and Hughes Hubbard have used for internal training. The role play was entirely unrehearsed to ensure authenticity; Wynn didn't know what questions were coming until they were asked. He had to respond in real time, as in a genuine case.

Before and afterwards, the panel dissect the art of cross examination.

Collectively, they explain the importance of planning; of reading the tribunal well, so the advocate knows when to step on the gas, and when to throttle back; and how to “shackle” the witness, using documents and closed questions. They also discuss some of the mistakes rookies make: such as going one question “too far” and opening a gap through which the expect can escape.

Some of the choicer soundbites include:

  • “Don’t have a script, have a plan”,
  • “A well-crafted cross is simply a speech punctuated by tag questions”, and
  • “Every expert is like a hand-grenade. You have to keep your hand tight around them, or [she] will blow it off”.

And, right at the end, they squeeze in a discussion of what to try if the expert is proving a slippery customer and resisting being boxed in, in response to an audience member's observation that this is what tends to happen in real life.

The following is an edited transcript of the session.

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Mark McNeill: Welcome to session 4 on the cross-examination of witnesses. It’s late in the day and we realise that you may be getting tired. So we will take counter-measures to keep you alert and awake. We will be doing a little bit of mock cross-examination, which should be lively, and we will have a witness who will sit in the chair and answer questions.

So, let me introduce our panel of speakers in the order they will be presenting. To my immediate right is Paul Stothard, a partner in dispute resolution at Norton Rose in Dubai. He has vast experience in international arbitration in a number of subject-matter areas. To my immediate left is Duncan Speller, a partner at WilmerHale in London, who is equally comfortable in international arbitration and English High Court litigation. At the end of the table is Steven Hammond, co-chair of the international practice at Hughes Hubbard in New York. He is a practitioner and sits as an arbitrator, including in ICSID cases.

Duncan and Steven will be doing a mock cross-examination of Andrew Wynn – sitting at the end of the table – who is from FTI Consulting in London. Andrew will not know all of the questions that he’ll be asked, so it will be  live and dangerous just as a cross-examination should be.

Two quick points to frame the topic before we get going: the first is that some of you have decades of experience in cross-examination. But for many of you, cross-examination is entirely alien; a factor of being from a civil law jurisdiction or another jurisdiction that doesn’t have cross-examination as part of its practice.

For those in the latter category, it is absolutely essential you develop this skill set. Cross-examination requires the examiner to balance a lot of things at the same time, to listen carefully to the answers the witness gives and to read the witness. Is this witness telling the truth? Are they saying something that’s not quite the truth? You’re looking at the tribunal: are they following your cross-examination? Do they understand what point you’re making? So, all of these things you’re balancing at the same time and, for witnesses, it’s an intense experience. What’s less known is that it can be quite nerve-racking for the examiner too; quite difficult to be listening so intently, and to follow up with questions and do an effective cross-examination that gets your story across.

The second major point is this difference in legal culture. In international arbitration, in advocacy generally, the idea is that you want to persuade your tribunal to see the world your way, and ultimately to rule in favour of your client. Everything you do is in the service of that goal. I make this point because an effective cross-examination before one tribunal may be very ineffective before another. I’ve seen an aggressive US litigator cross-examine a witness in a merciless way and thought he did a fantastic job. But then the tribunal, which was civil law trained, was horrified at what they saw and went backwards.

So, the aim is to adapt your cross-examination to your audience to achieve your goals. With that, I turn the floor over to Paul Stothard to provide some preliminary comments on preparing for, and executing, a successful cross-examination.

Paul Stothard: I’m going to provide further context so you can make the most of the mock cross-examination by looking at the hard work the advocate puts into preparing for cross-examination – of this most sexy of legal topics, the least sexy aspect. What I want you to bear in mind is the purpose of cross-examination and, if there’s time, we’ll go into some of the golden rules of the cross-examination process.

So, what is the purpose of cross-examination? I’ll start with the first and most obvious. The purpose is to strengthen your case by reference to the key facts and evidence, and to attack the opponent’s case. That sounds obvious, but in international arbitration we have to bear in mind the performance that is going to be put on before the tribunal. As is now universal practice, there will be little or no direct evidence. As advocate you barely have any opportunity to put your positive case forward, but you do have an opportunity to attack the opponent’s case. You can tell the story through cross-examination and there’s no better way of educating your tribunal than bringing that story out through the mouths of your opponent’s witnesses under cross-examination.

You may also find, depending on the legal culture you’re from, that you are under an obligation to put certain facts to the other side’s witnesses; for instance, if you want to accuse them of being wrong, biased and so forth. In common law culture it is considered necessary, or at least fair game, that in doing this, you will be seeking to expose the contradictions and inconsistencies in the opponent’s case. That makes your case appear more persuasive to the tribunal.

So, how does an advocate go about preparing? I’m an English solicitor. If you’d asked me this 20 years ago, I would have said: “I prepare for cross-examination by tying all the evidence up in a red ribbon and giving it to Duncan, who is a barrister. That was preferable in my view because, if the case went well, I would get credit for picking Duncan; if it went badly, I could blame him. Either way I’d have continuity with my client and that’s how English law firms got so big. But these days, in international arbitration, there is an expectation that your chosen lawyer will also be your chosen advocate.

So, I have learnt the art of preparation and it starts with understanding your case theory; again, an obvious point, but one worth bearing in mind. Your case theory is the key points of law and propositions of fact that you need to demonstrate in order to persuade the tribunal that your case is to be preferred. Once you are clear about that, you will be able to take your key list of factual propositions, both good and bad, and by analysing who the witnesses are, identify which of those issues each witness or expert can speak to. To both draw forth the good points and neutralise the bad you need the witnesses to speak to. You’ll also have a vast documentary record that will aid you in that exercise and sometimes be the most critical points that you will put to the tribunal through the mouths of your witnesses.

