Cross Examination in International Arbitration 0199681236, 9780199681235

Citation preview

CROSS-EX AMINATION IN INTERNATIONAL ARBITR ATION

CROSS-EX AMINATION IN INTERNATIONAL ARBITR ATION Nine Basic Principles

K aj HobÉr Mannheimer Swartling, Stockholm Uppsala University, Uppsala

Howard S. Sussman Wrobel Schatz & Fox LLP, New York

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Kaj Hobér and Howard S. Sussman 2014 The moral rights of the authors have been asserted First Edition published in 2014 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2014939074 ISBN 978–0–19–968123–5 Printed and bound by Lightning Source UK Ltd Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

PR EFACE

Cross-examination by counsel in an international arbitration differs in highly significant ways from cross-examination by counsel in a domestic arbitration or trial. That is obviously true when counsel is a lawyer from a legal tradition in which counsel hardly if ever cross-examine at all—such as a lawyer from some of the civil law countries or from China or Russia. But, because of the many important differences between an international arbitration and an Anglo-American domestic arbitration or court trial, it is also true even when counsel comes from the Anglo-American legal tradition in which counsel routinely cross-examine witnesses. Relying on our extensive experience in arbitration, as arbitrator and counsel, and in cross-examination, as well as in teaching, we seek in this book to provide the reader with a basic understanding of how best to conduct a cross-examination in an international arbitration. We do that taking into account the highly significant differences between international arbitrations, on the one hand, and domestic arbitrations and court trials, on the other. Those differences derive not only from the multinational characteristics of international arbitration but also from the legal and procedural framework within which the cross-examiner in such an arbitration must work. This book is thus addressed to all lawyers who represent clients in international arbitrations, no matter what legal or cultural traditions they may come from, but perhaps especially to lawyers who are relatively new to that work. It is intended to acquaint the reader with the most significant of the differences between cross-examinations in international arbitrations and those in domestic arbitrations and trials, and then to assist the reader in appropriately taking those differences into account when preparing for and conducting cross-examinations in international arbitrations. We are very grateful to the publisher of Francis L. Wellman’s superb book, The Art of Cross-Examination (4th edition, 1936), for giving us permission to quote a few things from that book to help us illustrate some of the points we seek to make in this book. Knowing when and how to cross-examine is an essential part of properly representing clients in international arbitrations. It is not too much to say that cases have been won by good cross-examinations and lost by bad cross-examinations. That is just as true in international arbitrations as it is in any other dispute resolution procedure in which counsel are permitted to cross-examine witnesses. v

Preface All of us learn to cross-examine by cross-examining rather than by reading books. A book can nonetheless provide a foundation upon which to begin and guidance on how to improve. We hope this book will do that and that all lawyers who use this book, no matter what legal and cultural traditions they may come from and no matter how experienced or inexperienced they may be, will find it to be useful. Kaj Hobér Howard S. Sussman Stockholm and New York September 2014

vi

TABLE OF CONTENTS

PA RT I  BACKGROU ND 1. Introduction 2. The Legal Background of International Arbitration A. A Dispute Resolution Procedure Agreed upon by the Parties

2.01

B. The Law Surrounding International Arbitrations

2.04

C. The Arbitration Agreement Bars Court Proceedings

2.10

D. The Doctrine of Separability

2.17

E. The Principle of Compétence de la Compétence

2.22

F. Arbitral Awards Are Final and Binding on the Merits

2.25

G. International Enforceability

2.32

3. Proceedings in International Arbitration A. The Typical Stages of an International Arbitration

3.01

B. Deviations from the Usual Procedures of Civil Litigation

3.02 3.03 3.05 3.07

1. Restraints on pre-hearing discovery 2. Few, if any, rules of evidence 3. Inapplicability of iura novit curia

C. Written Submissions 1. The initial submissions a. The prayers for relief b. The legal grounds c. The facts and circumstances 2. New claims, amendments, set-offs, counterclaims 3. Post-hearing briefs

D. Evidence 1. Party control 2. Powers of the arbitrators 3. Admission of evidence a. Standards for admissibility b. Documentary evidence and production of documents

vii

3.09 3.14 3.15 3.17 3.18 3.19 3.22 3.24 3.25 3.28 3.35 3.41 3.47

Table of Contents c. Witness testimony in general d. The form of the testimony

3.53 3.65

4. Implications for Cross-examination in International Arbitration A. The Decision-maker

4.02

B. Multiculturalism

4.05

C. Evidence in General

4.06

D. Documentary Evidence

4.08

E. Limitations on Time and on the Possibility of Surprising a Witness 4.09 5. Fundamentals of Cross-examination in International Arbitration A. The Purpose of Cross-examination

