Originally from Take the Witness: Cross-Examination in International Arbitration, 2d Ed.

This chapter is at best brave.  It is reminiscent of a professor’s response to a proposed topic for a paper – the topic too big for a lifetime of study, but perfect for a sophomore term paper.

There is vast literature on how to avoid disasters in cross-examination, including the excellent first edition of this book, which I mine liberally for nuggets, albeit in support of my own views.

This literature does not address in a systematic way how we know that the particular incident was a disaster (either in causing a case to be lost or in making it harder to win). The focus here instead is on the authors’ recommendations – the rules, the Commandments, the techniques, whatever – that provide you, the practitioner audience, with a safe harbor to Do No Harm.

The common lore on cross examination – the dos and (even more so) the don’ts – is derived from practice in jury trials in the United States.  However, it is not self-evident that this received wisdom should be automatically applied to the different context of international arbitration. Since juries do not explain how they reached their result, let alone whether a particular cross‑examination was a disaster, the evidence comes largely from the perception of counsel, pejoratively, their “war stories.”

Bench trials before a judge in the United States could provide better guidance for several reasons.  In the first place, any decision should be public and reasoned, and may include an analysis of the effect of the cross‑examination. In the second place, judges frequently will provide relevant guidance during a trial, and this information too may be publicly available.  In the third place, there is a growing literature on unconscious biases in decision-making, which may have a bearing on how judges (and arbitrators) reach decisions.