Cross-Examination without Discovery: Not Blind, but with Blinders - Chapter 7 - Take the Witness: Cross-Examination in International Arbitration - Second Edition
U.S. litigators are almost always missing something when they prepare their cases for an evidentiary hearing in international arbitration – they are missing deposition transcripts. Typically, in an international arbitration discovery depositions are not part of the parties’ information exchange. As counsel, you normally learn of the witness evidence (both factual and expert) of the opposing party through written witness statements (or expert reports). Depending on the procedural timetable implemented by the arbitral tribunal, you may receive two rounds of such statements, with the second statement being a reply to first round statements of the opposing party’s witnesses. But whether one round or two, when you cross-examine the witness at the evidentiary hearing before the arbitral tribunal, you will not have had a previous opportunity to see the witness, much less ask questions of her.
The witness statement will be a recapitulation of what the witness wishes to say, in the way she wishes to say it, omitting topics and questions that the witness wishes to omit. Indeed, the great likelihood is that the witness will not have written her witness statement, nor will she have made the decisions on what topics to include or omit: your opposite number will have performed those tasks, which is why so much written witness evidence in international arbitration reads like a carefully constructed legal brief.
In these circumstances, what should you do, as counsel, to prepare your cross-examination at the hearing? The first point of your preparation should be attitudinal: do not despair, even though you do not have the comfort of relying on a deposition transcript (or video). There are two principal reasons for maintaining your equanimity. First, you will not be going into the arbitral hearing blind: a witness statement, for all its defects, often provides a reasonably substantial account of what the witness knows or purports to know, and, as discussed below, you will usually have a sufficient volume of documentary evidence with which to test the witness’s account, if you have approached the issue of document production with some care in an earlier phase of the procedural timetable.