This chapter features text boxes by the following arbitrators: Donald Donovan: Commanding the narrative
Jan Paulsson: Examining beyond scope of witness statement
Michael Hwang SC: Length of examination
Donald Donovan: Engaging with the opposing advocate
Yves Fortier QC: Unsettling adversary's witnesses
Jean Kalicki: Alleging bad faith
Jan Paulsson: Arbitrator interruptions
It is with considerable hesitation that I commit my thoughts on cross-examination to print. First, because those thoughts are not nearly as settled or ordered as one might expect, given my occupation. Secondly, I tend not to prepare for or conduct cross-examinations pursuant to any particular framework or with overly stringent objectives. The reason for this is that counsel frequently benefit from being able to adapt the cross-examination - its direction, tone and speed - in response to a variety of factors that cannot be known with certainty beforehand. Such factors include the opponent's opening presentation, late-produced documents, interventions from the arbitrators and prior witness testimony. To say nothing of the witness's appearance, demeanour and confidence, or simply the ‘mood in the room'. Hence, from my perspective, the most important aspect of any cross-examination is to be sufficiently prepared to put the questions not only in the manner planned, but also in the manner not planned. This may well be another way of saying that counsel must be prepared to take the cross-examination in many different directions. However you look at it, detailed notes of subjects and questions, each with paths that lead from ‘yes' or ‘no' answers, may well seem like solid preparation, but in the real world it can be the worst preparation, as it may leave the advocate less able to respond to developments as they occur. And believe me, they occur.
This is not to say that counsel should not determine in advance their primary objective. That is necessary, though it is only the first step. The primary objective usually taught to advocates trained in the common law is to undermine the witness's credibility. However, we know from practice that in some cases the witness is able to give useful testimony; hence on occasions counsel may benefit by underscoring, not undermining, the witness's credibility. And there may be situations where counsel will seek to achieve both: where some evidence is harmful, and other evidence is useful. This requires a delicate touch. In some cases counsel will seek to elicit evidence that has been overlooked - perhaps intentionally - in a witness statement. In others counsel may wish to highlight that the witness indeed knows nothing beyond what is in the witness statement. Counsel may also use witnesses under cross-examination to highlight the opponent's ‘empty chairs', disclosure failings and inconsistencies with fellow witnesses (or experts who have relied on witness testimony). There is, in other words, a broad array of acceptable objectives for the advocate. And these may change during the course of a cross-examination. But each should be carefully identified and evaluated while preparing for the hearing.
One thing may, however, be said with great confidence: counsel must never assume that the testimony of every witness put forward by their opponents is (or will remain, even if not cross-examined) harmful to their case. Cross-examination provides a platform for counsel not only to attempt to neutralise harmful evidence, but also to elicit helpful evidence. Success in either depends on a multitude of factors often unknown to the advocate, and in most cases beyond his or her control. It is foolish for counsel to embark on any cross-examination with fixed expectations as to the path it will follow, the evidence it will elicit or its persuasiveness for the arbitrators.
Of course this is not how cross-examination is usually portrayed by Hollywood, namely as a great spectacle, a duel, all-consuming theatre involving angry questions, heated objections, either sustained or overruled, and game-changing witness meltdowns and sobbing confessions. It can be so - I have witnessed it - but that is very rare indeed.
The far more reliable image is one of a gathering of interested people trying to ascertain (or hide) the truth to support (or undermine) the theory or presentation of the parties' cases that their counsel consider most likely to persuade the arbitrators. Hence - and this is key to appreciating the nuanced nature of a good cross-examination - it is important to understand that the advocate faces myriad considerations and moving parts which often act unpredictably, but in ways that affect how a cross-examination may be perceived by the arbitrators. These include such disparate and seemingly unrelated facts as the length of the hearing, the time of day, the light and comfort of the room, the general interest of the subject matter, the stance, tone and eloquence of those speaking, and the age, sex, backgrounds and physical and mental stamina and wellbeing of the arbitrators.
Given these disparate factors it is no surprise that each hearing creates its own social microcosm: its diverse participants interacting with each other in all types of verbal and non-verbal ways, often subconsciously, forming assessments and views as to the likeability, the relevance and the credibility of each other. In no two hearings will these variables be the same and in the course of a hearing these shifting factors can produce noticeable changes in the arbitrators' perceptions of the more persuasive counsel or case theory.