You obviously need to learn as much as possible about the witnesses that you’ll be cross-examining: the role they played; who they are; what their character is; whether they have the expertise they purport to have; and whether they were actually there to speak to the facts they’re speaking to. For example, it’s often the case in commercial disputes that the people who caused the mess will have been fired, and you end up with no witnesses at all. I see this in the Middle East a lot. What you may find with your opponents’ witness statements is that they’re putting into the mouths of witnesses facts they know nothing about, mainly based on the documents. That is a fantastic opportunity for cross-examination because, although those facts may be right, they’re coming from the wrong witnesses. That’s why I end with this point: you must be very careful about deciding which witnesses to call for cross-examination.

If you do your cross-examination plan right, you will end up with something that looks like this: a plan that will draw out the good points and make them powerfully; something that will tell the story; that will neutralise the bad points where possible; but, in both cases, something that ties in with the evidence. Such that you can control the witness when you question him or her and challenge any unwelcome answers by reference to the documents. Perhaps the most important point when you’re planning is the submissions that you will seek to make in closing. You could even start a checklist about the points that you make in your closing submissions when you think about the questions and the answers that you want to draw from any given witness.

If you Google “tips for cross-examination” you’ll come up with a list like this, so I’m not claiming authorship. But these are the principles you are asked to bear in mind. First: never ask a question to which you don’t know the answer. I think that’s probably the one you have to treat with the most caution because you’re not going to get very far asking questions if you know the answers to everything. But you should have a fair idea on the balance of probabilities of what’s going to be said and, to the extent that the witness departs from expectations, you need to draw them back to the record so that you can put your case forward by that means.

It’s also said that you should ask closed questions; I won’t go into that because it will come up again. Keep questions short: one fact in each. Make the proposition that you want to make and then take the witness to the documents. There’s the famous saying of always knowing when to sit down and shut up. Don’t ask one question too many; there’s the famous Abraham Lincoln example. It is said that he asked a witness: “How did you know that my client bit the man’s nose off when it was dark and you couldn’t see him?” And the answer, apparently, was: “Because I saw him spit it out”. Whether that’s true or not, I don’t know. What you do need to know is when to give up if the witness won’t answer the question. Indeed, a witness who won’t answer the question can be as useful as a witness who will, because that witness comes across as evasive.

Another saying rolled out in English Courts is: “you don’t have to be cross when you cross-examine.” You should be courteous and polite. Some clients are puzzled when you aren’t beating up the other side’s witnesses, but tribunals do not welcome that. The most effective way of cross-examining is courteously and calmly in almost all circumstances. Avoid the speech. Keep an eye on the transcript. It doesn’t matter what the witness says if it doesn’t go into the transcript because that’s what the tribunal is going to base the award on. I’ve had countless arguments with opposing counsel about whether the transcript is accurate or not for precisely that reason. You can’t beat keeping your eyes on the transcript in real time on the day. Don’t have a script; have a plan. Listen to the answers and react to them. If you’ve got a script, you’ll be throwing it away after the first few minutes.

Mark McNeill: Before I turn the floor over to Duncan, shall I set up the hypothetical? Duncan will talk in general terms about some techniques for cross-examination, building on what Paul said, and then do some mock cross-examination based on the hypothetical. The facts are quite simple. It is a coffee importer and distributor that enters into a long-term, exclusive supply contract with a large coffee chain. The chain expands from 200 to 500 stores after acquiring another coffee chain. In the contract there is a termination clause – without cause for six months – but after the coffee importer invests millions of dollars in new roasters to meet the expanded demand, the coffee chain terminates the contract on only one month’s notice for cause, claiming that the quality of the coffee is bad and customers are complaining. With that, I turn the floor over to Duncan.

Duncan Speller: I couldn’t resist the temptation to start with a quote and it comes from Agatha Christie’s Murder on the Orient Express. The quote is: “If you confront anyone who has lied with the truth, he will usually admit it, often out of sheer surprise. It is only necessary to guess right to obtain the desired result.” My response to that is: “If only life were so simple.” With those thoughts in mind, I’m going to do three things. Firstly, touch on some themes as to the purpose of cross-examination. Secondly, offer some thoughts on strategy and tactics in cross-examination. And thirdly, I’ll cross-examine Andrew who will act as the accounting expert in this hypothetical scenario.

Firstly, the purpose of cross-examination. It’s important not to be too ambitious. You may have seen TV dramas in which the cross-examiner reduces the witness to a quivering wreck. That’s really not the purpose of cross-examination. The purpose is to elicit testimony that will look good on the transcript and that you can tie together in your post-hearing submission. So, you want to draw out areas where the witness or expert doesn’t have experience in order to discount their credibility. You may want to draw their attention to documents to which they don’t have good answers. But your primary focus is on getting evidence on the record for the transcript.

You also – this is a subsidiary purpose – want to influence the tribunal’s perception of the witnesses or experts. You may want the tribunal to think the other side’s expert is not quite as independent as he’s meant to be; that he’s pushing his client’s case too hard. Therefore, it will prefer the evidence of your expert.

Moving to my second theme: four practical tips for cross-examination. The paramount tip is to listen. It’s important to listen to the answer because the witness will often give you something incredibly useful that you hadn’t expected. The witness may not appreciate why it’s useful, but you may be able to draw them out on that. The worst thing you can do in cross-examination is to stick rigidly to script, come what may, because you may lose an opportunity to draw out the witness and get some great testimony on the transcript.

