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The Guide to Advocacy - Third Edition

Cultural Considerations in Advocacy: United States

This chapter features text boxes by the following arbitrators:                                                        

Many courtroom and arbitration advocacy manuals exist. I am an avid skimmer of them. They contain rules, rules on when to break the rules, and anecdotes about riveting opening statements, lyrical closing arguments, and, above all, bone-crushing cross-examinations. These manuals often contain transcripts of actual hearing room combat, showing who followed the rules successfully, who occasionally broke them successfully, and who failed to do either. The author of the manual usually features in the successful categories.

After skimming one of these manuals, I look for the next one that will transform me into a better cross-examiner. And the next one. And I keep looking. Manuals are, after all, of minimal help when the assignment is not mechanical. Still, I do not want to be left behind if there is a breakthrough, and ‘auto-Advocate’ is introduced to the market.

So what can I recommend, from a US perspective, as an approach to cross-examination until such time as ‘auto-Advocate’ appears? And, directly related to the recommendation, when it does appear, will ‘auto-Advocate’ come in two versions, ‘auto-Advocate-civil law’ and ‘auto-Advocate-US law’, because there are, at a minimum, two different conceptions of effective cross-examination style (leaving aside English-Australian-Non-Quebec Canadian common-law styles)?

Let me try the second question first, which feeds back into the recommendation question. The short answer is: one overarching version, not two separate versions. The reason is that US cross-examination is not about calling every witness a liar and deploying pit bull thuggery in asking questions. That is bad cross-examination, and it is practised by both common law and civil law advocates. When arbitrators, usually civil law-trained, complain about US cross-examination style (meaning that of the pit bull cross-examiner) afflicting international arbitration, they seem to forget that the nastiest practitioners of bad cross-examination are not exclusively from the United States.

However, there is a much subtler concern and complaint about another, much less loathsome aspect of US cross-examination. This is actually the aspect that might otherwise be regarded as effective and appropriate cross, and not just from a US perspective. It is what many practitioners from many jurisdictions usually seek to execute. This good aspect may be described as a traditional rules-based cross-examination, in which the witness is tightly controlled through a series of ‘closed’ propositions to which the witness must either answer yes or no, with little or no opportunity to explain, and if he or she answers no, there is either a document to impeach the witness or the witness looks unreasonable rejecting the proposition. Rules-based cross-examination means making sure that as examiner you do not ask any question to which you do not know the answer. In fact, in constructing such an examination, you are not actually preparing questions; rather, you are creating a list of statements, and simply adding the phrase ‘isn’t that right’, at the end of each statement, so it looks like a question but really it is not – they are closed propositions or ‘leading questions’. You are never, or almost never, going to pose ‘why’ or ‘when’ or ‘how’ questions, because then the witness will have an opportunity to explain his or her answers, and you will lose control of your cross-examination. The goal is to put your words in the witness’s mouth.

As the pre-eminent exemplar of rules-based cross-examination, Irving Younger, put it: ‘Never permit the witness to explain anything on cross-examination. That is for your adversary to do.’[2]

But here is how I first experienced the concern and the complaint. Early in my career as an arbitration advocate, I executed what I thought was a pretty good, by-the-book, cross-examination in the Irving Younger mode I have just described. I kept the witness on that short leash of closed propositions with no room to wander. I did so without any name-calling or insults; thus, I would say, I was inoffensive, but persistent in sticking to my meticulously prepared script. I was even relatively brief.[3]

During the ensuing coffee break, the tribunal chair, an experienced and very distinguished French arbitrator, who, sadly, passed away a few years ago, came over to me and said, ‘That was a well-prepared, very disciplined, very professional cross-examination. Impressive. Unfortunately, I must tell you that for me, and I believe for my co-arbitrators as well, your cross-examination was worthless. And to help you, I will tell you why: you gave the witness no opportunity to explain why he did what he did. The tribunal is interested in why, whereas you are interested in rendering the witness of no assistance to the tribunal. The tribunal already knew the answers to your questions and learned nothing from them.’