5.01

B. What Is Cross-examination?

5.03

C. Deciding Whether to Cross-examine

5.06

D. The Risks of Cross-examination

5.08

E. Planning the Cross-examination

5.11

F. Keeping Control of the Witness

5.21

G. The Form of the Questions

5.24

H. What Do You ‘Know’?

5.40

I. Avoid Questions about Conclusions

5.45

J. The Significance of the Non-verbal

5.50

K. Sensing the Environment

5.64

L. Getting Your Question Answered

5.66

M. Self-control

5.67

N. Make No More than Three Main Points

5.70

O. Adapt to the Environment

5.73

PA RT II  THE NINE BASIC PR INCIPLES 6. Basic Principle No. 1: Be Fully Prepared A. A Lot of Hard Work

6.01

B. Prepare a Plan for Your Cross-examination

6.05

C. Determine the Ultimate Objective of Your Cross-examination

6.25

D. What Questions Should You Ask?

6.35

viii

Table of Contents E. How Should You Put the Questions?

6.57

F. Prepare Your Use of Documents and Exhibits

6.73

G. Prepare Follow-up and Alternative Questions

6.81

H. Mental and Other Training

6.94

7. Basic Principle No. 2: Be Brief A. Make No More than Three Main Points

7.01

B. The Rationale for Brevity

7.07

C. Cross-examining Experts

7.32

8. Basic Principle No. 3: Use Only Leading Questions A. What Is a ‘Leading Question’?

8.01

B. Open Questions

8.10

C. Formulating Questions

8.15

9. Basic Principle No. 4: Use Only Short, Simple, Unambiguous Questions A. Simplicity Is Essential to Effective Advocacy

9.01

B. Use Only Short Questions

9.04

C. Use Only Simple Questions

9.16

D. Use Only Unambiguous Questions

9.28

E. Another Real-life Example

9.45

10. Basic Principle No. 5: Listen to the Answer A. Evaluate the Answer Before Proceeding

10.01

B. An Illustrative Hypothetical Case

10.02

C. The Witness’s Psychological State

10.17

D. The Nature of the Answer—A Simple ‘Yes’

10.19

E. The Nature of the Answer—More than ‘Yes’

10.21

F. Failure to Answer—In General

10.22

G. Failure to Answer—the Honest Witness

10.25

H. Failure to Answer—the Witness with an Agenda

10.29

I. Another Illustrative Hypothetical Case

10.34

ix

Table of Contents 11. Basic Principle No. 6: Do Not Ask for Conclusions A. Stick to the Facts

11.01

B. The Consequences of Not Sticking to the Facts

11.06

C. Explicit Requests for Agreement

11.09

D. Indirect Requests for Agreement

11.18

E. Avoid ‘One Question Too Many’

11.20

F. When to Stop

11.49

12. Basic Principle No. 7: Do Not Let the Witness Repeat the Direct Testimony A. The Nature of the Risk

12.01

B. Avoiding Repetition of Direct Testimony

12.06

C. Dealing with a Repetition

12.09

D. Inconsistent Statements by the Witness

12.17

E. The Nature of the Inconsistency 1. What the inconsistency relates to 2. Evading or explaining the inconsistency

12.23 12.25 12.30

F. Use of Inconsistent Statements—In General

12.34

G. Use of Inconsistent Statements—the Resistant Witness

12.54

H. Other Intended Repetitions

12.63

13. Basic Principle No. 8: Do Not Let the Witness Explain A. Maintaining Control

13.01

B. ‘I can’t answer that yes or no’

13.04 13.06 13.14

1. The cooperative witness 2. The recalcitrant witness

C. ‘I don’t understand the question’

13.20

D. ‘Let me explain that’

13.25 13.27 13.35 13.38 13.39 13.43 13.50

1. The witness’s speech 2. Your response a. Using the content of the speech b. Using simple questions c. The witness’s anxiety level d. What to avoid

x

Table of Contents E. ‘Let me ask you a question’

13.53

14. Basic Principle No. 9: Exercise Self-control—Do Not Argue, Or Get Angry, with the Witness A. Controlling the Witness Requires Your Self-control at All Times