The second tip is to think strategically about how you sequence your questions. I find when cross-examining that what takes up the most time is working out the order in which to put the questions and which order is going to be most effective. For example, you may have questions where the witness is likely to agree with you, and some where the witnesses might push back more. You can think about it strategically: whether you might want to be very friendly to the witness at the start; get them agreeing with all these propositions so you rack up the concessions you want on the transcript. Suddenly, when you’ve got what you want, you can turn from good cop to bad cop and confront them. It’s a strategic decision as to how you structure it. As cross-examiner, you’re in control of the process and know where you’re going: the witness doesn’t. You may want to get a witness to say things that are completely incredible when you have a document in your back-pocket that contradicts what they say. So you may ask them general questions – without reference to that document – and get them talking, talking, talking. And you take them back to this document and, having locked themselves in, they’ve lost credibility.

Third tip: watch the tribunal. No matter how anyone tries to mask it, body language can be hugely revealing, and people generally can’t conceal their body language even in a tribunal. You will get a sense of whether the tribunal is more annoyed with you or the witness. If they’re annoyed with you, it’s probably a good sign to move on. If they’re annoyed with the witness, you can hammer that back. If you have a sense the witness is losing the tribunal because he is not giving direct answers, you can really emphasise that. At the end of the day, your goal is to persuade the tribunal and monitoring body language is very important.

The fourth and final point, particularly in international arbitration, is time management. Increasingly in international arbitration, hearings are much shorter than in US or English Court proceedings. There’s normally a chess-clock system in which each side has equal time and, once it’s used, it’s gone. So, it’s important to be focused in your questions. In that respect, cross-examination in international arbitration is quite different to cross-examination in English Court proceedings. In English Court proceedings there’s a principle that you have to give the witness an opportunity to agree or disagree with your case. In international arbitration, because cases are more constrained, there’s more a focus on what the witness can usefully say that’s going to assist the tribunal, rather than needing to put everything to the witness.

With those thoughts in mind, let’s move onto the fun part. I will cross-examine Andrew, who will be Mr Clement, the Claimant’s independent accounting expert.

Good afternoon Mr Clement. My name is Duncan Speller and I’m going to ask you some questions on behalf of the Respondent, Café & Me. Mr Clement, you have no legal training, do you?

Andrew Wynn (Mr Clement): No, I do not.

Duncan Speller: You make various assumptions in your expert report as to what the legal test for damages is, don’t you?

Andrew Wynn (Mr Clement): Yes.

Duncan Speller: Well, if we refer for example to paragraph 17 of your expert report, you refer to the appropriate test, don’t you?

Andrew Wynn (Mr Clement): Yes.

Duncan Speller: Those assumptions as to the legal test were given to you by the Claimant’s lawyers, weren’t they?

Andrew Wynn (Mr Clement): Yes, they were.

Duncan Speller: You have no independent basis to know whether those assumptions are accurate or inaccurate, do you?

Andrew Wynn (Mr Clement): Are you referring to the assumptions in paragraph 17?

Duncan Speller: I’m referring to the assumptions you make throughout your expert report, including in paragraph 17, as to the legal test for the award of damages.

Andrew Wynn (Mr Clement): Yes, I do not have any independent basis for those tests, although if with referring to paragraph 17, in respect of that legal test, I consider it to be appropriate as a matter of economics, and it’s also the legal test that the opposing expert has applied. So, I don’t think there’s a significant issue there even if you do consider it to be a matter of law.

Duncan Speller: You say you consider the legal test to be appropriate as a matter of economics. You have no independent basis to know whether it is right as a matter of law, do you?

Andrew Wynn (Mr Clement): Yes, that’s correct.

Duncan Speller: Mr Clement, prior to your instruction as an expert, you had no involvement in the facts giving rise to this dispute, did you?

Andrew Wynn (Mr Clement): No, I did not.

Duncan Speller: Your knowledge of the facts giving rise to this dispute comes from what the Claimants and their witnesses have told you, doesn’t it?

Andrew Wynn (Mr Clement): Yes, that’s correct.

Duncan Speller: For example, in paragraph 18, you refer to discussions with Mr Demasmel; Mr Demasmel is one of the Claimants’ employees, isn’t he?

Andrew Wynn (Mr Clement): Yes.

Duncan Speller: Mr Clement, in paragraph 18 of your witness statement, you say that you assess loss on the basis that the contract would not have been terminated until December 2015, don’t you?

Andrew Wynn (Mr Clement): Yes.

Duncan Speller: You were aware are you not, that the Respondent’s case is that it would have had a right to terminate the contract three years earlier in December 2012, aren’t you?

Andrew Wynn (Mr Clement): Yes, I now understand that to be the case after I received the Respondent’s expert report.

Duncan Speller: But you have not assessed damages on the basis that the contract could have been terminated in December 2012, have you?

Andrew Wynn (Mr Clement): No, I have not.

Duncan Speller: So, if the Respondent is right, you have given the Tribunal no basis to quantify any loss, have you?

Andrew Wynn (Mr Clement): I agree that I haven’t given the Tribunal a basis to quantify loss up to the end of 2012 in my expert report, but I’m very happy to do such calculations on a different basis; and I think that this is illustrated in the joint statement where I go through, with the other expert, the various points where we agree and disagree. So I’d be very happy to do those calculations if required.

Duncan Speller: Mr Clement, you may be very happy, but I’m talking about what evidence is on the record now and, in terms of your report now, if the Tribunal determines that the contract could have been terminated in December 2012, there is nothing in your report that gives the Tribunal a number for the loss, is there?

Andrew Wynn (Mr Clement): I agree that the number isn’t given, although it is not a complex calculation to move from what I’ve done to that assumption.

Duncan Speller: It may not be a complex calculation, but it’s not one you’ve done, is it?

Andrew Wynn (Mr Clement): No.

