Originally from:

AAA Handbook on Arbitration Practice - Second Edition

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CHAPTER 32

PRESENTING WITNESS TESTIMONY IN U.S.
DOMESTIC ARBITRATION: SHOULD WRITTEN
WITNESS STATEMENTS BECOME THE NORM?

Raymond G. Bender

I. Introduction

The direct testimony of fact witnesses in international arbitration is
routinely presented in written rather than oral form. Written statements are
intended to reflect the detailed testimony that a witness would offer if
questioned orally at an arbitration hearing. The statements are typically
signed by the witnesses, often under affidavit, and are exchanged with the
other parties prior to the hearing. Each witness providing written direct
testimony then will appear at the hearing for examination by the other
side’s counsel and the arbitrators.

This prevailing practice in international arbitration has not been
embraced widely by advocates in U.S. domestic arbitration. There may
be sound reasons for not wanting to use written witness statements in the
context of any given dispute. But many arbitration advocates trained in
U.S. court litigation appear to be unfamiliar with the use of written
testimony, or they are unwilling to relinquish the common practice of
presenting witness testimony live via the question-and-answer format.

This article focuses on written witness statements in arbitration and
highlights notable advantages that can be gained by their use. Among
other things, presenting the direct testimony of fact witnesses in writing
can streamline an arbitration hearing and afford significant efficiencies
and cost savings. Countervailing factors may, of course, weigh against
using written statements in some instances, but a new and searching look
by U.S. counsel and arbitrators could instill a greater appreciation for
written witness statements and a wider acceptance of their use in U.S.
domestic arbitration.

II. Written Witness Statements in International Arbitration

It is now common in international arbitration to exchange the written
direct testimony of fact witnesses with opposing counsel and arbitrators
in advance of the hearing. The use of witness statements is normally
conditioned on the witness’ appearance at hearing to be cross-examined
by opposing counsel and questioned by the arbitrators. To some extent,
this procedure reflects a convergence in international arbitration of
different common law and civil law practices concerning the presentation
of evidence generally.

In a common law system, such as in the United States, it is customary
for advocates to present their witnesses live for questioning on direct
examination, and then to offer those witnesses for cross-examination by
opposing counsel. Civil law systems, in contrast, place greater emphasis
on documentary evidence. Written witness statements might be used, and
oral testimony may be permitted, but the questioning of witnesses in civil
law jurisdictions ordinarily is pursued solely by the judge, although
lawyers may suggest specific questions for a judge to pose. Crossexamination
of witnesses by opposing counsel generally is not favored in
civil law proceedings.