In this respect I offer the analogy of the artist presented with a canvas, but one that is far from blank. It will have been both cut and coloured by the preceding written and oral stages, by counsel's perception of the arbitrators' perception of the evidence and the merits, and how the witnesses present in person. This canvas could contain some or no borders, some or no landscape or other features, and some fixed and some dimmable or even erasable impressions. Yet the artist possesses only his or her wit and a very limited palate of evidence and arguments from which to attempt to create on the canvas an image more closely resembling his or her theory of the case.
Cross-examination is about command
There are many types of cross-examination, and few follow the stereotypical form epitomised by the old US television series Perry Mason, in which the principal witness inevitably broke down with a stunning admission after a clever cross by the wily Mr Mason. Much more often, the effective cross-examiner makes his or her points more subtly, so that the import of the testimony becomes clear only as the cross concludes. Sometimes, the cross can be friendly, because the examiner knows that there is a story the witness will want, or be willing, to tell. Sometimes the examiner will need to proceed by intellectual force, making a hostile witness tell the examiner's story by marshalling documents, other testimony and indisputable facts that allow no other credible version. Sometimes the cross is simply about credibility. But always, a cross-examination is about command - no matter in what direction the witness heads, the examiner must control the narrative. That's why to a trial lawyer, there is nothing more beautiful than the look of a transcript of a cross-examination in the classic form - a series of leading questions and brief, primarily yes-or-no answers.- Donald Donovan, Debevoise & Plimpton
Cross-examination is no science, no series of formulae or fixed propositions, no set of blocks that can be assembled to create only a finite number of forms. It is something far more abstract, more subtle, more artistic.
Given this almighty challenge, one might consider that only a few would be so ambitious, if not outright presumptuous, to write for the benefit of others how to conduct a cross-examination. As it happens, however, a great deal has been written about it. Most of the authors are common law trial attorneys or professors of the courtroom and they write from their perspectives as advocates operating within highly restrictive environments, where principles and practices have evolved over centuries into hard-and-fast rules setting out what advocates can and cannot do, which explains the myriad objections available to opposing advocates and the endless stories of shame-faced counsel following spectacularly failed cross-examinations. This is the culture that developed over the centuries in common law courtrooms around the world. But international arbitration is not practised in those courtrooms. Nor (usually) is it practised by those advocates. Indeed, practitioners from both civil and common law systems with no experience in the practice of international arbitration do themselves and their clients no favours assuming that the rules and practices of their home courtrooms will apply before international arbitrators.
Are you sure the rules of the game are clear?
Perhaps foremost among the things that should be settled well before the hearing is whether questions should be limited to subjects dealt with in witness statements. This is often neglected, because lawyers believe they know the answer when they do not. American lawyers often assume that since witness statements have the function of replacing direct testimony, cross-examination is limited to the scope of the witness statements; English lawyers tend to assume that ‘once you give me a witness, he is mine' - with the result that anything within the witnesses knowledge and relevant to the case is fair game. There are things to be said in favour of either rule, but it must be clear.- Jan Paulsson, Three Crowns
For this chapter - cross-examination from the perspective of the common law - I begin with an early presentation made by an American courtroom procedure guru, Professor Irving Younger, in which he formulates his ‘10 Commandments' of cross-examination. I remember well the day that my own professor played to my class the then decades-old video of Younger presenting the 10 Commandments. To be sure, it is one of many collections of rules or ‘dos and don'ts' published over the years by prominent specialists in common law courtroom procedure, but it has become the one I reflect on most, not only because it was the first that I was to study, but also because I have on many occasions found myself challenging the appropriateness of strict adherence to the 10 Commandments in the context of contemporary international arbitration.