Duncan Speller: Mr Clement, you’re aware that, as an expert, you have a duty of independence to the Tribunal, aren’t you?

Andrew Wynn (Mr Clement): Yes.

Duncan Speller: And you’re aware that, as part of that, you’re not entitled to accept the Claimant’s case at face value, aren’t you?

Andrew Wynn (Mr Clement): Yes, I appreciate that.

Duncan Speller: But you’ve only quantified loss on the basis that the Claimant’s case is right, haven’t you?

Andrew Wynn (Mr Clement): You’d have to refer me to the specific point you’re going to?

Duncan Speller: I’m referring to the discussion we’ve just had; there is a dispute as to whether termination took place in December 2012 or December 2015. You’ve only assessed loss on the basis that the Claimant is right and the termination couldn’t have taken place until December 2015, haven’t you?

Andrew Wynn (Mr Clement): Yes. I appreciate that this is what I’ve done, but it’s also the basis that I think is most likely.

Duncan Speller: If you were an independent expert, you would have also quantified loss on the assumption that the Respondent’s case might be right, wouldn’t you?

Andrew Wynn (Mr Clement): I don’t agree with you that whether or not I’ve calculated on that basis taints my independence in any way.

Duncan Speller: So, you believe, don’t you, that you can be independent but just take the Claimant’s case at face value without considering the Respondent’s case; correct?

Andrew Wynn (Mr Clement): I don’t think that’s what I’ve done.

Duncan Speller: Mr Clement, you refer, again in paragraph 18, to considering that, on the balance of probabilities, Café & Me would not have terminated the agreement before the expiration in December 2015. When you say “balance of probabilities”, you mean, don’t you, that you’ve weighed the possibility that the agreement may have been terminated against the possibility that it may not have been; correct?

Andrew Wynn (Mr Clement): Yes.

Duncan Speller: And you accept that there is a possibility that the agreement may have been terminated in December 2012?

Andrew Wynn (Mr Clement): Yes, I think that’s implicit in that assumption, yes.

Duncan Speller: But if you’ve weighed that against the counter-possibility and considered that it is more likely that the agreement would not have been terminated; correct?

Andrew Wynn (Mr Clement): Yes.

Duncan Speller: Mr Clement, are you aware that it’s the role of the Tribunal to determine on the balance of probabilities what would have happened in fact?

Andrew Wynn (Mr Clement): I think I was aware of that type of principle.

Duncan Speller: It’s not the role of a quantum expert to opine on what would have happened in fact in a particular case, is it?

Andrew Wynn (Mr Clement): I think what I’ve done is do my best to try to say what I think the most likely assessment of loss is; and that’s what I’ve calculated in my report.

Duncan Speller: But you formed an assessment not of just the assessment of loss, but what would have happened in fact, haven’t you?

Andrew Wynn (Mr Clement): I think that is true, but I think there’s always a myriad of possibilities as to what could happen and I don’t think within the scope of what I was doing here – a relatively short 10-page report – that I could really cover that myriad of possibilities. As I said some time ago, I’d be very happy to do calculations on a different basis. There’s a number of refined differences between me and the Respondent’s expert as set out in the joint statement, and I’d be happy to do calculations if there are different findings in fact.

Duncan Speller: And you told us at the start of the cross-examination, didn’t you, that you have no experience of the facts giving rise to this dispute prior to your instruction as an expert?

Andrew Wynn (Mr Clement): Yes, that’s correct.

Duncan Speller: So, you’ve expressed a view as to what would have happened in fact, that you’re entirely unqualified to express, haven’t you?

Andrew Wynn (Mr Clement): I just think it’s commercial common sense, to be honest.

Duncan Speller: And you’ve usurped the role of the Tribunal in terms of forming a view of what would have happened on the balance of probabilities, haven’t you?

Andrew Wynn (Mr Clement): I couldn’t comment on whether that’s fair or not, to be honest. I don’t think it’s my position.

Duncan Speller: An independent expert wouldn’t have strayed beyond the scope of his expertise in that way, would he?

Andrew Wynn (Mr Clement): I disagree with the implication that I’ve done that. Of course, overstepping the mark is overstepping the mark.

Duncan Speller: Mr Clement, you say your view is simply a matter of common sense. You give four reasons for forming that view at paragraph 18; let’s look at those briefly in turn. Reason 1: you refer to the history of the relationship between Fair Coffee and Café & Me. You have no direct personal experience of that relationship, do you?

Andrew Wynn (Mr Clement): No.

Duncan Speller: Factor 2: you refer to the success that Fair Coffee’s products have achieved for Café & Me. You have no direct personal experience of whether those products were successful or not, do you?

Andrew Wynn (Mr Clement): I do not, no.

Duncan Speller: Factor 3: you refer to the previous renewal of the agreement on 31 December 2009. You have no direct personal experience of the reasons why the agreement was renewed in December 2009, do you?

Andrew Wynn (Mr Clement): No, I have no direct personal experience.

Duncan Speller: Factor 4: you refer to your discussions with Mr Demasmel. As we’ve discussed before, Mr Demasmel is the Claimant’s employee, isn’t he?

Andrew Wynn (Mr Clement): Yes.

Duncan Speller: So, you’re simply relying on what the Claimant’s employee has told you?

Andrew Wynn (Mr Clement): I think I’ve made it quite clear in my report that I’m relying on those facts. If those facts turn out to be untrue, then of course that would affect my opinion.

Duncan Speller: So, in conclusion, you have no direct personal experience that qualifies you to give evidence on any of the four factors you rely on, have you?

Andrew Wynn (Mr Clement): I’m not sure that is fair. I agreed with you that I don’t have direct experience of those factors, but I do have a lot of experience which I think goes to what the implication of those facts would be as a matter of commercial common sense.

