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The Guide to Advocacy - Second Edition

Cross-Examination of Fact Witnesses: The Civil Law Perspective

This chapter features text boxes by the following arbitrators:                                                 
Hilary Heilbron QC: What not to ask
Stanimir Alexandrov: Respectful cross-examinations
Stephen Bond: Untruths and The art of civil law cross-examination
Jan Paulsson: On objections

A right of cross-examination, as such, does not exist in principle in the civilian tradition of civil procedure.[2] The situation may be different in criminal procedure. Consequently, a civil law trained advocate is in principle unfamiliar with the concept of cross-examination, and common law trained advocates would enjoy an advantage in this regard. This, however, is no more than a cliché. Experience shows that cross-examination is a learning-by-doing exercise, and civil law trained lawyers can be quite effective at this exercise if they learn properly by watching others. Experience shows that in international arbitration, excellent cross-examiners are equally found in the civil law and common law traditions.

This section will seek to explain how a civilian trained practitioner might encounter the techniques of cross-examination. It is based on real situations observed in real arbitrations. It will hopefully provide practical advice to those civil law practitioners wishing to engage in cross-examination and will help common law arbitrators to understand certain idiosyncrasies of cross-examination conducted by civil law lawyers.

It has been said that the components of a successful cross-examination are to: (1) understand its purpose, (2) prepare thoroughly, (3) select the right witnesses to cross-examine, and (4) execute well.[3] While this section is not divided quite along those lines, these four points, which reflect common sense, underlie the themes addressed.

Fact witnesses – what not to ask

Cross-examination of factual witnesses should be focused to the key points in dispute and to evidence of facts within the knowledge of the witness. Common pitfalls include:

  1. Attempting to cross-examine on every single point in the case rather than confining the questions to the main disputed issues. Notify the tribunal in advance that is what you are doing, so no point can be taken that a subsidiary issue was not put to a witness.
  2. Asking a witness what he or she thinks another person meant when writing a letter or a document. This is no more than conjecture and not evidence.
  3. Asking a witness to construe words in a contract – that is for the tribunal.
  4. Asking hypothetical questions which are ex hypothesi not evidence.
– Hilary Heilbron QC, Brick Court Chambers

Determining whether to cross-examine a witness

An advocate must first decide whether a witness should be cross-examined at all and, if so, on which topics. A key factor in making this decision is whether the applicable procedural rules, often found in Procedural Order No. 1, provide that the absence of cross-examination results in the content of the witness statement being automatically admitted or the opposite. In the former case, it will be difficult to avoid cross-examination. In the latter, the question is more delicate, bearing in mind not cross-examining any witnesses at all or not cross-examining a key witness or expert is probably a bad idea. That said, there are cases where one party chooses, for tactical reasons, to multiply the number of witnesses or experts on the same topic. In such cases, it may be judicious to choose only some of them.

Given that international arbitration often operates on a chess-clock system,[4] choices probably need to be made as to which witnesses are worth cross-examining.

There are four types of factors that an advocate should consider when selecting which witnesses to cross-examine.

Hard consequences

There are certain technical consequences that flow from the decision not to cross-examine a witness. These consequences can be referred to as ‘hard’ consequences and must be taken into account when making the decision to cross-examine or not. Depending on what Procedural Order No. 1 (or its equivalent) provides, the content of the witness statement may or may not be admitted automatically, the arbitral tribunal retaining the discretion to weigh the probative value of the testimony. If the rule is unclear, it is worth asking the tribunal to clarify it prior to taking the decision to cross-examine.

Soft consequences

An equally important consideration relates to the background and personalities of the arbitrators.[5] It is very possible that more senior common law arbitrators will be more likely to draw an adverse conclusion from a decision not to cross-examine a witness than a civil law arbitrator. However, civil law arbitrators are not necessarily less inclined towards cross-examination, particularly because such arbitrators often have extensive experience in international arbitration and will, therefore, be very familiar with the procedure.[6] For example, as arbitrator, I consider cross-examination to be a very important component of the process of evaluating witness or expert evidence.