While cross-examination (and hence the 10 Commandments) had its origins in the common law, international arbitration has moved on considerably. For example, counsel are now better prepared for cross-examining witnesses by the now standard practice of producing relatively comprehensive written witness statements in advance of the evidentiary hearing. Such statements normally stand as the witness's evidence in chief. Moreover, no longer are counsel expected to challenge each witness on everything unhelpful said by them in their witness statements. Nor do counsel have the luxury of taking their time with witnesses, as tends to be the practice in common law courtrooms. These days arbitrators expect of counsel, even in factually complex evidentiary hearings, to present cases promptly, often giving very limited time to present submissions and question the witnesses. This requires counsel to consider whether to cross-examine witnesses at all, and when they decide to do so, how to target the best points in the shortest possible time. It requires counsel to jettison less important points, which can only be sensibly achieved if they have a thorough grasp of all the issues and evidence in the case.
As international arbitration has developed its own standard procedures - many of them compromises between differing legal cultures - some of the 10 Commandments have become less imperative, if not potentially harmful. In this chapter I set out some thoughts on key issues facing cross-examining counsel and along the way make passing references to the 10 Commandments to help gauge to what extent cross-examination in contemporary international arbitration has moved on from its very strict common law roots.
Before going any further, let's recount the 10 Commandments. Younger commanded the advocate to:
- Be Brief
- Use Plain Language
- Ask Only Leading Questions
- Avoid Argument
- Avoid Repetition
- Avoid Witness Explanation
- Limit Questioning
- Save For Summation.
A striking theme here, as with countless similar instructions in the common law world, is not dissimilar to a commonly accepted summation of the Hippocratic Oath: do no harm. It is every bit as much what is not done that can lead to counsel's demise, as what is done. The same meaning, put in more contemporary observation, is that ‘there are more suicides than homicides in cross-examination'.
And so, I move to a select few issues that confront cross-examining counsel that are addressed also by my co-editor, Philippe Pinsolle, from a civil law perspective (see Chapter 5, pages 60-67).
Determining whether to cross-examine a witness
Although any party submitting a witness statement must be prepared for that witness to be questioned at an evidentiary hearing, no rule requires opposing counsel to cross-examine a witness. A knowledgeable, articulate witness with a good memory of facts harmful to the case may well use the opportunity of being questioned merely to reinforce the harmful evidence contained in their witness statement. The decision whether to give the witness that opportunity is important. It is a matter of judgement, judgement which in most cases cannot be exercised without detailed knowledge of the evidence and issues in the case, and the witness's written testimony; an understanding of the experience, demeanour and character of the witness; and client instructions. Factors to consider include the importance of the subjects covered by the witness and the extent to which the written testimony contains harmful evidence. Also, what has the witness not said, or what issues have they not addressed, about which they have personal knowledge? Are there unexplained gaps in the story as told by the witness? Counsel should also consider areas into which it is possible that the witness, or opposing counsel, would rather the witness did not stray.
Even if a witness believes that he or she is telling the truth, it does not follow that the testimony is credible. Much depends on the reliability of the witness and counsel may need to devote some time to testing this. Credibility and reliability, in turn, are best tested under various angles of cross-examination, whether dealing with specific points or the witness's disposition as a whole. Sometimes counsel will question the witness about inconsistencies internal to the witness's written testimony; sometimes by reference to the testimony of others; sometimes by reference to the contemporaneous documentary record. Sometimes counsel will resort to opposing counsel's oral or written submissions. Each approach is legitimate, and if each is pursued it may become time-consuming. And so we see that the first of the 10 Commandments - to be brief - comes under pressure.
Of course cross-examination is not all about destroying the witness's credibility, although it might seem appealing to do so. Sometimes counsel will want the witness to be believed because he or she has elicited testimony from the witness that undermines the opponent's case. As mentioned earlier, other times counsel will have two seemingly contradictory objectives: on the one hand, to undermine the witness's credibility, on the other to underscore evidence that is useful to the case. This requires careful management.
Success in one of counsel's objectives may harm the other. It all goes into the mix when deciding whether or not to cross-examine a witness, and, if so, on which subjects.
Benjamin Franklin famously remarked that by failing to prepare, one prepares to fail. This could not be more true for cross-examination. Basic preparation includes the making of outlines, keeping citations and documents at the ready, being cognisant of the procedural rules and the tribunal's preferences, preparing issues or topics of cross-examination and understanding how they either reinforce counsel's case theory or undermine the opposition's. These are all important, yet all too often, one sees counsel conduct a cross-examination with too much reliance on pre-prepared subjects and questions. This can lead to missed opportunities. Blind adherence to a prepared script will often lead counsel away from the unexpectedly useful evidence that witnesses sometimes volunteer under questioning.
