There are, obviously, a great many facets to the art of cross-examination, both of fact and expert witnesses.
This essay, however, addresses only a few of them:the tone, words and style of common law advocates in international arbitrations, the growing uniformity of practice in this area, and the significance of that growing uniformity for the future of international arbitration. One of the well-known difficulties and questions confronted by many common-law advocates in cross-examining witnesses in international arbitrations in a civil law setting, with witnesses or arbitrators or both from civil law jurisdictions, is how aggressive and confrontational a tone and words they should use. Many such advocates are accustomed to the approach so often seen in American judicial settings, with lawyers trying their best to destroy the credibility of witnesses, and using harsh words and tones to accomplish that goal.
Are these important matters? Isn’t the substance rather than the tone of greater significance?With the growing prevalence of written witness statements in the taking of evidence into the proceedings, cross-examination has become more important than ever.Since its purpose, quite obviously, is to weaken the other side’s case, skillful cross-examination may and
often does play a crucial role in that process.
Yes, the substance is of greater significance.And yet, as is clear to common-law advocates appearing in international arbitrations, many arbitrators, even many with common law backgrounds, may become irritated by what they perceive to be overly aggressive cross-examination. Can that make a difference in the ultimate disposition of the case?It is perhaps not likely, but is certainly possible.