Time available

An advocate should further consider the number of witnesses testifying on behalf of the opposing party and the time available to cross-examine them. Regardless of how time is allocated between the parties, it is not unlimited during a hearing. As always, the advocate should focus only on what is most important. In addition, some witnesses may be dropped altogether in the hope that the arbitral tribunal will not unduly focus on their witness statement if it does not hear them at the hearing.

Overlapping witnesses

An advocate may be presented with multiple witnesses testifying on the same topic. A temptation will be to cross-examine only the witness perceived as the weakest one. This may well work, if the weakest witness can be identified. Depending on the time available, another possibility is to cross-examine them all. This is because the tribunal’s decision on that topic will likely be driven by the lowest common denominator. A key rule is never to come back on a topic that has been successfully explored with a previous witness. When two witness statements overlap and a satisfactory answer has been obtained on a given topic when cross-examining the first witness, it is generally not a good idea to discuss this topic again with the second witness. At best, the second witness will confirm the answer of the first witness. At worse, the second witness will give a different answer, thus confusing the record on a point that had initially been scored.

Preparation

First, as has been noted by others, the single most important component of preparation is rigour and thoroughness. The famous golf professional Gary Player is reported to have said, ‘The harder I practise, the luckier I get.’ The same applies to preparation for cross-examination. There is simply no substitute for hard work. Knowing the file perfectly will enable the cross-examiner to navigate between topics.

Avoid harassing or needlessly embarrassing a witness

Tribunals appreciate counsel who maintain a respectful, moderate tone throughout their cross-examinations. Harassing or needlessly embarrassing a witness will not sit well with the tribunal. In fact, an overly aggressive approach may lead the tribunal to sympathise with the witness – an outcome that is best avoided. I was involved once in a hearing where a witness broke down in tears in response to unnecessarily hostile questioning. Even though the questioning exposed a falsehood in his witness statement, some members of the tribunal did not focus on that falsehood because they were distracted by the unpleasantness experienced by the witness.

– Stanimir Alexandrov, Stanimir A Alexandrov PLLC

Second, and this is directly linked to the previous remark, an advocate should keep in mind that cross-examination is not, and cannot be, a linear exercise. The facts and the arguments do not proceed linearly, and the advocate should therefore be prepared to think laterally,[7] or, more exactly, according to a matrix system. One question on a given topic may lead to another interesting topic, and a good cross-examiner has the ability to open a parenthesis, explore this second topic, and then come back to the initial topic. For this reason, I find it much more effective to prepare topics instead of questions. An advocate will only be able to ask clear and cogent questions if he or she has a clear and cogent understanding of the topics and the facts. An effective way of doing so is by visualising the case through a matrix with the arguments and facts for each topic.

Third, a civil law trained practitioner in particular should make sure to practise the technique of putting questions together. Questions should, in principle, be closed, leaving as little leeway as possible to the witness answering the question.[8] At the same time, the question should lay the groundwork for a future question, which the advocate should always attempt to anticipate. It is particularly important for the civil law trained advocate to practise this technique, as he or she will probably not be as familiar with it as the common law trained advocate.[9] That said, the exercise is not mechanical, and it is simply wrong, for example, to say that you should ask questions only if you know the answer to them. A seasoned cross-examiner can go fishing with often a lot of success.

Fourth, an advocate should remember to prepare more than simply the witness statements. If the witness is an expert, then the advocate should be aware of that expert’s works.[10] If the witness is a fact witness, then the advocate should be prepared on a broader factual matrix than those on which the witness is testifying, and be familiar with documents that concern this witness, even though no questions may.

Finally, an advocate should clearly identify in advance the points that need to be scored in the cross-examination, and never lose sight of these points. Only once this strategy has been clearly defined can the advocate make a realistic judgement about whether a point has been scored (or cannot realistically be scored) and move to the next.