While Younger rightly instructs us to listen, he also instructs us not to ask any questions to which we do not know the answer. I do not agree with this, for reasons I elaborate on later. If counsel becomes too focused on the next prepared question, too immersed in his or her outline, valuable opportunities to elicit useful testimony may be overlooked. Witnesses frequently make throwaway remarks, sometimes merely to fill the time while counsel considers the next question, and these remarks, if explored, can elicit useful testimony. This undermines the 8th Commandment, which directs counsel never to let the witness explain. Yet sometimes the explanation sought will be irrelevant because the point has been made by the question. And sometimes the answer, whatever it is, can lead counsel to pursue a new line of attack. Moreover, if in counsel's judgement the witness has become confused, is behaving defensively or is simply incoherent, the best course can be to let the witness continue speaking, which is often best achieved by asking open questions. If counsel is completely confident that the witness cannot explain, there is little harm, beyond the use of time, in the witness being asked to do so. And the confused witness may give up yet more useful testimony, to say nothing of turning the arbitrators against the opposition's case.
Quit while you're ahead
In a commercial case in court, I had to cross-examine an important witness, who was a young and inexperienced executive with only secondary education. I commenced my cross-examination at the beginning of the afternoon session, and because of his nervousness appearing in court and his lack of higher education, he was an easy target for cross-examination, making a number of admissions and confessions, which were favourable to my client. At the end of the afternoon session, I felt that I had made a sufficient impact to make his witness statement much less credible, but asked the court to let me ponder overnight whether to ask any further questions on the following morning. The next morning, I decided to cross-examine for a while to underline the admissions and concessions he had on the previous afternoon. However, by this time, the witness had suddenly became smarter and more confident and (presumably) more used to dealing with my questions. He then promptly explained his admissions and concession of the previous day and reaffirmed the truth of his witness statement, and explained his new evidence that day by saying that he had not understood my questions properly when he answered them the previous day. Of course, his credibility would had been suspect in any event, but I had effectively made no headway with any of my new questions on the matter, so in the closing submissions I had to deal with his evidence on the first day and contrasted them with his evidence on the second day, and then make submissions on his reasons for his change in testimony. The moral of the story: control the length of your cross-examination and quit when you see the witness starting to give better answers to your questions.- Michael Hwang SC, Michael Hwang Chambers
Approach and style
The conventional wisdom in matters concerning approach and style is to ‘find your own' and then carry it through the trial or hearing. Of course no two advocates are alike. Therefore advocates must find a style that works for them. Yet - without wishing to understate the importance of personality - of far greater importance is the advocate's ability to adapt manner, style, tone, rhythm, presentation and questioning to context. A singular approach and style does not suit every occasion, or changing circumstances. For example, bullying or being heavy-handed with a witness rarely plays well with arbitrators. This is especially important to consider when dealing with vulnerable witnesses. On the other hand, arrogant witnesses who refuse to answer questions require stern handling (and witness demeanour can change from one session to another).
Subject matter should also influence approach and style. For example, arbitrators will only rarely follow detailed questioning about figures and formulae arising from dense or multiple spreadsheets or accounts, especially if conducted towards the end of a long day. Often it is better to leave complex numerical analysis to experts, or at least to when the arbitrators are fresh. The use of questions to merely highlight the documentary record is another area where counsel should be flexible. Some arbitrators appreciate the use of the witness to highlight key documents from the record, a process they regard as valuable and informative, especially if the documents have not yet been referred to in opening submissions. On the other hand, some arbitrators regard taking witnesses to documents without highly material questions as a waste of time.
Above all, engage
The greatest joy of advocacy is the opportunity to directly engage with the opposing advocate and the tribunal. It follows that an advocate should welcome questions from the tribunal and straightforwardly respond to them. Likewise, the advocate should squarely take on each important point made by the adversary. To be persuasive is to be concrete and specific, and the best way to be concrete and specific is to engage fully and directly with what the adversary says and what the tribunal wants to know.- Donald Donovan, Debevoise & Plimpton
In other words, as very little in this area is enshrined in pre-fixed rules, much of counsel's approach should be responsive to the preferences of the arbitrators. Arbitrator preferences can be vastly different from one case to the next, but their broad powers to shape the proceedings and the manner in which cross-examination is conducted is undisputed.
