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Part VII Witnesses and Perjury, 18 Cross-Examination of Fact Witness Statements in International Arbitration

Lawrence W Newman

From: Defining Issues in International Arbitration: Celebrating 100 Years of the Chartered Institute of Arbitrators

Edited By: Julio César Betancourt

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 06 June 2023

Jurisdiction — Witnesses — Arbitrators — Admissibility of evidence — International courts and tribunals, procedure

(p. 187) 18  Cross-Examination of Fact Witness Statements in International Arbitration

A.  Introduction

18.01  International arbitrations are, to a great extent, made up of paper—or, more accurately, words in electronic form that may or may not be reproduced on paper. Documents memorialize that which gives rise to the dispute being heard—the contract. Similarly, there is a variety of other documents that bear on issues in the case, including financial documents and correspondence. These can be, and are, dealt with by the parties and the arbitrators through the exchange and submission of further documents—memorials with reproductions are important supporting documents. In spite of the great importance of documents, there are hearings held—and not just for the purpose of hearing oral arguments from the parties’ representatives. Witnesses are heard in hearings, both fact witnesses and expert witnesses.

B.  Fact Witnesses

(a)  Witness statements

18.02  Time was when fact witnesses were presented through direct testimony in international arbitration, just as they are in court, particularly in courts within the Anglo-American tradition. But as time has passed, there has come into almost universal use the presentation of the direct testimony of witnesses in the form of their written statements—called ‘witness statements’.

18.03  It is widely understood and accepted that fact witness statements are—if not prepared by—supervised or vetted by counsel for the party presenting the witness. There is, therefore, considerable scepticism as to whether such statements are truly the same kind of testimony that the witness would give if he were testifying orally on direct examination before an arbitral tribunal. Accordingly, it can be accepted that any witness statement that represents the best effort of the party presenting the witness will limit its coverage to what the party’s counsel considers to be helpful and will avoid touching on subjects that are not helpful to the party’s case.

18.04  Certain witness statements can be more helpful than others to the party presenting them. Some can be fairly innocuous, perhaps referring to or commenting on documents in the (p. 188) record. Others may represent an effort by the party to make an executive speech about the importance of the case to the party and the merits of that case—presenting in effect a certain kind of advocacy to supplement that of counsel. Other witness statements fall into a different category. Not only may they touch on certain subject-matter areas, leaving out areas that are harmful to that party’s case, but they may also distort accounts of certain meetings or other events, or even lie about them.

18.05  Witness statements falling into the first category are not troublesome and do not require dealing with. Those in the second category, however, can, if left alone and taken seriously by the tribunal, have a deleterious effect on the case of the opposing party. Therefore, they must be dealt with.

(b)  Assessing harm

18.06  But how? An assessment must be made, often only a few days prior to the hearing, as to the ways in which a harmful statement by a fact witness may be responded to. One way is to rely on one’s own witnesses and the accounts they will give of the events in question. These witnesses for the opposing party might be regarded as likely to be more persuasive to the tribunal, thereby obviating the need to question the witness concerning his witness statement.

18.07  Under these circumstances, a decision not to question the witness may be justified, particularly if much of what he has said is in fact accurate or if the would-be cross-examiner knows that the witness could add even more troubling testimony when questioned. In such cases, there is little to be gained by addressing the witness statement through questions to the witness.

18.08  The reality is, however, that witness statements are often sufficiently troublesome and sufficiently inaccurate or incomplete, that they should be made subject to efforts to blunt their effectiveness.

18.09  What to do? First, the cross-examiner must assess not only the content of the witness statement, but also the background and attitude of the witness. The witness may not be wholeheartedly hostile even though he may have been called by one of the parties or even be an employee of that party. One should usually assume, at least at first, that the witness, when questioned on cross, will answer questions in a civil and non-obstructive manner. He will probably have been instructed to do so lest naked hostility to the cross-examiner undercut the credibility of the testimony contained in the witness statement.

