Originally from Take the Witness: Cross Examination In International Arbitration

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Nothing can be more devastating than delivering to one’s adversary a major concession or point of proof because a cross-examination has gone wrong. In crafting her or his cross-examination, the international arbitral practitioner must first and foremost follow the “Silver Rule”–“Do no Harm.” As one keen observer of the process noted over a century ago: “More cross-examinations are suicidal than homicidal.  There are two reasons for this:  mistaken conception as to the function of cross-examination, and faulty technique.”    

What follows is a series of reflections intended to prompt the newcomer to the international arbitral process to step back before lunging forward into what is typically the heart of every merits hearing- challenging the adverse party’s testimonial evidence through cross-examination of its witnesses. It would be wrong to assume that these observations are of no relevance to seasoned litigators who have only recently ventured into the world of arbitration.