Approach and style

Each advocate has his or her own approach and style to cross-examination, and none is necessarily better than another. There are enormous differences between common law practitioners, for example, between the styles of US-trained and English-trained lawyers.[11] The question really comes down to how an advocate wishes to be perceived. However, there are a few key parameters within which advocates must operate if they are to perform an effective cross-examination.

First, advocates must ensure they control the witness at all times. A cross-examination is by design an uneven exercise, and the cross-examiner has the advantage. This is because the advocate is the only one entitled to formulate the questions and the witness is more or less blind as to where the advocate is heading with the next question. The advocate must make sure never to give up this advantage. Too often arbitrators see advocates not being able to control their witness and this produces a disastrous impression.

Second, it is essential that the tribunal follow the advocate’s line of questioning. An advocate should never forget that the ultimate audience is the tribunal, and the advocate’s behaviour and framing of questions should be directed at persuading the tribunal. At the very least, the advocate should make sure that the tribunal does not get lost in the way. In this respect, I consider a relaxed style, with perhaps a little touch of humour, to be most effective. In my experience, it is counterproductive in international arbitration to be too aggressive with a witness. If an advocate is too harsh with a witness, a tribunal may be inclined to try and rescue that witness.[12]

Third, an advocate should recognise that testimony in arbitration is a very particular exercise. Large amounts of resources are dedicated to international arbitration cases. Similarly, cross-examination in international arbitration is a professional exercise and a tribunal will likely assume that a witness has been prepared.[13] The task of the advocate is to elicit the aspects of the testimony that have been prepared and contrast those aspects with the parts that have not been prepared. Quite often, the clarity and style of an answer will differ depending on whether the question posed has been prepared.

How to deal with clear untruths

Whether the arbitration is held under common law or civil law rules, it is depressing, but no longer surprising, to see how often the witness statements of fact witnesses contain deliberate untruths, as do their responses to cross-examination questions. (It is even more depressing that some supposedly reputable lawyers have had a hand in these witness statements.)

One of the objectives of cross-examination of fact witnesses is, of course, to reveal at least some of these untruths. This is generally accomplished by putting before the witness documentation or other witness statements from the same side that contradict the testimony. A laundry list of lies is not necessary, as revealing just a few key untruths will generally lead arbitrators, especially common law arbitrators, to discredit other contentious points made by that witness.

However, a second objective of cross-examination that is often ignored is using an opposing witness to lend support to points in your own side’s favour. Even the most carefully crafted witness statement can yield valuable support to facts that buttress the position of the other side, and self-incrimination is extremely difficult to counter.

 

Civil law arbitrators and cross-examination – a conundrum

There are two important differences between cross-examinations before common law and civil law arbitrators. First, in general, civil law arbitrators are more inclined to consider it normal that witnesses with an interest in the matter at hand will not necessarily tell the truth, and these arbitrators may be less influenced by a cross-examination that reveals such untruths than a common law arbitrator would be.

A corollary of this first point is that civil law arbitrators tend to give great credence to documentary evidence, and to favour such evidence over contradictory oral testimony. At the same time, civil law arbitrators can be more reticent than common law arbitrators to permit a document production exercise that would result in the disclosure of relevant documents. This is a circle that must be squared to the greatest extent possible.

The second difference between civil law and common law arbitrators is that the civil law arbitrator tends to be more protective of the serenity of proceedings and of the dignity of a witness on the stand. A harsh tone, raised voice, or insulting comments by the cross-examiner may lead the civil law arbitrator to become protective of a witness, which is quite the opposite of what cross is intended to accomplish.

In sum, because cross-examination is an art, not a science, the lawyer/artist questioner had best be ultra-sensitive to colours, style, brush stroke and even the frame of the painting that they hope the arbitrator will admire.

– Stephen Bond, Covington & Burling LLP

Making use of witness statements

A witness statement is the written testimony of the witness and usually forms the basis of a cross-examination. Therefore, the first issue to check, again in Procedural Order No. 1 or its equivalent, is whether the cross-examination is restricted to the content of such statement. This will help the advocate frame the approach to the questioning. If the rule is unclear, an option is to try to clarify it. Another option is to say nothing, and wait to see whether the opposite side raises an objection.