14.01

B. Arguing with the Witness

14.02 14.03 14.06

1. Loss of control 2. Loss of persuasiveness

C. Avoiding Argument

14.10

D. Getting Angry with the Witness

14.14

E. Avoiding Anger

14.17

F. Self-control

14.34

G. Your Need for Personal Integrity

14.39

PA RT III  CONCLUDING R EM A R KS 15. Learning from Experience Index

157

xi

Part I BACKGROUND

1 INTRODUCTION So as to make our discussion of cross-examination in the context of international 1.01 arbitrations as valuable as possible for those lawyers who are relatively new to the subject, this Part I sets out an extensive overview both of the fundamentals of the international arbitral process and of the fundamentals of cross-examination as employed by counsel within that process. Its five chapters are intended to provide context within which to understand the nine basic principles, and the techniques related to them, that are discussed in Part II of the book. Chapter 2, The Legal Background of International Arbitration, sets out the legal and 1.02 procedural environment within which international arbitrations are conducted. It explores the law surrounding them, the role of the arbitration agreement, and the nature and enforceability of arbitral awards. Chapter 3, Proceedings in International Arbitration, discusses the chronological 1.03 procedural stages of an international arbitration. It describes the comprehensive exchanges of information between the parties prior to the main hearing, the comprehensive grasp of the dispute that the arbitrators usually have when that main hearing begins, the customary use of written witness statements rather than oral direct testimony, the fact that almost anything can be received in evidence, and the fact that international arbitrations are very often conducted in English. Chapter 4, Implications for Cross-Examination in International Arbitration, 1.04 ­identifies a few of the many ways in which the characteristics of international arbitrations are likely to affect counsel’s preparation for and conduct of cross-examinations. It also explores preliminarily the significance of the multicultural character of such arbitrations. Chapter 5, Fundamentals of Cross-Examination in International Arbitration, 1.05 ­discusses the fundamentals of the cross-examination process, the special considerations which apply in international arbitrations, and the principal ways in which cross-examinations in international arbitrations are likely to differ from those in domestic arbitrations and court trials. The chapter provides background, in light of those differences, for the extended consideration in Part II of what we think you 3

Background should do and how best to do it, as well as of what we think you should not do and how best not to do it, when conducting a cross-examination in an international arbitration. The chapter also contains a preliminary discussion of language usage and psychological issues that are of profound importance in any cross-examination. 1.06 Part II of the book focuses on the nine basic principles referred to in the title, each of

which is dealt with in its own separate chapter. The nine basic principles are:

• Be fully prepared (Chapter 6) • Be brief (Chapter 7) • Use only leading questions (Chapter 8) • Use only short, simple, unambiguous questions (Chapter 9) • Listen to the answer (Chapter 10) • Do not ask for conclusions (Chapter 11) • Do not let the witness repeat the direct testimony (Chapter 12) • Do not let the witness explain (Chapter 13) • Exercise self-control—Do not argue, or get angry, with the witness (Chapter 14) 1.07 These nine basic principles are by no means all there is to cross-examination. Far

from it. We believe, however, that it is essential for you to understand them and to master them in order to conduct an effective cross-examination. We believe that they provide a sound starting point as you work to become the best cross-examiner in international arbitrations that you can be.

1.08 We discuss and explain the meaning and significance of each of the nine basic prin-

ciples in the chapter in Part II which is devoted to that principle, and we provide both real-life and hypothetical examples with a view to illustrating the points discussed. None of these examples is intended to be a ‘perfect’ cross-examination because there is no such thing. Instead, the examples are intended to provide insights and clues into what works, what doesn’t work, and why, so as to make it easier for you to apply these principles in your own practice. Whether you cross-examine a witness, and how you do it if you do, depends upon a multitude of factors that vary from witness to witness. These factors include, most prominently, the characteristics of the witness involved, the content of that witness’s direct testimony, and the nature of your client’s case. Each cross-examination is thus unique, with its own challenges, and the solutions to those challenges, that are to a greater or lesser extent different from those in any other cross-examination.

1.09 As you study the nine basic principles, it is important to keep in mind that

cross-examination is not a goal in and of itself. For you as counsel, the goal is always to win the case for your client. Cross-examination must always be viewed in that perspective. At the same time, however, an effective cross-examination can be a profoundly helpful tool—even a potent weapon—in winning the case for your client. 4

Introduction As with so many other aspects of life, there is no substitute for learning by doing 1.10 and so, as suggested in the Preface, you will not become the best cross-examiner you can be simply by reading books. We firmly believe, however, that your work will be more effective if it is more than a mere trial-and-error exercise. We think you will accomplish more if you have a fundamental background, both theoretical and practical, that you can use to guide your work. We hope that the nine basic principles will provide that background. Part III contains concluding remarks. It is a kind of closing argument which is 1.11 intended to emphasize what we consider to be the most important points in the book.