Duncan Speller: Mr Clement, these factors are the four factors you give in your own report as the reasons for your conclusion, aren’t they?

Andrew Wynn (Mr Clement): Yes.

Duncan Speller: And you accept that you have no direct personal experience of any of those reasons you give, don’t you?

Andrew Wynn (Mr Clement): Yes, that’s correct.

Duncan Speller: I have no further questions.

Mark McNeill: Thank you very much. For our panellists, if we do a quick post mortem of the cross-examination, we saw a very skilled and seasoned barrister directing the questions. Is the tribunal more annoyed with Duncan or is he more annoyed with Mr Clement? Any comments from the panellists?

Steve Hammond: I’d congratulate the witness; you could tell certainly he was a professional expert because he maintained a very calm demeanour throughout the questioning, which was admirable. One point I’d say about Duncan is that, when he didn’t get the answers that he wanted the first time, he found another way of summarising his position and putting it to the witness and got a straightforward “yes” at the end. You can guarantee that’s the “yes” that’s going to go into the post-hearing submissions.

Mark McNeill: One of the hallmarks of a successful cross-examination is simplifying something which is complex and making sure that the message you’re sending to the tribunal is clear. One of the messages upfront was that the expert has set up his case on the basis of the claimant’s case, and had not considered the alternative. Then he’s forced into the position of suggesting that he thinks that’s the more likely scenario and there are myriads of possibilities, but he couldn’t calculate them all. The second major point seems to be that he wasn’t there for the facts; he can’t testify first-hand about many of these things and they’re just all assumptions that he has taken from the party that has informed his view. He can’t testify first-hand about their truthfulness. I thought those were extremely effective ways of getting those messages across in a simple way. I agree entirely, Duncan, that when you didn’t get the answer you wanted, you backed up and asked it in another way until you rang the bell, so to speak, and got the answer you want. Any other comments?

Duncan Speller: One point I worked in, which I probably wouldn’t have done in practice, was questioning his independence. I think it was a bit gratuitous in the sense that you probably don’t need those to make the point and it is better left implicit.

Mark McNeill: Andrew - Mr Clement – do you have any comments?

Andrew Wynn (Mr Clement): No.

Mark McNeill: Still shell-shocked from the experience? With that we’ll turn to Steve Hammond, who will proceed on the basis of a different fact pattern which has to do with monster machines, as I understand it. We’ll provide some general commentary first and then cross-examine the witness in a similar fashion.

Steve Hammond: We thought it would be helpful for you to have the benefit of not one, but two, mock crosses. I propose to proceed in three parts. First I’d like to take a couple of minutes to highlight some things that I think it would be helpful for you to focus on so that you can get a better takeaway. In many ways this will be a pop quiz on what you heard earlier about golden rules and the like. Then I will give you an altered fact scenario to help you focus on the narrowest issue I could find to perform a mock cross. Then, thirdly, we will do the cross itself.

One thing it will be helpful to note is just how many of the questions are actually affirmative statements combined with a tag question, such as “isn’t that right?” or “correct?” It’s sometimes said that a well-crafted cross is simply a speech by the examining attorney punctuated by these tag questions. I am hopeful that you will be able to note how documents are used to limit speeches by the witness, and you should also note that witness statements, of course, are documents. They are a written record that can be used to keep control of the witness. As Duncan mentioned, control is really what it’s all about on cross.

One thing that you want to be thinking about is whether the examination at some point has progressed to a bridge too far – this is the problem of one question too many – and, in my particular case, I am bringing this to your attention now because I am intentionally not intending to ask for the ultimate conclusion from this witness. My thinking is that that’s for the brief: I’m here to create the record, to discuss the evidence. I don’t need the witness to embrace my opinion now that I have brought certain facts to his attention; good expert witnesses and, perhaps more dangerously, bad expert witnesses will never embrace that ultimate conclusion.

I would also suggest that it would be helpful for you to think about whether the overall cross-examination is more like a Hollywood movie or a trip to the dentist. We tend to get our pre-conceived notions of cross-examination from movies and television shows, but in fact the art of cross-examination is a much more plebeian drilling down like a dentist, one step at a time, to get on the record that you want. You might want to ask yourself: “Is the examiner ever more expert than the expert?” Again, this helps you to get a better view of the respective roles. An experienced counsel may sometimes think that their role is to get into the hearing and argue with the expert; whereas, in fact, the expert is there to give an opinion, counsel is there to develop the record and does not need to show – nor should he want to show – that he is in fact an expert. It’s really just counter-productive. Lastly, we heard something about ugly Americans and the aggressive American style, but some of us would submit to you that a good cross-examination doesn’t carry a passport. I will let you be the judge of that.

We’re now going to put Andrew back on the stand. He is the Claimant’s damages expert and has produced a 356-page report which concludes the Claimant has suffered US$356 million in damages. It’s important that you understand that what you are hearing is a tiny piece at the end of the process. The cross-examination is the play; you’re going to hear a five or 10-minute play but, in any case of value or complexity, there will have been hundreds of hours spent developing the facts, mastering the record, understanding how it all fits together before you even open your mouth. Now, in this particular case, we would probably have 10 lines of cross, given the fact that we will have very little time at the hearing. In this hypothetical, we have concluded that there is one big point – the “monster machine” that Mark referred to. Since this is a presumed lump-sum contract, for Andrew to calculate the damages, he needs to take the lump-sum price of the contract and deduct the Claimant’s cost of performance. One of the major elements of the cost is the monster machine, which as you will see in his report, is valued at US$35.6 million. That’s what this cross-examination is all about.