So, that hurt my feelings. And, I admit, even though I am not currently under oath, it angered me: my job was not to commit malpractice by giving the witness an opportunity to charm the tribunal and bury hard issues in an explanatory fog. My adversary did not appear to me to be particularly interested in giving my witnesses a chance to say why they did what they did, though his tight leash was accompanied, I noted, by a charming Swiss (German) accent.

‘Effective oral advocacy in IA generally does not require standing’

It is not uncommon for US lawyers, particularly those who are relative newcomers to international arbitration proceedings, to leave the counsel’s table and to stand at a podium facing the arbitrators when delivering oral opening and closing statements. Usually, the lawyer’s presentation is accompanied by a slick (and frequently lengthy) PowerPoint presentation. I have never seen lawyers of other nationalities make their oral submissions from a standing position (unless possibly compelled to do so for medical reasons), although the American fondness for PowerPoint slides is not uniquely American, and their use today in international arbitration proceedings is widespread.

Now, I have never seen an international arbitral tribunal object to a US lawyer standing and facing the tribunal, and I have no particular issue with an advocate wishing to do so. However, if US lawyers believe that by adopting a vertical posture, their oral advocacy will be more effective in an international arbitration, I would have little hesitancy in disabusing them of that notion. Effective oral advocacy in an international arbitration generally does not require standing and can just as effectively be accomplished sitting down. Standing, moreover, tends to add a layer of formality to a presentation in a proceeding where the advocate should be seeking to establish a comfortable and relatively informal rapport with his or her audience (the tribunal), rather than delivering a formal speech to them.

– Eric Schwartz, Schwartz Arbitration

Moreover – and this was the part that really frustrated me – why was it my responsibility to extract explanations from the witness? Isn’t that what the witness statement is for? The tribunal chair should not have had a go at me; he should have had a go at the other side for adducing a lengthy, tedious witness statement that read like a legal submission – which it in fact was – rather than the witness’s narrative of what had happened to ruin the construction project.

In retrospect, I think both the tribunal chair and I had reason to be frustrated – he by my cross and I by his reaction to my cross. And I also think, in retrospect, that we both had a point about the reasons for our respective frustration – he was right about the limited value (or as he put it, ‘worthlessness’) of my series of closed propositions, and I was right that his real gripe was with the limited value of submission-like written witness statements in international arbitration. Let me say a few words on behalf of the tribunal chair, and then let me say a few words on behalf of the cross-examining counsel.

From the chair’s point of view, the closed propositions were little more than a series of demands for admissions on matters of little import. He had read my side’s submissions, and restating them in the form of non-question questions and getting the witness to assent to ones on which the case did not chiefly turn offered little assistance to the tribunal. If I knew the predetermined answers, so, too, did the arbitrators. His view was that, in doing this, I was indicating to the tribunal that I did not want it to get to the truth of the matter. Rather, I wanted to obscure the truth, or, put more generously, I only wanted the tribunal to see one side’s truth, whereas I should have assisted the tribunal in seeing both sides’ truths so they would be in the best position ultimately to decide in favour of one side’s truth. Open-ended questions instead of closed propositions, therefore, constituted, in the chair’s view, the more useful approach to cross-examination.

‘Effective advocacy does not necessitate lengthy PowerPoints’

I have nothing particularly against PowerPoint slides, which can be useful when used relatively sparingly, primarily for the purpose either of illustrating complex technical matters or of presenting key evidence (and saving the tribunal the effort of having to look it up in a voluminous set of documents).