18.10  Thus, a good approach to cross-examination is to start the questioning of the witness in a friendly, non-confrontational manner, asking questions that seek to clarify and supplement what is contained in the witness statement. One has to be careful, however, in putting such questions to the witness that they seek information that is helpful to the cross-examiner, rather than testimony that supports what is contained in the witness statement.

18.11  Herein lies the biggest potential danger in cross-examination: reinforcing the other side’s case. When one cross-examines a witness on a certain subject, one is highlighting that subject for the tribunal, whose members may have glossed over this portion of the witness statement in preparing for the hearing and may not have grasped its negative impact on the cross-examiner’s side. But when the arbitrators hear the cross-examiner raise questions about the subject, their interest will be piqued and they will be listening with more attention than they may have paid to it when they read the witness statement. There is a real danger (p. 189) that the witness, when confronted with certain kinds of questions by a cross-examiner, will repeat in other words what he said in the witness statement—and perhaps even reinforce and embellish the point made in the statement. This is obviously disastrous for the cross-examiner—just how disastrous depends on how important the point being discussed is. One thing is clear: it is better not to have questioned the witness at all than to bring out testimony that favours the witness.

18.12  Therefore, one must be careful in questioning a witness presented by the other side. The questions must not, in most instances, be so open-ended as to permit the witness to engage in verbal excursions on his own; such excursions are almost always in the witness’s favour and in support of his testimony.

(c)  Cross-examination

18.13  There have been negative comments made about cross-examinations, in particular about the use of closed or leading questions that are intended to control the witness by eliciting ‘yes’ or ‘no’ answers. To some civil lawyers’ ears, the asking of such questions shows hostility and is an undesirable legacy from the common law. But such questions need not be hostile in tone or content. Instead, the approach can be conversational rather than confrontational. Even with a friendly approach, the questions can call for answers that very often have to be ‘yes’ or ‘no’. A questioner in sufficient command of the facts and with a sensitivity to the witness’s personality and disposition may be able to lead a conversation in which the witness willingly agrees to a narrative that flows, through a series of questions eliciting yes or no answers, in a direction favouring the questioner.

18.14  Questioning using this approach—that of the friendly leading questioner—may not always result in a nice, easy flow. The witness may not like where the conversation is going and may try to distract or resist. If the goal is worth pursuing, the cross-examiner may have to take a tougher approach with the witness. It helps if the questioning is done in such a way as to bring the tribunal along in the quest for clarification. That is, the tribunal members should be interested in what the questioner is seeking to do and not offended by or impatient with a more insistent line of questioning.

18.15  Accordingly, the cross-examiner has to be sensitive to the cultural and other attitudes of the tribunal members, some of whom may regard the notion of cross-examination with hostility. Moreover, it is not uncommon in international arbitration for limited, often short, time periods to be allowed for cross-examination. Such time limits give an advantage to the obfuscating witness and give all the more reason for closed questioning to be put to the witness so as to avoid bloviating responses that consume time.

18.16  When getting tough with the witness, one has to have a goal in sight—one that is attainable. Sometimes a series of denials by the witness or answers that are palpably untrue may be all that is required—and all that is readily obtainable.

18.17  Nonetheless, the cross-examiner should prepare a plan for cross-examination that anticipates denials, obstruction, and obfuscation by the witness. Indeed, the witness may be expected to lie about certain points. Few things can be as effective in a hearing as the exposure of a witness as a liar in front of the arbitrators. Such exposure cannot only result in a finding by the tribunal that the testimony about which the witness has misspoken is regarded as untruthful but—particularly if this kind of problem of prevarication should (p. 190) occur more than once—the tribunal may disbelieve much of the other testimony presented by the witness.

18.18  This is, of course, the best of all possible worlds for the cross-examiner and devoutly to be wished. Exposing a witness as a liar is, however, not easy. Before a lie is exposed, its true dimensions must be established. That is, the witness’s untruthful statement must be pinned down. The statement set out in writing in the witness statement should first be validated by the witness orally in front of the arbitrators. Once the existence and scope of the lie is established, there can be the confrontation—with the truth. The most effective expression of the truth is a prior statement of the witness to the contrary of what is in his witness statement. Such statements are not always available, but frequently they are.