5

2 THE LEGA L BACKGROUND OF INTER NATIONA L AR BITR ATION

A. A Dispute Resolution Procedure Agreed upon by the Parties 2.01 B. The Law Surrounding International Arbitrations 2.04 C. The Arbitration Agreement Bars Court Proceedings 2.10

D. The Doctrine of Separability E. The Principle of Compétence de la Compétence F. Arbitral Awards Are Final and Binding on the Merits G. International Enforceability

2.17 2.22 2.25 2.32

A.  A Dispute Resolution Procedure Agreed upon by the Parties 2.01 Like all arbitration, international arbitration is a dispute resolution mechanism

built upon the consent of the parties. Their consent is manifested in an arbitration agreement, which is usually in the form of an arbitration clause contained in the contract between them. In their arbitration agreement, the parties agree to submit a dispute to arbitration. It is their agreement to do so which gives the arbitrators authority to resolve the dispute by hearing the case and issuing an award. The parties control a very large part of the arbitral process. Party autonomy is thus a crucial characteristic of that process, and is one of the crucial differences from litigation in any domestic trial court.

2.02 An international arbitration proceeds through a series of stages, some details of

which are given in Chapter 3. At the end of the process, the arbitrators issue an award by which they resolve the dispute that has been presented to them.

2.03 Usually the parties to an arbitration agreement specify that the award is to be

final and binding upon them, but they are free to agree that the award is to be non-binding, or that it may be reviewed by another tribunal or by some other body. In practice, however, it is unusual for the parties to agree to anything other than that

6

The Legal Background of International Arbitration the award is to be final and binding. Even though an award is final and binding, it may be subject to challenge, as we discuss in section B.

B.  The Law Surrounding International Arbitrations Arbitration is thus consensual in nature, which is perhaps its most distinctive 2.04 feature. But arbitral tribunals do not operate in a legal vacuum. With the exception of arbitrations between sovereign states, and arbitrations under the regime of the International Centre for Settlement of Investment Disputes (ICSID) and its Convention, the very existence of arbitration and of arbitral tribunals depends upon the national law of the country where the arbitration takes place. That fact raises the question whether it is possible to insulate an international arbitra- 2.05 tion from the law of the country where the arbitration takes place—that is, whether the law governing the arbitration (the lex arbitri) can be made independent of the law of that country. This question has been much discussed in the so-called ­delocalization debate. While much of this discussion may seem confusing, the ultimate objective seems to have been to make the location of the arbitration have as little significance as possible. It is no doubt rare in practice, however, for parties to state in their arbitration agreement that an award is to be ‘delocalized’ or ‘a-national’. International arbitrations in general are thus ultimately conducted under the law 2.06 of the country in which they take place, which is thus the lex arbitri. Despite this, the will of the parties, as expressed in their agreement to arbitrate, retains crucial importance. This is so not only because the will of the parties grants authority to the arbitrators to act but also because their will impacts the scope, complexity, and effect of the arbitration involved. Among other things, the arbitration agreement controls aspects of how evidence 2.07 is handled in the arbitration as well as the extent to which the parties may amend existing claims or present new claims in the course of it. Many jurisdictions take a flexible approach to this issue. Article 23, subsection (2), 2.08 of the UNCITRAL Model Law provides an example: (2) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it.

As this language indicates, the reality is that the arbitration agreement limits the 2.09 discretion of the arbitrators, so that the extent to which a claim may be amended or a new claim presented is governed to a very large extent by the terms of the arbitration agreement between the parties.

7

Background

C.  The Arbitration Agreement Bars Court Proceedings 2.10 One of the cornerstones of most arbitration legislation is that the existence of a

valid arbitration agreement constitutes a bar to court proceedings between the same parties relating to the dispute covered by the agreement. It nonetheless sometimes happens that one of the parties to that agreement chooses to commence court proceedings with respect to that dispute. If that happens, then under the law of most countries the other party must promptly object to the jurisdiction of the court unless that objecting party is willing to have the matter resolved in the courts. Failure to make prompt objection will generally constitute a waiver of the agreement to arbitrate.

2.11 Article 8 of the UNCITRAL Model Law illustrates this:

Article 8. Arbitration agreement and substantive claim before court (1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. (2) Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court. 2.12 There are, however, exceptions to the general principle, as the content of subpara-

graph (1) in the quote in paragraph 2.11 suggests.

2.13 A valid arbitration agreement will generally not be a bar to court proceedings if the

subject matter of the dispute is non-arbitrable under the relevant law.

2.14 An arbitration agreement will also not bar court proceedings if the party objecting

to such proceedings has itself already waived the arbitration agreement. That may happen, for example, if the objecting party itself commenced a court proceeding relating to the subject matter of the arbitration or failed to object in a previous court proceeding relating to that subject matter.

