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.