C.  Taking the Process Seriously

18.19  A sociological phenomenon of international arbitration is that, often, witnesses do not take the testimonial process as seriously as they should because they are too busy on other, seemingly more important, business activities. They therefore allow too little time to familiarize themselves with the record, which often contains many documents, several of which may have been authored by or copied to the witness. The executive witness may not have spent the time necessary to read over these documents or may even not have paid a great deal of attention to them at the time of their creation. Indeed, he may not have given a great deal of thought to the content of the witness statement. This phenomenon of the executive who is too important to take the time to prepare can be deadly to the side on whose behalf he testifies.

18.20  There is another species of untruthful witness. This comprises employees of large corporations, private or state-owned, or of government agencies—those who have no choice but to toe the party line and say what they know they have to say, at the risk of possible loss of job or worse if they do not. Being untruthful is, for them, a rational alternative to lying and suffering the adverse consequences of being caught, which may, on balance, be less important to them and their employer.

18.21  So, if a cross-examiner is lucky and works hard, he will be able to have an important effect on the arbitrators’ perception of the merits of the case. But, even if one has the ammunition and has nailed down an untruthful statement, there is still the question of how best to utilize contradicting evidence. This is a judgment call for the cross-examiner. Time may be short, the arbitrators’ attention may be fading, or the arbitrators may have shown themselves to be impatient with cross-examination. Under such circumstances, the cross-examiner has to go straight to the point and proceed in a more abbreviated way to confront the witness with the contradictory testimony.

18.22  When there is time available and the matter is important enough, one should not waste good cross-examination material by failing to extract the maximum value from it. Thus, an opportunity is wasted when a cross-examiner does no more than refer the witness to his existing statement and then engage in a confrontation. At worst, a cross-examiner might, without referring to the prior statements except in a general way, simply show the witness a document containing the inconsistent statement and ask if he was the author.

(p. 191) 18.23  It is more effective and not much more time-consuming to lay a foundation by having the witness validate the prior written statement before asking the witness whether he ever took a different position or described the matter in question in a materially different way—perhaps paraphrasing what is in the inconsistent statement. The witness may well reiterate his most recent statement and deny having said something different. The cross-examiner can then ask the witness if it were not true that he made a contradictory statement in the prior document. The contrast between the two statements should be made manifest. The inconsistent statement can then be read or shown to the witness, who is asked to admit its authenticity. Of course, it goes without saying that this exercise should focus only on inconsistencies that are material to issues in the case. Focusing the attention of the arbitrators and the witness on minor inconsistencies can be counterproductive.

18.24  There are experienced trial lawyers in the United States who maintain that the ability to cross-examine is a gift one is born with and that cross-examination is therefore a skill that cannot be learned. Although it is true that there are persons who have greater natural abilities than others in various activities in human life, cross-examination is a skill that can be learned. Sometimes, it must be learned in practice. One must learn, for example, how to listen carefully to the answers to the questions that one puts to a witness and one must learn how, on the appropriate occasion, to use those answers to deviate from one’s planned line of questioning to go into a different area that may be fruitful. One must learn that too rigid an outline of questions to be asked can prevent the cross-examiner from taking advantage of opportunities afforded by the witness’s answers. It is by going through the experience of ‘thinking on one’s feet’ and thoroughly focusing on the subject matter that one develops the skill.

D.  Conclusion

18.25  No cross-examiner, no matter how practised and skilled, can do without the thorough preparation by immersion in the record—and even outside the record—needed to prepare a flexible outline of cross-examination.

18.26  In days of yore, there was more guesswork involved in preparing to cross-examine witnesses in international arbitration, particularly if there was not—as was usually the case—pre-hearing questioning of witnesses in depositions. In today’s international arbitration world, however, witness statements give the cross-examiner a clear framework within which to work—and there are still poorly prepared witnesses who can be profitably cross-examined. There are thus rewards to be had in cross-examining a witness on his written statement—even if it is prepared by a lawyer.