Too often, however, slides are used to lay out the arguments that have already been made in pre-hearing written submissions and operate as a straightjacket that actually detracts from the effectiveness of the advocacy. More importantly, they have the disadvantage of directing the tribunal’s attention to the slides, while the effective advocate’s principal objective should be to establish eye contact with the tribunal: to have the tribunal looking at him or her, while the advocate is looking at the tribunal, as if the advocate were having a conversation with the tribunal, thus placing the advocate in a better position to gauge the tribunal’s reactions (from the raising of an eyebrow, to a quizzical stare or inattention or boredom), thus signalling to the advocate whether it is best to adjust course, to add additional emphasis or simply move on to the next point. Effective advocacy does not necessitate a lengthy set of PowerPoint slides.

– Eric Schwartz, Schwartz Arbitration

For my part, the chair’s discontent was not with my cross-examination style but with the witness’s uncompelling witness statement, which precluded the chair from preparing properly and reading the statement closely enough (and remembering it) in advance of my cross-examination, in turn causing him to be unable to appreciate that my series of closed propositions demonstrated the negligible evidentiary weight of the witness statement and, therefore, the witness’s testimony. Additionally, the chair’s discontent was with the size of the file and the voluminous exhibits, which meant that he also could not prepare properly and could not appreciate that, when I posed a series of closed propositions (supported by documents) to the witness on topics that the witness had omitted from his witness statement but had knowledge of and omitted precisely because they were problematic for him, I had shown that the witness had rendered himself of little assistance to the tribunal. The tribunal should not expect me to give the witness a chance to invent a narrative by asking ‘why’ questions when the witness had chosen to avoid committing himself to taking a position in his witness statement.

The chair and I were not far apart on the matter of ineffective witness statements divesting both direct examination and cross-examination of usefulness, precisely because, when drafted like legal submissions, witness statements are not of much value even before cross-examination commences. Everyone also knows that even if counsel had the talent of Flaubert or Gide (I would have just said Hemingway, but I wanted you to think that I read something in addition to manuals and American novelists), those witness statements would be a pretty dreary read. You rarely see them quoted in awards – which may suggest that the cross-examiner need not be so intent on eviscerating them. And there does not seem to be much of a solution to the problematic reality of the distortion of written witness testimony into legal advocacy.

Oral direct examination, a feature of American but not English civil trials, is certainly not going to make any sort of sustained appearance in international arbitration beyond ‘warm-up’ questions. Even if it did, it could not begin to solve cross-examination difficulties without the related mechanism of discovery depositions, which are definitely not going to make any sort of appearance in international arbitration. The reason: even with an email treasure trove of documents, when you cross-examine you want to have some sort of idea of what the witness will testify. Oral direct examination without depositions means blind cross-examination. It should be remembered that rules-based ‘closed proposition’ cross-examination in the United States grew from the circumstance that the judge, jury and cross-examiner had just heard the witness testify orally, but the cross-examiner also usually had a deposition transcript that enabled him or her to work up the closed proposition script and not be thought unfair to the witness in doing so – the witness, after all, had just had a full opportunity to give full explanations in response to friendly questions on direct examination. But that does not work in arbitration: the tribunal has not seen the witness explain before the unfriendly cross-examination begins.

For several years I have suggested an alternative to written witness statements that would be more likely to give the tribunal a sense of the witness before cross-examination begins. I have proposed that a video of direct examination stand in place of the written narrative. Alternatively, if video was not justified by the amount in dispute, there could simply be the transcript of questions and answers. The point here is that either way, the witness would actually be testifying rather than counsel providing a submission that is allegedly in the witness’s voice. With the video, the tribunal would, of course, actually have a sense of the individual before the live cross-examination begins. And the tribunal would actually have heard the witness’s explanations of his or her position on direct examination, so that the cross-examiner would not need to do what my French chair wanted me to do, which was to pose open-ended questions. Since the witness has already given his or her explanations, rules-based cross can proceed and would actually serve as a real test of the witness’s evidence.