Since this witness is expert, he’s not going to be giving fact evidence and it shouldn’t surprise you that he uses information he got from his client as the basis for his assumption of the US$35.6 million. There will be another exhibit – which will be used to impeach the witness in the context of his client – in the context of showing that the number is really $40 million more, and therefore a larger number should’ve been deducted from the lump-sum price and, ergo, less damages. So, with that in mind, let us remind the witness: Mr Wynn, you understand you’re still under oath?

Andrew Wynn: Yes.

Steve Hammond: I’d like to turn, if I could sir, to a separate topic now and you have prepared the damages report in this case, correct?

Andrew Wynn: Yes.

Steve Hammond: Is it correct sir that, on page 2 of your expert report, you have expressed as your conclusion that, based on the scope of our review and the analysis set out, that it’s your opinion that the economic loss suffered by the Claimant in connection with the termination of the agreement is US$365 million, correct?

Andrew Wynn: That’s correct.

Steve Hammond: And is it correct that you then indicate that you have summarised the breakdown of that US$365 million in Schedule 1 to your report?

Andrew Wynn: Yes.

Steve Hammond: If I could show you for a moment Schedule 1 to your report. In that document you set out the total amount due under this lump-sum contract as US$750 million; correct?

Andrew Wynn: That’s correct.

Steve Hammond: And you deduct, if I understand it, from that amount the cost of performing the contract is US$385 million in your opinion; correct?

Andrew Wynn: Yes, that’s what I deduct.

Steve Hammond: And, therefore, as we can see on the bottom of Schedule 1 you conclude, based on that arithmetic, that its Claimant’s damages claim, its lost profits, should be US$365 million; correct?

Andrew Wynn: Yes.

Steve Hammond: And is it also correct sir, if we look at the middle of the page, that you have provided in your report a breakdown of the costs of performing the contract? That’s in Section 4; correct?

Andrew Wynn: Yes.

Steve Hammond: That’s the numbers which, when we agglomerate them, total the US$385 million, correct?

Andrew Wynn: Yes.

Steve Hammond: And in item 8 of Section 4, you list the cost of a monster machine; that’s one of the components that was specified under the contract, I believe; correct?

Andrew Wynn: Yes.

Steve Hammond: You list the cost of that machine at US$36.5 million, correct? Let me help you out if I can. Let me show you Exhibit 23 to the reply witness statement of the Claimant’s project manager. This is a pro-forma invoice, dated 15 June 2012, addressed to the Claimant to the attention of the project manager and it indicates that, for the supply of one monster machine, we see a figure of US$36.5 million. Have I got that right?

Andrew Wynn: Yes, I see that.

Steve Hammond: And is it indeed the case that this was the information that was provided to you by the client for the purposes of you preparing your calculation and your reliance on the US$36.5 million?

Andrew Wynn: Yes. I understand that this is the supporting exhibit to the opinion of the project manager in his reply witness statement.

Steve Hammond: And, of course, you’re not testifying as to facts here, are you Mr Wynn?

Andrew Wynn: No, I’m not.

Steve Hammond: So, that’s a fact that your client has instructed you to assume on the basis of your independent review of some of this background documentation, including Exhibit 23, in concluding that you should include that number in your calculation, correct?

Andrew Wynn: Yes.

Steve Hammond: Thank you. Now let me turn if I could, sir, to Respondent’s Exhibit BB3; that’s an extract of field minutes, dated 15 December 2015, that have been signed and initialled by the project manager of the Claimant and the Respondent’s interim president. Do you see that document sir?

Andrew Wynn: Yes.

Steve Hammond: Is it correct that you were not provided this document in the preparation and work that you did leading up to your report, sir?

Andrew Wynn: Yes, I had not seen this document when I produced my report.

Steve Hammond: If I could direct your attention to point 36.1.1; it’s a lengthy paragraph and I’m not going to go through a lot of the details, but do you see, sir, that in the middle of that document [of] the site minutes from December 2015, the Claimant’s project manager estimated that the cost of an adequate monster machine will exceed US$76.5 million. Have I read that right? Can you find that sentence in the middle, sir?

Andrew Wynn: Just a second.

Steve Hammond: Sure, take your time. Feel free to read the whole paragraph. I have an impatient audience so you’ll forgive me if I’ve rushed you along.

Andrew Wynn: Okay I see that.

Steve Hammond: Okay. It’s the case, is it not, that if the Tribunal were to conclude that the cost of an adequate monster machine was not US$36.5 million but, let’s say, US$76.5 million, you would be obliged, as the independent expert you are, to adjust your calculation. Isn’t that correct sir?

Andrew Wynn: Absolutely.

Steve Hammond: Alright. Based on your Schedule 1, if it turned out that there was an added US$40 million cost for this monster machine, the Claimant’s lost profit – as you would adjust your calculation – would be reduced pro tanto by US$40 million; isn’t that correct?

Andrew Wynn: Yes.

Steve Hammond: I have no further questions Mr Chairman.

Mark McNeill: Thank you very much Steve and thank you Andrew for agreeing to subject yourself to a withering Anglo-American cross-examination. I notice that both examiners adhered very strictly to closed questions – questions that put the proposition to the witness - and didn’t stray into more open-ended questions, which is asking why you know something or “tell us about X”. This can be dangerous sometimes, but other times can be used effectively. Are there any comments?

Andrew Wynn: I think that was a really precise illustration of the importance of not doing some of the things that Steven talked about. So, not asking for a conclusion; not going one question too far because there was bad news coming if we’d got there in terms of how do you assess that piece of evidence. Because, clearly, there are other things that could have been said. We could have, for example, offered an opinion that perhaps the project manager was trying to negotiate with the other side so, therefore, perhaps that document isn’t a reliable piece of evidence. Because Steven didn’t go too far, I didn’t – without forcing it, which I didn’t want to do – get an opportunity to say some of those things.

