Cross-Examination in International Arbitration -- Opportunities and Challenges - Chapter 18
As arbitration strives to become more efficient by avoiding burdening itself with the complexities of litigation, its practitioners have striven to slim down the length of oral hearings. A notable movement in this respect has been the substitution of written documents – usually referred to as “witness statements” – in place of the eliciting of witnesses’s testimony orally. Witness statements have the advantage of occupying no hearing time (other than perhaps a brief oral questioning of the witness to “warm to the seat,” in American parlance). Another advantage is that the testimony of witnesses is known in advance of the hearing.
The result is that the traditional hearing in which testimony is taken is turned upside down: the great bulk of the time is taken by adversarial questioning of the witnesses as to their statements. In a very real sense, hearings in international arbitration have become about the cross-questioning of witnesses – an atmosphere of confrontational examination of witnesses.
This development in the hearing of commercial and investment disputes presents opportunities and challenges – opportunities to those seeking to undermine testimony and to the arbitrators who wish to put their own questions to witnesses, and challenges both to those whose task it is to question such witnesses and to those who must be questioned or prepare witnesses to be questioned.
Cross-examination is enshrined in United States law and practice, as one famous scholar on evidence put it, “the greatest legal engine ever invented for the discovery of truth.” It is also that part of the trial that one sees in motion pictures because it consists of the most dramatic moments in a trial – where there is confrontation between the testifier and the challenger of his evidence. The confrontation is for the purpose of bringing a story that is different from the one presented by the witness – an alternative view of the evidence that is more favorable to the position of the party represented by the crossexaminer.
Effective cross-examination involves the use of techniques, which, some lawyers say, one is born with and that therefore cannot be learned. Other lawyers teach cross-examination techniques because they believe there are skills that can be learned. In any event, lawyers who engage in it more frequently tend to be better at it.