This is not to say that the witness should not be prepared by counsel. There is nothing to be gained from surprising a witness. Witnesses should be confronted and prepared by counsel in advance of their statement, whether that statement is presented in the form of a video recording, or the standard written witness statement. A confident cross-examiner is never going to be worried about a well-prepared witness. Regardless of witness preparation, inconsistencies with documents or incredible sequences of events, or simple unreasonableness emerge from good cross-examination.

Patting myself on the shoulder, I think this video or ‘Q&A transcript’ idea is really good. The problem is this: no one else is patting me on the shoulder. To my knowledge no tribunal has ever ordered it. I am going to keep suggesting it, because it is a really good idea. But I fear that ‘auto-Advocate’ has a better chance of making its debut before my video or transcript direct examination is adopted in Procedural Order No. 1.

So, back to reality, we are left with cross-examining based on the written witness statement. I do not see much of a substitute for this. Some suggest that the arbitrators should instead interrogate the witnesses, making counsel cross-examination a mere sideline feature. After all, the arbitrators should know better than anyone else what they are interested in. But as a practical matter, in a big, reasonably complex file, there is no way that the arbitrators can do this: they simply have not studied the file like counsel have done. The arbitrators do not know enough about the file to conduct the interrogation. In short, in a reasonably complex case, it is not until well into the merits hearing, after they have heard good or even bad cross-examination, that the arbitrators actually know what they should be interested in so they can ask sensible questions and deliberate sensibly. That is no criticism of arbitrators; rather, it is the reality of big, complex files. I have difficulty accepting that the vast majority of in-demand arbitrators, even granting them a high degree of diligence, have the time to read and assimilate, in advance of witness oral examination, the documentary evidence, witness statements, memorials and expert reports that parties typically produce in complex cases.

In these circumstances, I submit that it is necessary to embrace the bad facts: not only are written witness statements – including bad, ineffective ones – here to stay, but cross-examination by counsel is also here to stay. And, when counsel cross-examine, they often have to appear before a mixed civil law and common law tribunal. So counsel, particularly from my US jurisdiction base, need to take into account the unhappiness with closed propositions and rules-based cross in the manner that my French chair expressed to me. In this light, I offer for consideration a few non-manual recommendations or cautions, not rules (I finally am addressing the first question that I posed at the outset) on cross-examining. Again, these stem from a US perspective. Before getting to some positive points, as in what might be a useful approach, let me indicate some foundational points; failure to follow these will almost surely result in an unsuccessful cross, whether your accent is American or not. Plus, it is just plain wrong to breach this foundation.

Foundational

  • Keep your inner pit bull chained up.
  • Practise basic fairness to the witness (the New York Bar Professional Conduct Rules, paraphrased here, provide a good guide), by not doing the following when you cross-examine:
    • raise any matter that you do not reasonably believe is relevant or that will not be supported by admissible evidence;
    • assert personal knowledge of facts in issue;
    • assert a personal opinion as to the justness of your client’s cause; or
    • ask a question that you have no reasonable basis to believe is relevant to the case and that is intended to degrade a witness.
  • This last conduct point is sometimes referred to as a ‘collateral credibility’ attack. This is a familiar US cross tactic. You suggest that, because the witness was not truthful about something completely unrelated to the matters at issue, he or she is not being truthful in his or her present testimony. Some US jury trial lawyers liken this to the ‘ink in the cup of milk’ technique: put one drop of ink into the cup, and no one wants to drink any part of the bowl. But arbitrators are not identical to US jurors (though they are not completely unlike jurors), and even many jurors are willing to say that just because someone is shown to be unreliable in certain respects does not mean that they are unreliable in all respects. Maybe if your tribunal is constituted by three US jury trial lawyers you can try a collateral attack, but I doubt that many people reading this Guide are going to be appearing before three US jury trial lawyers.
  • Avoid a slavish devotion to leading questions. If you occasionally break up your leading questions sequence with short, open-ended questions that do not call for extended explanations, you will not look like you are simply exercising a technique that you learned at a seminar on cross-examination.
  • Usually, it is not helpful to the tribunal if you simply organise your cross to follow the structure of the witness statement and simply show the statement’s unreliability. That is good to do for a couple of sections of the statement, particularly sections that are of some importance to the case, but merely challenging the statement sentence by sentence is something to save for your next life, when you cross-examine witnesses in the English High Court.

