Managing Cross-Examination: The Arbitrator’s Perspective - Chapter 24 - AAA Handbook on Commercial Arbitration, Third Edition
William L. D. Barrett
William L. D. Barrett is Of Counsel to Fulton Rowe & Hart LLP in New York City. He is a former member of the Board of Directors and the Executive Committee of the AAA, former Chair of the Greater New York Advisory Council for Large Complex Cases and a member of the AAA’s Large, Complex Case Panel and other panels. He is a Fellow of the College of Commercial Arbitrators.
MANAGING CROSS-EXAMINATION: THE ARBITRATOR’S PERSPECTIVE
William L.D. Barrett
Arbitrators know that they cannot accept at face value the assertions of witnesses on direct examination without cross-examination. Witnesses do not often deliberately lie in commercial arbitration, but the tendency to shade the truth, to have selective or faulty recollection, or to omit important facts, happens to some extent in every case. Cross-examination is the tool that exposes these weaknesses. Generally, cross-examination of a witness will reveal that some assertions are believable, some less so and perhaps one or two, not at all. Arbitrators recognize that competently executed cross-examination eases their ultimate job of resolving contradictory claims.
II.The Purpose of Cross-Examination
Cross-examination in arbitration has a variety of purposes. One is to use the witness to expose information that will be helpful to the examiner’s case. Another is to discredit the witness’s direct testimony and thus to diminish the adversary’s case. A third objective is to attack the credibility of the witness and, by extension, the entire case of the adversary. Yet, another objective is to show that the witness has made a mistake or was actually unable to observe the event testified about. Cross-examination is controlled by the examiner who sets out to achieve one or more of these objectives.