Younger's elaboration of his 4th Commandment is that counsel should not ask a question to which he or she does not already know the answer. While it is true that through the use of leading questions counsel is able to direct and control oral testimony, the 4th Commandment, if disapplied with wisdom, can serve to counsel's great advantage. The skill here is to select the right issue on which to ask a question to which the answer is not known. One such situation is when there is no real likelihood of the answer being harmful. For instance, if counsel has cause to ask whether a witness is still stealing money from his or her employer, counsel may not know the answer, but it does not matter: either the witness is still stealing money, or used to steal money, or singly denies it as might be expected - all answers assist and, at least, no answer is unhelpful. Another example might be to ask a director if he or she discussed a letter with the board of directors. A ‘no' may support a case for the witness acting without authority. A ‘yes' might help to implicate other directors and the company itself. Everything will of course depend on the circumstances, but the principle holds that some questions may elicit answers that either do not matter or provide an opportunity for the witness to further contradict themselves, or disclose new information that cross-examining counsel may find useful. As with all advocacy, flexibility and the ability to seize opportunities are key.
And in addition to procuring evidence helpful to counsel's case, an advocate must also keep in mind the visual and presentational aspect of cross-examination. In this is regard it can prove helpful to bear some basic principles of psychology in mind. One that I find most relevant is Tversky and Kahneman's ‘peak-end rule'. This rule suggests that an experience is not evaluated by the totality of the experience but rather by representative ‘snapshots' based on the ‘representativeness heuristic'. Tversky and Kahneman suggest that these representative snapshots are, in fact, the average of the most intensively felt parts and the feeling at the conclusion of the entire experience. On this view, a selection of powerful moments and a strong ending is likely to be more effective than an equal-weighted line of inquiry. In this respect it is important to remember that much of the assessment of credibility carried out by the arbitrators is based on impression. Early and late impressions tend to be the most lasting. It is important therefore to begin and end a cross-examination with the material most likely to grab the arbitrators' attention.
Whatever approach counsel deems right for the given circumstances, it is always the case that politeness, measured confidence, an agreeable pace, eloquence and clarity will do much to enhance the effect of any cross-examination. Advocates praised as ‘ferocious' cross-examiners do not always serve their clients well. There are likely to be very few, if any, circumstances in which cross-examining counsel should become (or show that they have become) ‘cross' with a witness. To the contrary, the effectiveness of questioning may well be reduced if the arbitrators believe the witness is receiving impolite treatment.
Younger's 9th Commandment, to limit questioning, is another that does not tell the full story in contemporary international arbitration. It is certainly true that a common pitfall to avoid is asking too many questions: this danger looms largest when the advocate has made a strong point which he or she is determined to exploit. The key points here are not to flog a dead horse and not to gild the lily. Once useful evidence has been elicited, counsel should consider carefully if the time has come to quit while they are ahead. ‘The interminable advocate, in short, is rarely the victorious advocate'. None of this is to say that questions must stop altogether as soon as the witness proffers something useful. As I have said, unexpected answers or new ideas may need to be subjected to further questions, and this is where counsel need to be quick on their feet, but also to remain calm and exercise sound judgement.
Handling and presenting documents
The contemporaneous documentary record is essential to any cross-examination and should provide the starting point from which counsel select subjects for questioning. Secondary sources include other testimony (from statements or the transcript) and written and transcripted submissions. There is limited use in simply putting your case to a witness who, if well prepared, will deny it; which is why these source materials are essential. Documents, whether used as swords or shields, are generally the most effective way to elicit the sought-after evidence, or contradict other evidence which is unhelpful.
Given the importance of documents, counsel must deploy them at the right moment. How one achieves this is a matter of judgement, but the two most effective times are usually when introducing a subject, to help keep the witness on track, or after subject-matter questions have been put, to discredit by contradiction. On any view, however, it is essential that counsel completely master the documentary record. Only then will counsel know when and how to deploy documents to maximum effect.