Learn to read the room

Every arbitration has its own culture. No algorithm or artificial intelligence will completely sniff it out. It is always unique and sometimes subtle. Advocates who hone in may adapt to, shape or even resist the case culture but will surely benefit from understanding it. Those who miss it will be at a distinct disadvantage.

Much has been written about cultural distinctions between the civil and common law traditions, the inquisitorial tribunal as against the adversarial system and the benefits of harmonisation. Attention to these factors should not obscure that in every commercial arbitration, there are a lot of individual actors, including parties, companies (with corporate cultures), counsel, witnesses and arbitrators. In many cases, human factors, less binary and more complex than classic cultural divides, may prove more important. And while individuals are shaped by their cultural background, life experience and policy preferences, in any particular matter they may react against type.

It is critical, then, to understand the human element in every case and the way in which the unique mix of humans who have come together is functioning. Be attentive to whether the arbitrators, to use Professor Draetta’s phrase, are visibly a ‘triad’, working in an integrated and complementary way or if there are signs of stress, silos or even hostility. Note in real time whether the tribunal seems interested and engaged or bored; receptive to opening statements or impatient to dig into the facts. Consider how aggressive questioning, legal arguments, logic or even humour will land with this group of individuals. The advocates’ relationships with each other and the tribunal may have an impact. Cultural background and experience have the potential to impact how deferential an arbitrator will be to expert testimony and how documentary and witness evidence will be perceived, but we cannot assume how these predilections will unfold in an actual case.

Too often, I think, counsel seem inattentive to what is happening in the room and unprepared to adjust. There is the advocate who ploughs on with an unwelcome US jury-style opening, persists in objections the tribunal has made clear it doesn’t want to hear or in arguments the tribunal has heard enough of. Sometimes even major cultural issues of the moment may be a subtle influence though they are not directly relevant. Life assuredly would be easier for the advocate if it were possible to sit in one’s office and define in advance cultural issues in terms of nationality, legal tradition, race, gender or other objective information about the tribunal. All that may be relevant, but it is surely just a start. Real-world arbitrators may not be predictable in their outlook and, indeed, may act in ways that are counter-intuitive to a fact-based profile. The wise advocate will be prepared to pivot in reaction to the real-time dynamic of what is happening in the room.

– Mark Morril, MorrilADR

Speak with, not at, the arbitrators

Throughout my career as a lawyer, I stood in awe of the great oral advocates (co-counsel and adversaries alike) that I encountered in US litigations and international arbitrations. I admired (and envied) the confidence of their voices, the eloquence of their words and the majesty of their presentations during oral openings, closings and other arguments. I admired them so much, I didn’t always even hear what they actually said.

My perspective has changed since I began sitting as arbitrator, initially part-time while I continued to practise as an attorney, and now full-time since my retirement from my law firm. As arbitrator, I still admire the skill and performances of the great orator advocates who appear before me, but I find myself more readily persuaded by advocates who adopt a conversational, less dramatic, approach to oral argument. When lawyers speak with me as person to person, rather than at me as performer to audience, the psychological distance created by our respective roles as advocate and arbitrator narrows, and I find myself more focused on what they say than on how they say it. The conversational argument remains a performance, of course – and not an easy one – but it is a performance that engages as much as it impresses.

