Cross-Examination in International Arbitration - Chapter 18 - ICDR Handbook on International Arbitration Practice - Second Edition
Originally from the ICDR Handbook on International Arbitration Practice - Second Edition
When it comes to cross-examination, Law and Order’s Jack McCoy is the wrong role model. I marvel how McCoy’s defendants cooperate in his long, windy speeches that pass as questions. I marvel again at lawyers in international arbitration hearings who imitate his style. They often learn an unpleasant lesson: long, windy questions invite long, windy answers that can damage the examiner’s case.
Every question to a hostile witness can bring rewards; an admission from an opponent can be more convincing than the combined testimony of several friendly witnesses. But every question carries risks; the examiner can unintentionally advance the opponent’s case. Commenting on one futile cross-examination, the U.S. Supreme Court once observed: “[T]he complainants commanded every available resource and all the ability and knowledge, both scientific, legal and common ... into an attempt to break a witness by cross-examination. A careful reading of this testimony, it seems to us, is convincing of itself and by itself of the truth of the story.”
To avoid the same fate, cross-examination must be a methodical interrogation. “Under the pressure of a strong cross-examination, the truth oozed out of this witness, drop by drop” is how another Supreme Court opinion described a successful cross-examination. For small drops to accumulate into the intended impression, counsel must have patience, a well thought out plan, and the skill to control an adverse witness.
Cross-examination has become the principal advocacy tool during arbitration hearings. The IBA Rules on the Taking of Evidence in International Commercial Arbitration (IBA Rules) are a compromise between the civil code and common law systems, with a healthy dose of practicality thrown in. Direct evidence is presented in advance of the hearing through written witness statements—a concession to practicality. Witnesses are required to appear at the hearing and subject themselves to their opponent’s questions. Opening statements, direct examination and even closing arguments are discouraged. Cross-examination has become the principal purpose of the hearing. The IBA’s inclusion of cross-examination reflects the strong bias of common law lawyers—found in Professor Wigmore’s frequently quoted testament to cross-examination—it is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”