An advocate must in any event decide how to use the witness statement. As I have mentioned above, I do not consider a cross-examination to be a linear exercise, and am accordingly not inclined to go through a witness statement from beginning to end. As also mentioned above, an advocate should formulate a clear idea of which points need to be scored from a particular witness. The clearer the objective of the cross-examination, the easier it will be for an advocate to choose which topics to focus on, from what can be quite a lengthy witness statement.

An advocate should finally keep in mind that witness statements are usually drafted by lawyers, and the language, while not necessarily false, will have been carefully considered. A witness will usually be more straightforward in a hearing, and the lawyer’s spin in drafting the statement may be exposed. An advocate should, therefore, elicit the lawyer’s phrasing and, to the extent that an answer in cross-examination differs from the witness statement, an advocate should be prepared and able to point that out immediately.

Handling and presenting documents

There are two purposes to handling and presenting documents in a cross-examination.

The stated purpose is to confront a witness with a document to verify the accuracy of that witness’ testimony.

The collateral purpose, which an advocate should always keep in mind, is to present the tribunal with a series of documents in a chronological order together with the witness’s commentary. The effect of doing so will be to establish in the tribunal’s minds a certain impression about the sequence of the relevant facts, the credibility of the witness, the documentary record and the questions that the tribunal must decide. Perhaps more importantly, this exercise will force the tribunal to read the most important documents both in context and in a chronological order.

The impression that an advocate wishes to create in the tribunal’s mind should be well thought out in advance, because it will influence what kind of questions to ask. It forms part of the preparation process described above. If the advocate is well versed and clear on the objectives of the cross-examination, the documents, the facts, the issues and the submissions, including the witness statements, then he or she will be able to ask the types of question that will create the desired impression in the tribunal’s mind. Some of those questions will be directed at the witness’s opinion about documents, and others will concern the background and the context. Those questions only become clear to advocates once they clearly understand the objective.

Equally important is the handling of documents. I consider it a good habit to always give a copy of a document to a witness, if necessary in original and translation, to avoid a future objection. I find it most helpful to collect these documents in a witness bundle, that can be organised by topic and chronologically. A witness bundle makes it as easy as possible for the tribunal to follow the documentary record and can be a useful tool in deliberations.

On objections
‘The wise advocate keeps objections to the minimum’

Why do some advocates in arbitration insist on recording objections ‘for the record’? There is no appeal on the merits in arbitration, and arbitrators’ findings of fact are definitive. There is therefore no point in this habit; it can only annoy the tribunal. Some advocates who have inadequate trial experience make astonishingly foolish objections, such as complaining that a cross-examiner has asked a ‘leading question’. Cross-examination is all about leading questions such as: ‘Everything you wrote in this latter is untrue, isn’t that so?’

The wise advocate keeps objections to a minimum, perhaps ever so slightly rolling his eyes to show the tribunal that his opponent is wasting time by asking questions of his own witness that suggest the answer – ‘You took that precaution because you had learned that this person could not be trusted, is that right?’ – or asking improper questions of an adverse witness – but there will be no objection because the tribunal is wise and will give little weight to the product of poor questioning, so there is no need to use precious time by objecting. None of this means that proper objections should be suppressed when they make a difference, such as lack of foundation (‘She has never seen that document.’), privilege (‘This calls for revealing confidential legal advice.’) and harassment (‘He has answered that question twice already.’).

– Jan Paulsson, Three Crowns

Making and dealing with objections

Objections are another specific feature of cross-examination with which civil law lawyers may not be familiar. The first point to keep in mind when making objections is they are a tactical tool, and can be used to disrupt the opposing counsel’s cross-examination. However, an advocate should be sure to make only technically justified objections. Doing otherwise will jeopardise the credibility of the advocate who may lose the tribunal’s sympathy.