Making and dealing with objections
In common law courtrooms the making and responding to objections has become an art form unto itself. Objections are mostly made as to the form or foundation of questions, as derived from strict common law rules concerning the admissibility of evidence. However, in contemporary international arbitration less attention is paid to form and more attention is paid to substance. This is because arbitrators are considered perfectly capable of assessing the probative value - or weight - that should be attributed to answers given to questions under different circumstances. The result is that arbitrators tend to frown upon technical objections or objections that appear mainly strategic, perhaps to protect a witness or derail cross-examining counsel. It is better to limit objections to an opponent's questions unless there is an obvious and proper basis for doing so, such as when the question is unintelligible, compounded or ambiguous, or put on an incorrect or unproven premise.
How counsel responds to objections will depend largely on whether he or she considers the objection to be justified. If counsel has framed a question poorly, or there is any scope for the question being based on a mischaracterisation of the evidence, then counsel should promptly thank objecting counsel, apologise to the witness and the arbitrators and proceed to put a better question. This helps to establish and retain the confidence of the arbitrators. If on the other hand counsel considers an objection to be wholly baseless, he or she should promptly defend the question and permit the arbitrators to rule on the matter.
If counsel's cross-examination is unduly peppered with poor or plainly strategic objections, he or she should seek a direction from the arbitrators that opposing counsel should refrain from further interruption of the flow of questions.
Witnesses can be difficult in numerous respects, the most common being not listening to questions, not answering them and making speeches. Much has been written about asserting control and keeping command of the situation. This is important, but it is often more nuanced than the binary question of who is controlling whom. In most cases counsel will benefit from making an effort to get to know the witness, through polite introduction and non-threatening questions. This may be achieved by introductory questions that help the witness to get comfortable with counsel, to help them to relax. This is often a good idea with lay witnesses. For professionals, sometimes a more direct approach is necessary: they must understand, and quickly, that counsel is in charge. Once counsel have a better sense of their witness, they can tailor their approach. Skilfully moving between leading and more open-ended questions can prove especially helpful. And it is often worth exploring with witnesses whether they have any vested interest in the outcome of the case, as this may affect the weight the arbitrators attribute to the evidence and may help explain any witness intransigence. It will, to be sure, not always be possible to elicit from the witness, on the critical issues, the sort of evidence or statements counsel seeks. A useful strategic adage in such circumstances is the principle of falsus in uno, falsus in omnibus - false in one thing, false in everything. If the advocate is able to establish that a witness is unreliable in one, albeit less important, area, the shade of doubt can be leveraged in submissions to challenge the testimony on more salient aspects.
Sometimes, the best option is to get under the witness's skin
You can win (or lose) a case with the successful cross-examination of an important witness. You need to be a very good advocate to win a case by relying mainly on the cross-examination of your opponent's star witness. Lawyers of my generation often tried to get under the witness's skin to make him or her lose concentration. Let me explain with a war story.
Many years ago, I was cross-examining my opponent's vice president, finance - their star witness. He had been appointed very recently to this lofty position. Previously, he had been controller of the company. He was, understandably, very pleased with and proud of his promotion. Shortly after I had commenced my cross, I intentionally referred to him as ‘Mr Controller'. Of course, he corrected me. I apologised, but five or ten minutes later, I sinned again and called him ‘Mr Controller'. He corrected me again. This went on for a good half-hour. Each time that he corrected me, the witness was getting more and more upset. Eventually, he lost his concentration and I was able to score many goals in my opponent's net! My cross of that ‘star' witness proved to be quite successful.- Yves Fortier QC, 20 Essex Street and Cabinet Yves Fortier
Counsel will at times suspect that a witness is not being entirely truthful but lack the resources with which to pursue the matter. It is not easy to decide, in the midst of questioning, which responses are worth testing. Psychological studies have revealed some helpful pointers to identify deceit or half-truths. Blair, Levine and Shaw have noted the usefulness of so-called tests of expected knowledge. Say, for example, a witness claims to have been closely involved with the construction of a building over a number of years. If that is true, it can also be reasonably expected that a number of other facts must follow; for example, this same person would normally also know how to travel to that site, know other people that worked there and be familiar with accommodation and eateries in the area.
