Taking Charge - Prove Tactics for Effective Witness Control - Chapter 1 - Take the Wintess: Cross Examination in International Arbitration
BEN H. SHEPPARD, JR. (CO-EDITOR) is a Distinguished Lecturer and Director of the A.A. White Dispute Resolution Center at the University of Houston Law Center. From 1969 through 2005 he practiced at Vinson & Elkins L.L.P. where he was a Partner and co-chair of the firm’s international dispute resolution practice. His practice focused on litigation and arbitration, both as counsel and as arbitrator. He has served in international and domestic arbitrations as sole arbitrator, tribunal chair, party-appointed arbitrator and on tripartite tribunals selected from institutional rosters. He was chair of AAA/ICDR task force that promulgated the 2006 amendment to the ICDR International Arbitration Rules establishing a pre-arbitral emergency arbitrator procedure.
Originally from Take the Witness: Cross Examination In International Arbitration
The disclosure: the tactics described here reflect an American (United States) perspective. Every trial lawyer in the United States is schooled in several fundamental tactics of cross-examination. Whether formulated as “techniques”, “rules” or elevated to the status of “commandments” (most famously in Professor Irving Younger’s lectures on the “Ten Commandments of Cross-Examination”), these tactics have served generations of American trial lawyers for whom effective cross-examination is critical to courtroom success.
The concession: there are important differences between a trial in an American courtroom and proceedings in an international arbitration. In an American trial, the evidence of witnesses is presented orally during the trial on questions from the attorney sponsoring the evidence of the witness. Juries are allowed as a matter of right. Jurors typically are lay persons with no specialized expertise in the subject matter of the dispute and no prior knowledge of the case. American juries are familiar with cross-examination and expect lawyers to conduct effective, even vigorous cross-examinations of the witnesses sponsored by their adversary. Oral evidence predominates over documentary evidence. The attorneys for the parties put questions to the witnesses with little or no questions from the trial judge. By contrast, in an international arbitration the evidence of witnesses ordinarily is presented first in pre-filed, detailed witness statements that may constitute the direct evidence of the witness. Arbitrators are often chosen for their specialized expertise in the subject matter of the dispute, are furnished detailed material about the dispute in advance of the hearing and participate in the development of the evidence through their own questions to witnesses. Some international arbitrators may be unfamiliar or uncomfortable with the cross-examination of witnesses conducted by the attorneys.