In the United States, cross-examination is revered as one of the great “engines of truth” in the U.S. adversarial system of justice.Cross-examination is hard, frequently dramatic and a powerful tool of advocacy for the U.S. trial lawyer.
By contrast, in international arbitration, particularly those conducted by civil law arbitrators, U.S.-style cross-examination is often viewed with considerably more skepticism. Civil law lawyers are accustomed to the judge, as opposed to the parties’ counsel, taking the lead on the examination of witnesses in civil law judicial proceedings. Unlike a neutral judge’s questioning of a witness, a common law lawyer’s cross-examination of a witness is often perceived by civil law arbitrators as an advocate’s efforts to trick and embarrass the witness.Moreover, under the procedural laws of many civil law jurisdictions, representatives of the parties are presumed biased and deemed incompetent to testify. As a result, civil law lawyers simply have fewer opportunities to cross-examine adverse witnesses, and less exposure generally to cross-examination.
That said, cross-examination before civil law arbitrators – to be effective, elucidating and entertaining – must be done somewhat differently in certain respects than cross-examination before a U.S. judge or jury.These differences flow in large part from the different procedures, different evidentiary rules and, above all, the different legal traditions from which the decision-makers in U.S. litigation and international arbitration emanate. In the pages that follow, I share some of my thoughts on the similarities and differences in cross-examining witnesses in a U.S. court and before civil law international arbitrators. Based on my experience, cross-examining witnesses before civil law arbitrators is even harder, perhaps somewhat less dramatic, but often just as effective a tool of advocacy and engine of truth, as it is before a U.S. judge or jury.