Originally from Take the Witness: Cross-Examination in International Arbitration, 2d Ed.

Years ago, Irving Younger generously “translated” the Ten Commandments of Cross-Examination, supposedly laid down by Cicero on a piece of papyrus to guide any litigator preparing to grill the opponent’s witness on the stand. Although Younger’s Commandments continue to serve as a very useful guide to the basics of cross-examination in the American courtroom, they don’t address some of the unique challenges confronted by lawyers in international arbitration, especially in the context of cross-examining financial and technical experts whom they have never seen. Cicero notwithstanding, an update to the Ten Commandments is in order – one geared to deal with the task of cross-examining a financial or technical expert in an international arbitration proceeding.

We would not be so bold as to pronounce Commandments.  Instead, we merely offer Ten Guidelines developed over many years of experience in international arbitration, a field in which witness examination is evolving along with the developing practice of international arbitration itself.  Cross-examination of financial and technical experts is particularly important in international arbitration because many of the cases are disputes arising out of complex investments with large damage claims and unique issues of valuation.  The roles that financial and technical experts play in analyzing the investments, and assisting the tribunals in determining the ultimate amount of damages, are critical to the ultimate outcome of the arbitrations.

It goes without saying that good cross-examination is always organized upon themes or individual points of attack. For each point, the examiner should have ready both a list of suggested questions and expected answers or alternatives, along with documents that have been highlighted or annotated by the examiner to emphasize the point in the question.