Direct and Re-Direct Examination of the Witnesses - Chapter 15 - The Art of Advocacy in International Arbitration - 2nd Edition
Nigel Blackaby is a Partner in Freshfields Bruckhaus Deringer’s international arbitration group and is head of both the US and Latin America international arbitration groups. He has acted as counsel and arbitrator in over 80 ad hoc and institutional arbitrations, both commercial and investor-state under bilateral investment treaties, with a focus on Latin America.
Originally from The Art of Advocacy in International Arbitration - 2nd Edition
In a tome dedicated to the "art" of advocacy, no-one can doubt that the true advocacy skill lies in the art of cross examination. There is the work of the artist in all its colour and subtlety. Direct and redirect examination limit the work of this artist cross-examiner much as the frame of the painting. There is less art here but the overall impression of the work can be complemented or detracted by the way it is presented. So it is my task to speak of picture framing.
I. Direct Examination
Direct examination (also known as "examination-in-chief") is the process whereby a party questions the witness it has called to give evidence. In court practice it was traditionally the phase where the witness tells his or her story, guided gently by the lawyer. In modern arbitral practice, however, direct examination is positively frowned upon and sometimes even excluded. The usual practice of presentation of written statements1 signed by the witness (usually a first statement and possibly a rebuttal statement) is deemed to replace the presentation of a witness's oral recollection of the events allegedly relevant to the resolution of the dispute.2 This practice has several advantages. First and foremost, there is no risk of "trial by ambush" since the evidence of the witness is known long in advance of the hearing thereby allowing the opposing party time to prepare properly for cross-examination. Second, much time will be saved when the witness's evidence is "pre-recorded" in a written statement rather than orally presented. In an international context where most participants will be away from home in a neutral city, this can result in important costs savings.