“Take the Witness”: Cross-Examination in International Arbitration


Juris Publishing has issued a wonderful, concise and revelatory volume edited by arbitration gurus Larry Newman and Ben Shepard.  Take the Witness is a collection of do’s, don’ts, and real-life examples that thread the fine needle of cross-examination before a panel of international arbitrators — many of whom are unfamiliar with, and perhaps even skeptical of, this common-law tradition. 



It is said that international arbitrators prefer to rely on documents rather than witnesses, on the presumption that witness testimony is always self-serving and therefore of scant probative value.  Documents, on the other hand, say what they say without the need to waste time asking them.  Thus, in a forum where even direct testimony is often submitted by certification rather than by questioning, the problem arises where, when, how and why to cross-examine a live witness.

The contributors to this volume raise marvelous topics.  Is your purpose in cross-examination to undermine the direct testimony?  To emphasize selective facts and opinions proffered during direct but beneficial to your side?  To impeach?  To refocus the tribunal to parts of a document rather than the witness’ interpretation of it?  To refute?  To underscore partial agreement?  To argue?  To bring out what the witness failed to say or do?

Contributors Carolyn Lamm, Francis Vasquez and Matthew Drossos cite the first of their “Ten Guidelines for the Cross-Examination of Financial and Technical Experts” as “Know Your Purpose.”  It is not as easy as it may first appear, and becomes more complicated when layered with some of their other Guidelines, such as “Adapt To Your Audience,” “Focus On What The Expert Did Not Do,” and “Do Not Engage In Debates.”

The tone of these essays is as enjoyable as the content is enlightening.  John Townsenddiscusses the charmingly named practice of “hot-tubbing” expert witnesses — allowing experts to give their testimony concurrently and in each others’ presence so that any proffer may be immediately tested.  (Notes Townsend, “There is not much to be done with the paid liar other than to attack.”)  Hilary Heilbron and Klaus Reichert study the art of when to cross-examine, and when to stop cross-examination, by citing the authority of Kenny Rogers: “You got to know when to hold ’em, know when to fold ’em.”

Arthur Rovine, in his chapter on “Polite Cross-Examination,” fits in the story of the following colloquy:

Q: You’re not a partner in the firm, are you?

A: No I am not.

Q:  Why not?  Why are you not a partner in the firm?

The roster of contributors reads like a list of the greats in the field.  The mighty Laurence Shore writes on “Cross-Examination Without Discovery.”  David Haigh instructs us on “When to Be Friendly and When to Impeach.”  Robert Smit takes the bull by the horns and addresses “Cross-Examining Before Civil Law Arbitrators.”  And the richly experienced James Carter writes the final word on a notoriously risky decision: “The Perils of Cross-Examination in a Language Other Than the Language of the Proceeding.”

The book is eye-opening, entertaining and richly provocative.  It would be difficult to imagine a more authoritative single volume on the subject, and it is of inestimable value to counsel and tribunal alike.



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F. Peter Phillips
F. Peter Phillips is an arbitrator and mediator practicing through Business Conflict Management in Montclair, New Jersey. He is also the Director of the Alternative Dispute Resolution Skills Program at New York Law School where, as Adjunct Professor, he teaches Alternative Dispute Resolution, Negotiation, and International Commercial Dispute Resolution. www.businessconflictmanagement.com