There are at least two instances in which an objection is appropriate. It can be used defensively when a witness is caught in a difficult position or offensively when the tribunal is becoming irritated with a cross-examiner’s line of questioning. In the latter case, a good advocate will detect when the tribunal is likely to intervene and will refrain from making the objection. It is always better to have the tribunal intervene in a spontaneous fashion. Regardless of the intended function of the objection, the use of objections should be scarce, as too many objections will produce an effect opposite to that sought.[14]

Finally, there is the question of how to make an objection. My personal preference is not to interrupt the lawyer asking the questions, as it may be perceived as aggressive and could even lead to a shouting match between counsel. Rather, I prefer to wait until the lawyer has finished asking the question and then to make the objection directly to the tribunal.

Advocates should also expect to receive objections to their questions. While a seasoned lawyer may have more flexibility in asking questions, as long as that flexibility is not abused, junior lawyers will be held to very strict standards. Nonetheless, junior advocates should not become too rattled by objections. Rather, they should always keep in mind that the game of making objections is a tactical one.

To avoid being flustered by an objection, the advocate should understand that there are options. First, if the objection is technically justified, the advocate should quickly concede the point and move on. Second, if the objection is not justified, the advocate has further options: he or she can either ignore it or raise it with the tribunal (not to the other side) by enquiring whether there was a problem with the question or whether the tribunal wishes the question to be reformulated.[15]

Difficult witnesses

A difficult witness can come in different forms. There are witnesses from whom there are not many points to score, either because there is not much to ask or because they are very well prepared. Advocates may find themselves in the difficult position of needing to cross-examine the opposing party’s main witness (therefore having not much choice but to cross-examine that witness) and not being able score many points. In such an event, an advocate should simply do his or her best and stick to easy points. A good cross-examiner will realise quickly whether a given witness is likely to lead to a useless testimony but will nonetheless test that witness sufficiently prior to making the decision to give up. This is because witnesses who have been well prepared may nonetheless lower the guards after some time in cross-examination. That point must be tested prior to deciding to stop the exercise.

Another type of difficult witness is combative witness. Such a witness will seek to give long, monologue-like answers, or aggressive answers. An advocate should not fear to politely and courteously admonish the witness.[16] For example, in response to an evasive answer, an advocate might say, ‘The question was whether or not you received the letter on 5 April, and I still expect an answer.’ An effective way to deal with a long-winded answer is to ask the witness whether he or she still remembers the question.

It is the advocate’s responsibility to control the situation. In the event, however, that the advocate cannot control the witness, the last resort is for the advocate to appeal politely to the tribunal for an intervention.

Re-cross examination

For a variety of reasons, advocates should not conduct a re-cross examination unless they absolutely have to. First, a re-cross examination is limited in scope and an advocate is typically not allowed to ask leading questions. Second, witnesses are likely to be extremely tired, and consequently will be less likely to make the connections that the advocate would like them to make, resulting in unpersuasive testimony. Third, the more advocates conduct a re-cross examination, the more they concede that the cross-examination was impactful.

If an advocate does decide to conduct a re-cross-examination, it should be limited to correcting the record if, for example, a document was only partly or incorrectly quoted. Short of very obvious mistakes, this should be avoided.

Notes


[1]      Philippe Pinsolle is the head of international arbitration for continental Europe at Quinn Emanuel Urquhart & Sullivan LLP.

[2]      John Henry Merryman and Rogelio Perez-Perdomo, The Civil Law Tradition (Stanford University Press, 2007) 3rd ed., p. 116 (‘Cross-examination, in particular, seems foreign to the civil law proceeding.’); see also Hans van Houtte, Counsel-Witness Relations and Professional Misconduct in Civil Law Systems, Arbitration International (Kluwer, 2003) Volume 19, Issue 4, p. 457.

[3]      Edward G. Kehoe, ‘Cross-examination and re-cross in International Arbitration’ in The Art of Advocacy in International Arbitration, Doak Bishop and Edward G. Kehoe eds. (Juris, 2010),p. 405-406.

