Originally from Take the Witness: Cross-Examination in International Arbitration, 2d Edition

Are there moments in your life when you and your spouse, from out of the blue, both bring up the same subject?  Are there times when in a business meeting with someone, both of you know that there is a subject that is lurking behind small talk that neither one of you is quite willing to bring out into the open?  I had a client who was a very successful Latin American businessman, who told me that as soon as he entered a room full of strangers, he could sense how best to comport himself before them, in order to make the best impression.  How could he do this?  And so quickly?

These are commonplace examples of the kind of non-verbal communication that goes on between human beings.  It is this kind of non-verbal communication that I discuss in this chapter.  I call the phenomenon of mutual awareness between questioner and witness in a hearing “intuition,” for want of a better word.  What it is, is a product of the intensity of the focusing between two persons on an important subject, one that both the questioner and the witness know very well.

I.   How Intuition Leads to Rapport

An example of this kind of intuitive communication in the context of an evidentiary hearing occurred in a deposition that I took several years ago in an employment discrimination case.  I was, as counsel for a defendant foreign bank, questioning the plaintiff who was a former officer of the bank. Although the plaintiff had strong grounds for his unlawful discharge we were pursuing a defense, and possibly a counterclaim, based on the plaintiff’s breach of fiduciary duty and violation of banking laws (in the way the plaintiff involved himself in a relationship with his most important customer, an overseas distributor of television sets and other electronic equipment).  We believed that the plaintiff had an illicit relationship with his customer, which went beyond the bounds of legality, in that he was essentially being bribed to look the other way with respect to such important matters as limitations on the aggregate amount of loans from the bank to the customer.