Mark McNeill: So, he left it at: if the tribunal accepts that piece of evidence, then you would need to revise your report and decrease the damages.

Andrew Wynn: Yes.

Mark McNeill: And, by doing that, he didn’t open it up for you to come back and assess the credibility of that evidence and then open up the floor. What are your views on that Steven? That was intentional, I guess?

Steve Hammond: That’s correct. That’s the point about a bridge too far in my view: asking the ultimate conclusion is really asking to get hit between the eyes.

Mark McNeill: Are there any other comments about the cross-examination, or about the testimony from the panellists?

Paul Stothard: An observation here – which is very difficult to do in a mock scenario – is to see how important the documentary record is in guiding the cross-examination. This example was very good at that; how the witness was shackled to the answers he gave by reference to the documents that are on the record. This plays an enormous part in international arbitration; hearings constantly refer back to the documents as the road map for how the questioning goes. I have another comment about the use of open questions. I think it is, of course, absolutely right that closed questions are the basis of cross-examination; in very rare circumstances is there a use for open questions and it tends to be when there isn’t a right answer to the question. Then you just want to hammer the witness, or embarrass them.

Mark McNeill: With that why don’t we turn to questions from the floor? Any questions about the preparation and practice of examination, or the examinations that you saw performed?

Audience member: Hi, ASP Group. You made the points about not asking a question too many or not crossing a bridge too far. How does the direct and re-direct of the other side come into play here? How can the other side use the re-direct to limit the damage of the other side?

Mark McNeill: In the last cross-examination, when the attorney is confident that there’s going to be an answer about the credibility of that testimony and it’s something that they know that the expert is very familiar and comfortable with, there might be an opportunity on re-direct to bring the expert back to that piece of evidence and draw his conclusions. So, it’s not just left at as Steve did. If the tribunal accepted that as credible evidence, then you’d have to decrease your damages. On re-direct you can take it one step further and draw him out and be able to then neutralise that point by saying: “But I wouldn’t accept that evidence for the following reasons.”

Duncan Speller: I think re-direct is an excellent opportunity to take the witness to the bridge that Steven was avoiding. You could say: “Well, you were given a preliminary estimate suggesting that the cost was US$67 million; why didn’t you take that figure?” It’s an open question; re-direct is meant to be open. You can’t lead the witness, but you can say: “Why did you go for the US$36 million figure?” It gives him the opportunity to say, for example: “I’ve reviewed all the documents and that US$76 million figure was a preliminary estimate.” There are much more reliable documents, which show the real cost was US$36 million. That makes it clear to the tribunal exactly why Steven didn’t go to that bridge when he’s got limited opportunity to come back on that point. In terms of re-direct, it’s worthwhile looking for the bridges that the cross-examiner has deliberately avoided, and thinking how you can get the expert to go to them.

Audience member: In cross-examining an expert witness, my concern is this. An expert knows more than the lawyer. As a lawyer, you prepare and set up questions, but the expert may start to explain issues that you can’t understand. He can cover or give the impression that his mistake was, in fact, not a mistake. In such a case, how can the counsel control the expert?

Duncan Speller: You’ve the opportunity typically to have your expert assist you with preparing the cross-examination, and you’ve also got the opportunity to have them with you there in the room. Of course, sometimes that’s still not sufficient; say the expert says something particularly left-field and, when you hear the answer, you think, “does that really make sense?” but you’re not sure whether you’ve got the right thing to come back. Having the opportunity to have the cross-examination fall across breaks or even overnight, you can then go back on that point, discuss it properly with the expert team and come back with all of your fire power to deal with the point.

Steve Hammond: I would make two comments. First, I think what you’re telling us is why tremendous preparation is so necessary. Clearly, this is always going to be a challenge, and it largely depends on the extent to which you can craft cross; you may forego certain lines of cross-examination because they’re rife with risk, and focus on the control of the witness. My chair was fond of saying that every expert is like a hand grenade; you have to keep your hand around them, or he will blow it off. Control is always paramount. That doesn’t mean that an expert won’t go over the fence, if you will, but that’s a good reason to have experienced international arbitrators on the panel because they will have seen many, many experts and will understand.

Mark McNeill: For me there are two elements for this. If it’s a damages issue, I’ll prepare with my own damages expert and review the opposite side’s report in detail. We’ll discuss its weaknesses and strengths and anticipate where that expert might go; where they might try to wrap me up in circles because this is their area; and, if I ask this question, he might go this way, that way, this way and what would be my answer? You can’t always guess it, but a lot of times if you think about that in advance, when you hope to get a particular answer, very often you just don’t. That’s the reality of cross-examination. But if you can think in advance about the different directions they might go in, at least you’re prepared when it starts heading in a direction you didn’t anticipate; that you don’t want to go in. Any other questions from the floor?

Audience member: I’d like to make a general comment and feel free to treat it as a question. What we’ve just seen is very seasoned counsel trying to show us how cross-examination can be done and the general traps to avoid, but in a sense it was overly simplified. We’re just seeing a five-minute version of it, and sometimes what you see here in these types of practice is not entirely realistic. In my experience, even if you point an expert to a particular document and ask very closed questions – “isn’t it so, sir?” “you say here X, Y and Z,” “didn’t you, sir?” type of questions – if the cross-examination leads to an understanding by the examined expert that you’re trying to reach at a point, he or she will feel free to say: “Yes I did say that, but I said it for this purpose.” In the last examination, for instance, we realised that he may have overcalculated the damages by US$40 million, but I can’t imagine a scenario where he wouldn’t try to interject and say: “Well, I didn’t rely on that document because I’ve seen other documents which didn’t really support that.” Could you, as seasoned counsel, tell us when you were hit by that type of volunteering by the expert, how did you deal with that?

