Presenting Witness Testimony in U.S. Domestic Arbitration: Should Written Witness Statements Become the Norm? - Dispute Resolution Journal - Vol. 69, No. 4

Author(s): 

Raymond G. Bender

Page Count: 

20 pages

Media Description: 

1 PDF Download

Published: 

December, 2014

Jurisdictions: 

United States

Practice Areas: 

Experts

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Description: 

Originally from Dispute Resolution Journal

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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. 1

 

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.2

 

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.