Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
International arbitrations can be factually complex. As a result, and to avoid and save on costs, practitioners and arbitrators have developed the widely accepted practice of replacing the direct testimony of witnesses in hearings with detailed written statements of the testimony of each witness. The same practice, has not so far as we can tell been as widely accepted in domestic arbitration proceedings.
Witness statements are designed to accomplish at least two objectives:
• To reduce the time in hearings during which witnesses present their evidence in direct testimony, which is widely thought of as being, in any event, the product of careful rehearsal with counsel; and,
• To reduce the need for discovery because of the provision of the entirety of the testimony of the witness in advance of the hearing, thereby giving the other side the opportunity to counter this testimony with documents.
The first of these two objectives is widely recognized as being the primary rationale for the use of witness statements. The second is less recognized and perhaps more controversial. In this article we examine how witness statements are actually being used, and how they are being dealt with by party representatives and arbitrators according to our experience and on the basis of what we understand from anecdotal evidence.