Identifying and Avoiding Pitfalls and Mistakes in Cross-Examination - Chapter 10 - Take the Witness: Cross-Examination in International Arbitration - Second Edition
Nothing can be more devastating than delivering to one’s adversary a major concession or point of proof because a cross-examination has gone wrong. In crafting her or his cross-examination, the international arbitral practitioner must first and foremost follow the “Silver Rule”–“Do No Harm.” As one keen observer of the process noted over a century ago: “More cross-examinations are suicidal than homicidal. There are two reasons for this: mistaken conception as to the function of cross-examination, and faulty technique.
What follows is a series of reflections intended to prompt the newcomer to the international arbitral process to step back before lunging forward into what is typically the heart of every merits hearing—challenging the adverse party’s testimonial evidence through cross-examination of its witnesses. It would be wrong to assume that these observations are of no relevance to seasoned litigators who have only recently ventured into the world of arbitration. Those litigators, even experienced ones, who want to “try an arbitration” the same way they would try a court case are frequently criticized by experienced arbitrators for failing to adjust their (sometimes formidable) courtroom techniques to take into account the different dynamics of the arbitral hearing room. In fact, this criticism is central to the growing expressions of concern that the “litigification” of arbitration has put its very utility at risk.
Because establishing an arbitral record requires a different approach from establishing a record in a trial court, this analysis seeks to identify those aspects of the process which should be kept in mind by the arbitral practitioner when he asks himself before every hearing (as should be done regardless of experience level) whether the projected cross-examination has been best calibrated to have the maximum impact with the arbitrator(s) hearing the evidence. In a world where, to an increasing extent, a premium will be placed on streamlining the arbitral process, the practitioner’s ability to develop a keen sense of when and how less will be more may be the most valuable cross-examination skill of all.