Only allege bad faith when you have the ammunition
Arbitrators are rarely impressed by gratuitous attacks on the good faith of the opposing party, or by rhetorical grenade-launching between counsel. An argument about character or bias may seem appealing because it allows you to come out swinging. But bad faith should only be raised in arbitration proceedings in extreme circumstances and, most importantly, when there is persuasive evidence to support the charge. If the facts in the end do not support such a strong allegation, the counsel launching the attack loses credibility.- Jean Kalicki, Kalicki Arbitration
The absence of such knowledge, or difficulties in articulating it, casts doubt on the veracity of the initial statement. Another approach, countenanced by Milne and Bull, is to elicit intentionally open and expansive verbal accounts that bind the speaker to a particular set of facts. These can later be used to cross-check responses to more narrow and pointed questions that overlap with the initial account. These are useful tactics that once more conflict with some of the 10 Commandments.
Many arbitrators will not permit re-cross, and rightly so if re-direct has been limited to matters arising during the cross-examination. But it will happen in some cases that a witness will present wholly new and harmful testimony either on re-direct or in response to questions from the arbitrators. If this happens, counsel may re-cross and should insist on doing so if it is obvious that questions can be put to remedy the new harmful evidence. In serious cases counsel should consider a break to enable sufficient preparation, or reserve the right to deal with the new evidence by submissions. This will often appeal to the arbitrators who frequently will be pleased to see a cross-examination completed and hence reluctant to see it start up again.
Practitioners of international arbitration are not hidebound by complex, mostly outdated and frequently outright baffling rules of procedure that dictate what advocates can and cannot ask of the witness they are questioning. In this sense international arbitration is more contemporary, more flexible and more mature. The practice of international arbitration recognises that the parties, their counsel, their witnesses and, perhaps most importantly of all, the decision-makers - the arbitrators - come from diverse backgrounds and legal cultures, and that one size does not fit all. Sometimes counsel should not attempt to cross-examine a witness at all. Sometimes the list of must-cross subjects is vast. Each case is unique. One case may demand the destruction of a witness's credibility; another may require that it be built up. And this is without taking into account the knowledge, experience and confidence of the witnesses, which can within moments of the examination commencing lead to the skilled advocate taking a different approach. It is into this extraordinary array of moving parts and subjective evaluation that the advocate steps forward to conduct the cross-examination.
Advice to arbitrators
Some arbitrators who know better interrupt cross-examinations to show that they are better advocates than the advocates. Others innocently interrupt because they find it useful. Both are wrong. Cross-examination should never be interrupted save in response to a valid objection or for a simple clarification, such as ‘Was this still in the year 2011?' The reason is that a well-planned cross-examination may be hopelessly disrupted by clumsy distractions. The tribunal should only question the witness once the lawyers are done. But by the time it happens, it is too late; who wants to take the risk of lecturing the tribunal? This is the type of thing which should be clarified in advance, best in a pre-hearing conference, before egos get in the way.- Jan Paulsson, Three Crowns
Though for all that, I do not dare suggest that what I consider to be a good cross-examination is either objectively good, or even one that I could produce. As with all art, its beauty lies in the eyes of the beholder. This is plain from the many cases where I have sat as arbitrator and seen for myself the vastly differing appreciations by different arbitrators of the same cross-examination, and, when counsel, the differing perspectives of my own team members of the cross-examinations completed by opposing counsel. Which perhaps explains why cross-examination has been referred to as the ‘most misunderstood of all elements' of the advocacy process. Younger reminds us that even Cicero referred to cross-examination as ‘by far … most difficult, the most complex, and the most subtle' of all the things an advocate must do. One reason for the lack of understanding is that we usually measure success against objectives, yet in cross-examination there is, rightly, no requirement that counsel provide advance disclosure of their objectives.
The cross-examination process, however, need not be misunderstood any more than any other art. It merely needs to be understood in its context, which entails a deep understanding of the parties' positions on the various issues in the case and a broad understanding of counsel's many potential objectives in asking questions of their opponent's witnesses. I do not accept that it can be measured by any hard and fast rules, be they Younger's immutable 10 Commandments or the scores of other published ‘dos and don'ts'. This is not to say that the 10 Commandments are of no relevance. To the contrary, and even by Younger's admission, his commandments, if obeyed, should at a minimum aid the inexperienced cross-examiner in avoiding potentially costly mistakes or own goals. I merely wish counsel to understand also that blind obedience of the 10 Commandments, without deviation, risks missed opportunities and in some cases real harm to the clients' case.
