Taking Charge: Proven Tactics for Effective Witness Control - Chapter 2 - Take the Witness: Cross-Examination in International Arbitration - Second Edition
Ben H. Sheppard, Jr. was 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 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. He was the author of the report and recommendation to the House of Delegates of the American Bar Association in support of the 2004 Revision to the AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes. He chaired one of the two working groups that promulgated the CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration. He was a past chair of the Disputes Division of the ABA Section of International Law and for five years served as editor-in-chief of The International Arbitration News. He graduated with high honors from the University of Texas School of Law in 1968, and was law clerk to the Honorable Homer Thornberry, United States Court of Appeals for the Fifth Circuit from 1968 to 1969.
I. Preliminaries: A Disclosure, a Concession and a Declaration
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.
The declaration: notwithstanding the differences between an American trial and an international arbitration, cross-examination tactics employed by American trial lawyers such as those described below will serve you well in an international arbitration. Why? Because they will enable you to control the witness, thereby enhancing opportunities to advance your case and minimizing the risk that you will inadvertently elicit damaging testimony from an adverse witness. Physicians take an oath “to do no harm.” Lawyers should do no harm to their case by inadvertently eliciting damaging testimony from an adverse witness during cross-examination. The risk of damaging testimony is present in every cross-examination. Careful attention to the basics of witness control will reduce the risks.