Preparing a Witness for Arbitration - Chapter 23 - AAA Handbook on Commercial Arbitration, Third Edition
Daniel I. Small is a trial Partner in the Boston and Miami offices of Holland & Knight, a former Federal Prosecutor, and a former Arbitrator. Small graduated cum laude from Harvard College and Harvard Law School, and was a Lecturer on Law at Harvard. He is a frequent CLE speaker and media commentator, and is the author of Preparing Witnesses (ABA, Fourth Edition, 2014), from which this chapter was adapted by permission.
PREPARING A WITNESS FOR ARBITRATION
Daniel I. Small
When a person is called as a witness in an arbitration, whether as a party or non-party, it is usually a new and disturbing experience. Few people understand just how completely new and different it is.
The question-and-answer format, whether used in litigation or arbitration, does not produce what we know as “conversation,” so the witness should not expect to have a conversational dialogue with the questioner.
In fact, communicating effectively in a question-and-answer format is an extraordinarily unnatural and difficult process, one that requires considerable preparation. A witness must learn a method of communicating that differs considerably from the one we use in our daily lives, one that requires discipline in both listening and speaking.
Yet the relative informality of arbitration can lead to a dangerous relaxation in preparation. The notion that a witness can “just go in and tell my story” is as much an invitation to disaster in an arbitration as it is in the more formal world of litigation. Fortunately, it is possible for anyone to learn how to be an effective witness. However, it takes time, effort, and discipline on the part of both lawyer and witness.
II. Testimony vs. Conversation
Witnesses who testify in arbitration take an oath to “tell the truth, the whole truth, and nothing but the truth.” Most of us learned this oath by rote in childhood. Like many things learned by rote, the words may be known but not understood. Before a witness testifies under oath, he or she needs to understand all three parts of the statement that makes up the oath.