Duncan Speller: I think again the key is control: having in mind the questions you want to ask and not letting the expert get away from your question. Ultimately, you’re the one asking the questions, so let the expert run and then bring the expert back to your question; and try to lock the expert into a simple answer. To the extent possible, you want to give the tribunal the sense that it’s a relatively simple point and this expert is using expertise to cloud, rather than answer, straightforward questions. If the expert says something totally different, or tries to defend what they’ve done in a way not related to the question, just bring them straight back and say: “Just to be clear, my question was X.” You can also make the point that you’ve got limited time and it would be helpful if the expert focuses on the questions that the cross-examiner is asking. Sometimes the tribunal will intervene. That comes back to the point about body language as well. If you get the sense that the tribunal is getting frustrated and feels the expert is trying to cloud issues, you can get more aggressive. I think ultimately, as cross-examiner, you’re the one answering the questions and it’s important that, whatever the expert does, you bring the expert back to the questions you want answered.

Paul Stothard: In respect of control, and from my experience of watching lots of cross-examinations, it is really important to have the tribunal on your side. If the tribunal is against you, the expert or witness can continually refuse to answer your questions. You’re thinking that this is looking bad for them, but you actually have to get the tribunal to see it that way. Every time you try to control, they continue to stonewall and make a mess of your cross-examination; then you can’t really use the technique. So without having a tribunal that’s at least leaning towards assisting fair cross-examination, it can be very difficult, despite good technique.

Steve Hammond: You’re right, of course, that we’ve given you a very narrow prospective – that’s all the time we had – but more important, I think, is that we were not able to give you a better sense of the overall theory of the case. I mean, this is one witness and there are going to be others. Certainly, the problems you identified would be likely to crop up, but you have to put it in the context of making sure that the answer to the ultimate weasel expert will come through other documents, other witnesses and your theory of the case as a whole.

Mark McNeill: If the expert or fact witness simply refuses to answer a question and keeps weaving and dodging, you can either move on and say: “Fine, if you’re not going to answer that question, I’ll ask you another one;” or you can ask the tribunal to direct the witness to listen to the question. I find that when you do draw such a direction from the tribunal, it tends very often to have a disciplining effect on the witness. They realise the tribunal is sending a signal; their demeanour tends to change after that. Any other questions?

Audience member: A number of years ago, Michael Schneider from Geneva – he’s a partner in Lalive – published an article that said cross-examination is not a useful tool for arbitrators because what happens during cross-examination only puts the answer in the witness’s mouth. What do you think about this approach?

Mark McNeill: I’ve been at a conference in which the audience was asked whether they believed in the value of expert testimony period – not just cross-examination – and Michael Schneider was the only person in the room who said it isn’t worth the paper it’s written on. Because this is a person paid by the party, their testimony is constructed by the party and they are overly influenced, whether they believe that or not. I’m sure Andrew would not agree with that. I think his views may be one side of the spectrum, but there’s a wide spectrum of views about cross-examination and how useful it is. I have heard people say it’s just a canned sort of theatre that doesn’t get to the truth. What does the rest of the panel think?

Andrew Wynn: Whether it’s cross-examination or some other form of testing the evidence in person, I think it is essential. Whether or not what happens on the day makes a difference, it affects the evidence and the way that the people putting the evidence together approach the case. You might hope that that’s not the case, but I think it very much is.

Duncan Speller: I have respectfully to dissent from Mr Schneider’s views on the utility of cross-examining expert witnesses, not least because I have him as an arbiter on a fairly regular basis. I do agree with him in one respect, which is the utility of cross-examining legal experts. If you have a governing law, which is not that which counsel is able credibly to make submissions in, and you’ve got experts of that law, I don’t think that very often goes very far. I think there is an emerging consensus that that evidence should just be put on the record and the tribunal can make of it what they wish.

Mark McNeill: So the conclusion is that, as Churchill might say, the cross-examination is the worst method of getting at the truth except for all the others. Any other questions?

Esra Ogut: Esra Ogut from Peter & Partners. My question is more of a practical question. Do you have a preference between consecutive translations and simultaneous translations? One idea is that, for consecutive translations, you give more time to the expert; if you are on the other side doing cross-examinations, it may not be very advantageous. Do you have any preference?

Andrew Wynn: If we’re talking purely about the quality of arbitral justice, then simultaneous translation is to be preferred. Now, it may be, if you’ve got a problematic case for tactical reasons, you make a different decision, but in terms of the quality of the product I think simultaneous interpretation is not only better, but critically important. It’s a very, very hard thing to cross-examine a witness through an interpreter and, if you play it out with a consecutive problem, it be can almost impossible.

Paul Stothard: I have numerous cases where I’ve had witnesses who only speak Arabic. I think that’s an example of where this is acutely difficult because, not only is there this delay in the translation, one is never sure that the sense of the question is being conveyed faithfully. The two languages are so radically different that it can wholly undermine things unless you’re careful. You really need to have a member of the team who speaks Arabic and can check the accuracy of the translation as it goes on; on both sides, questions and answers.

Mark McNeill: Thank you very much. Please join me in thanking our panel.

GAR Live Istanbul 2017 took place on Thursday 15th June 2017 at Shangri-La Bosphorus, Istanbul. It was sponsored by Istanbul Arbitration Centre, Akinci, Cooley, Cosar, FTI Consulting, Paksoy, Göksu Avukatlik Bürosu, Norton Rose Fulbright and Lexaworld Translation.

The next GAR Live Istanbul will take place on Thursday 21st June 2018. Registration is now open and is complimentary for in house counsel and government representatives.

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