Originally from Dispute Resolution Journal

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I. INTRODUCTION

In the second installment of their three-part series on evidence in
arbitration, the authors focus on the crucial role of witness testimony.
The credibility or lack thereof of a witness’s testimony can make or
break a party’s case. The authors then discuss questions of evidence
admissibility, relevance and materiality, custom and past practice, and
several other common evidentiary issues arising in arbitration
proceedings.

II. WITNESSES

A. Witness Credibility

Whenever a witness answers a question, the witness’ credibility is
put in issue. The arbitrator must determine whether the witness’
testimony is accurate, truthful, and complete. There are several factors
used in assessing the credibility of witnesses.

• Demeanor. The witness’ demeanor, including voice, gestures,
and expressions while testifying may be some indication of the
witness’s credibility. Arbitrators should be very careful about
relying upon demeanor as an indicator of credibility. Perspiration
and hesitation, for example, may simply be signs the witness is
nervous or uncomfortable at being called to testify.

• Character of Testimony. When the witness’ testimony is too
difficult to believe, the arbitrator will probably discredit the
testimony. To be believable, the testimony should be plausible—
although the implausible is sometimes true. For example,
testimony the witness was swimming in Lake Michigan in
January is probably too difficult to believe, although the Polar