Speaking with, rather than at, your arbitrators is a matter both of style and of substance. As for style, the advocate who speaks with arbitrators prefers to present argument from his or her seat rather than from behind a podium, adopts a conversational tone rather than an argumentative one, and refers to his or her notes as little as possible in order to maintain eye contact with the arbitrators. As for substance, the advocate puts him or herself in the arbitrators’ shoes (empathises with them, in non-legal parlance), identifies with candour the issues the arbitrators are likely struggling with, and explains why his or her proposed solutions to those issues are the most sensible and fair. ‘Let me try to address the key questions that I imagine the tribunal may be asking itself... ,’ the conversational advocate might begin. And just as conversation is both give and take, so is the persuasive advocate’s argument both assertion and concession. While many lawyers are reluctant to concede anything on any issue, the most persuasive ones concede what should be conceded – and find something to concede if no other concession is apparent. Concessions beget credibility, in life and in law. Persuasive advocates use candour and concession to gain in credibility more than they lose on the merits.

The best way for an advocate to appreciate the power of speaking with, as opposed to at, arbitrators is for the advocate to serve as an arbitrator himself or herself. I can think of nothing in my career as an attorney that improved me more as an advocate than my experience as an arbitrator.

– Robert Smit, Simpson Thacher & Bartlett LLP

On the positive side, can I recommend a possible approach to preparing a cross-examination, among many others that other arbitration counsel can undoubtedly point to as being just as effective, if not more? I am willing to put forward the following for consideration. In doing so, I shall note that my co-author, not American by birth or training, but with substantial exposure to American lawyers cross-examining witnesses in international arbitration, and having spent years of professional life in the United States, has not dissented.

  • Focus your examination on topics that you know the arbitral tribunal will be interested in, because the topics relate to the key issues in the case. A successful examination on collateral issues must be conducted very sparingly, particularly – but not only – when appearing before non-US arbitrators. It is more often than not a waste of time, just as collateral attacks on credibility are largely a waste of time.
  • The cross-examination, therefore, should not be structured in parallel to the witness statement’s structure.
  • Clarify in Procedural Order No. 1 that the tribunal will permit you to cross-examine on topics omitted in witness statements, and pay particular attention to those topics (assuming the witness has personal knowledge of them).
  • Try to start with a sure thing; that is, pick a topic in which you know the witness has to give you what you want or you will impeach him or her with a document. This will establish initial control over the witness and may enable you to ask more open-ended questions later, with less risk.
  • Sequencing and topics and closed propositions are key. Consider:
  • For each topic, draft a line of cross-examination that may last 10 to 20 minutes, depending on the documents that you have at your disposal. Write out how you would like the examination to proceed, ideally, in closed proposition format.
  • Then determine the order in which you will pursue the various topics. Order and logical structure in sequencing are appreciated by US and non-US arbitrators alike.
  • Then go back into each line of cross and sequence the questions so that you have thought through every way the witness could answer and what you would do in response.
  • Do not leave to chance when you are going to use a document to impeach. And if you do not have a document to impeach if you do not get the answer you want, be prepared to move on in a way that you will not look defeated.

Finally, don’t be fearful of explanations or ‘blurt outs’ from the witness, especially if the explanation means that the witness has not answered your question. You can always repeat your question. Arbitrators usually know a prepared speech, deployed by the witness as a diversionary tactic, when they hear one.

You will rarely be criticised for keeping your cross relatively brief. A French chair or even a US chair might praise you for that. So my co-author and I are stopping now.


Notes

[1] Laurence Shore is a partner at BonelliErede. The author would like to thank Amal Bouchenaki, counsel at Herbert Smith Freehills, for her contribution as co-author of this chapter.

[2] Younger, ‘The Art of Cross-Examination’, ABA Annual Meeting in Montreal, Canada, August 1975. See also the final sentence of Commandment 3: ‘You should put the witness on autopilot so that all of the answers are series of yes, yes, yes!’ And ‘Commandment 4: Never ask a question that you do not know the answer to. Cross is not a fishing expedition in which you uncover new facts or new surprises at the trial.’

[3] Id., Commandment 1: ‘Be brief, short and succinct.’