[4]      David W. Rivkin, ‘Strategic considerations in developing an international arbitration case’ in The Art of Advocacy in International Arbitration, Doak Bishop and Edward G. Kehoe eds. (Juris, 2010), p. 163.

[5]      Rachael D. Kent, ‘An introduction to cross-examining witnesses in international arbitration’ TDM 2006, Volume 3, Issue 2, p. 1.

[6]      David W. Rivkin, ‘Strategic considerations in developing an international arbitration case’ in The Art of Advocacy in International Arbitration, Doak Bishop and Edward G. Kehoe eds. (Juris, 2010), p. 153 (‘The tribunal’s background and professional experience can influence their views on both procedural and substantive issues, and so they should also inform many of the choices to be made by the advocate throughout the course of the arbitration.’).

[7]      See also Edward G. Kehoe, ‘Cross-examination and re-cross in International Arbitration’ in The Art of Advocacy in International Arbitration, Doak Bishop and Edward G. Kehoe eds. (Juris, 2010), p. 410.

[8]      Anthony Sinclair, ‘Differences in the Approach to Witness Evidence’ in The Art of Advocacy in International Arbitration, Doak Bishop and Edward G. Kehoe eds. (Juris, 2010), p. 42 (‘Cross examination is typically conducted by means of tightly controlled and ‘leading’ questions, which suggest the answer within their own terms. This is the norm in most arbitrations. . . . Leading questions in cross examination are not considered a problem for two main reasons, first because the tribunal determines the weight to be accorded to any witness evidence, and secondly, because the opposing party’s witnesses are relatively unlikely simply to agree with propositions put to them by the other side’s lawyer on cross examination.’); Michael Hwang, ‘Ten questions not to ask in cross-examination in international arbitration’ in The Art of Advocacy in International Arbitration, Doak Bishop and Edward G. Kehoe eds. (Juris, 2010), p. 431.

[9]      Nigel Blackaby, ‘Witness Preparation – A Key to Effective Advocacy in International Arbitration’ in Arbitration Advocacy in Changing Times: ICCA Congress Series No. 15, (Kluwer: 2011), p. 131; Anthony Sinclair, ‘Differences in the Approach to Witness Evidence’ in The Art of Advocacy in International Arbitration, Doak Bishop and Edward G. Kehoe eds. (Juris, 2010), pp. 42–43 (‘In one recent arbitration, a German arbitrator admonished the English cross-examiner for asking leading questions, and instructed him only to ask questions commencing Who, What, Where, When, How and Why. This is of course diametrically at odds with normal practice and the advice repeated throughout the leading advocacy manuals for common law practitioners, which insist that “every question on cross-examination should be leading”.’).

[10]     Guido Santiago Tawil, ‘Attacking the credibility of witness and experts’ in The Art of Advocacy in International Arbitration, Doak Bishop and Edward G. Kehoe eds. (Juris, 2010), pp. 461–462.

[11]     See, for example, Anthony Sinclair, ‘Differences in the Approach to Witness Evidence’ in The Art of Advocacy in International Arbitration, Doak Bishop and Edward G. Kehoe eds. (Juris, 2010), p. 30.

[12]     Marinn Carlson, ‘The examination and cross-examination of witnesses’ in Arbitration Advocacy in Changing Times: ICCA Congress Series No. 15, (Kluwer: 2011), p. 205; Rachael D. Kent, ‘An introduction to cross-examining witnesses in international arbitration’ TDM 2006, Volume 3, Issue 2, p. 2.

[13]     Anne-Veronique Schlaepfer, ‘Witness statements’ in Arbitration and Oral Evidence, L. Levy and V.V. Veeder eds. (ICC Publishing, 2005), p. 68.

[14]     Rachael D. Kent, ‘An introduction to cross-examining witnesses in international arbitration’ TDM 2006, Volume 3, Issue 2, p. 8.

[15]     Id.

[16]     Id. at p. 6.