- Stephen Jagusch QC is a partner at Quinn Emanuel Urquhart & Sullivan LLP. The author would like to thank Quinn Emanuel associates Nabil Khabirpour and Timothy L Foden for their assistance in preparing this chapter.
- Not in civil law jurisdictions, where witness testimony is rare but even when used it is treated with utmost caution and not subject to cross-examination by opposing counsel.
- Available at, e.g., www.nebarfnd.org/images/pdf/mocktrial/10commandments.pdf.
- The rule that the advocate is not deemed to have accepted that which he or she does not challenge is now firmly entrenched in international arbitration. That said, out of an abundance of caution it is prudent to ensure that this understanding is recorded formally by the tribunal in one of its early procedural orders or directions if not in terms of reference or such other document that may come to record the applicable rules or procedures.
- While Younger acknowledged that commandments were overlapping and there were only 10 inasmuch as was necessary to arrive at a solidly round figure and, one suspects, to derive Biblical resonance. For example, in addition to the 10 Commandments Younger believed that cross-examination should be limited to just three points, but he did not make this a commandment.
- AAA Handbook On International Arbitration Practice, (2010, Juris), at 225.
- M. A. Cymrot, ‘Cross-Examination in International Arbitration', Feb/Apr. 2007, Dispute Resolution Journal, at 55.
- M. A. Cymrot, ‘Cross-Examination in International Arbitration', Feb/Apr. 2007, Dispute Resolution Journal, at 55.
- IBA Rules on the Taking of Evidence in International Arbitration (2010), Article 8: ‘The Arbitral Tribunal shall at all times have complete control over the Evidentiary Hearing. The Arbitral Tribunal may limit or exclude any question to, answer by or appearance of a witness … if it considers such question, answer, or appearance to be irrelevant, immaterial, burdensome, duplicative, or covered by a reason for objection…'.
- Journal of Personality and Social Psychology 65 (1): 45-55.
- D. Kahneman, A. Tversky, . ‘Subjective probability: A judgment of representativeness'. (1972), Cognitive Psychology 3 (3), at 430-454
- I. Younger, ‘A Letter in Which Cicero Lays Down the Ten Commandments of Cross-Examination', 3 LITIGATION, No. 2 (Winter 1977), pp. 18-20, 49
- See R. D. Kent, ‘An Introduction to Cross-Examining Witnesses in International Arbitration', Apr. 2006, Vol. 3 issue 2, Transnational Dispute Management, fn 6.
- L. W. Newman and R. D. Hill, The Leading Arbitrators' Guide to International Arbitration (3rd Ed, Juris, 2014), p. 684.
- J. P. Blair, T. R. Levine, A. S. Shaw, (2010). Content in context improves deception detection accuracy. Human Communication Research, 36, 423- 442. http://dx.doi.org/10.1111/j.1468-2958.2010.01382.x cited in T. C. Omerod, C. J. Dando, ‘Finding a Needle in a Haystack: Toward a Psychologically Informed Method for Aviation Security Screening', Journal of Exp. Psych: General, 2015 Vol. 144, No. 1, 76-84.
- T. C. Omerod, C. J. Dando, ‘Finding a Needle in a Haystack: Toward a Psychologically Informed Method for Aviation Security Screening', Journal of Exp. Psych: General, 2015 Vol. 144, No. 1, 76-84, at 77.
- R. Milne, R. Bull. (1999). Investigative interviewing: Psychology and practice. West Sussex: Wiley. Cited in T. C. Omerod, C. J. Dando, ‘Finding a Needle in a Haystack: Toward a Psychologically Informed Method for Aviation Security Screening', Journal of Exp. Psych: General, 2015 Vol. 144, No. 1, 76-84.
- Negotiation and Conference Skills, Blackstone Press Ltd; Revised edition (26 Sept. 1994), at 253.
- I. Younger, ‘A Letter in Which Cicero Lays Down the Ten Commandments of Cross-Examination', 3 LITIGATION, No. 2 at 18 (Winter 1977).