2.15 An arbitration agreement will not bar court proceedings if it is not valid under the

law applicable to it. That may happen, for instance, if the objecting party was not legally competent to enter into it, or if it has been terminated, whether by agreement of the parties, by the issuance of an award, or in some other way.

2.16 Decisions concerning the validity of the agreement, and whether or not it has been

terminated, can be made either by a court or by the arbitrators themselves (see ­section E).

8

The Legal Background of International Arbitration

D.  The Doctrine of Separability The doctrine of separability, which is of great importance in international arbi- 2.17 tration, means that an arbitration clause contained in an agreement is regarded and treated as a separate agreement to be distinguished from the main agreement. In other words, when parties enter into an agreement that contains an arbitration clause they are really entering into not one agreement but two agreements: the main agreement and the separate agreement to arbitrate. The significance of this doctrine is that a claim that the main agreement is invalid 2.18 does not automatically mean that the arbitration agreement is invalid. Without this doctrine, it would be easy for a party to evade the arbitration agreement simply by claiming that the main agreement is invalid. The doctrine of separability thus plays a crucial role in protecting the integrity of the arbitral process. The doctrine of separability is confirmed in Article 16 of the UNCITRAL Model 2.19 Law, which reads: (1)  The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

The arbitration agreement itself, or both that agreement and the main agreement, 2.20 can nonetheless be held invalid in some circumstances. That can happen, for instance, where a party to the agreement lacked legal capacity to enter into it, or where duress, coercion or some similar conduct was exerted to obtain the agreement. If oppressive conduct of that type is claimed to invalidate the arbitration agreement, however, it must be shown that the conduct was specifically directed towards obtaining that agreement. A related question is whether the fact that an agreement has been declared invalid by 2.21 a sovereign act or court decision in a country other than the one where the arbitration is pending can or should affect the applicability of the doctrine of separability. We believe that the answer to this question should be in the negative.

E.  The Principle of Compétence de la Compétence The doctrine of separability is closely linked to the principle of compétence de 2.22 la compétence. This principle means that the arbitrators are competent to rule

9

Background upon their own jurisdiction whenever the existence or validity of an arbitration agreement is challenged. The issue of whether or not an arbitration agreement is valid may thus be submitted to arbitration and determined by the arbitrators themselves. 2.23 Decisions by arbitrators as to their jurisdiction are not always final and binding,

however. Some legal systems permit the arbitrators to reconsider their decision at later stages of the arbitration proceeding. Several jurisdictions permit parties in commercial arbitrations to challenge jurisdictional decisions of the arbitrators in the courts, either immediately or in subsequent proceedings challenging an award or resisting its enforcement.

2.24 The doctrine of separability and the principle of compétence de la compétence

constitute two of the cornerstones of modern international arbitration. Taken together, they ensure the efficient and timely commencement of international arbitrations, they protect the integrity of the arbitral process and, perhaps most important of all, they serve the interests of the end users of the international arbitral process—the parties who have agreed to arbitrate their dispute.

F.  Arbitral Awards Are Final and Binding on the Merits 2.25 The arbitral award rendered by the arbitrators is usually final and binding on the

merits. Absent some other agreement of the parties, the award is intended to be the end product of the arbitral process and the resolution by the arbitrators of the dispute on the merits. The character of the award as ‘final and binding’ means that, unless the parties have otherwise agreed (which they rarely if ever do), the award cannot be appealed on the merits. This means that the merits of the dispute cannot be re-examined by a court or by any other body.

2.26 To say that an award is ‘final and binding’, however, does not mean that it is immune

from challenge by a party which is dissatisfied with it. Even though review on the merits of the dispute is not available, challenges of a procedural nature may be made—for example, challenges based on alleged violations of due process.

2.27 Parties may also want the arbitrators to interpret their award—that is, to clarify the

meaning of the award. Unless the parties have authorized the arbitrators to exercise this power of interpretation, however, they typically do not have it. If the parties choose to authorize the arbitrators to exercise this power, they will do so either in the original arbitration agreement or in a later agreement specifically empowering the arbitrators to interpret their award. Arbitrators may sometimes have the power of interpretation by virtue of the applicable arbitration rules.

2.28 It is also possible for the parties to ask the arbitrators to correct their award, for

instance by recomputation of an amount in order to correct an error. This power of 10

The Legal Background of International Arbitration correction is generally available to arbitrators in international arbitration, at least so long as the award is not yet being enforced. Beyond these kinds of issues which are addressed to the arbitrators themselves, there 2.29 remains the possibility of having an award set aside—declared null and void—by a body other than the arbitrators themselves. Such nullification of an award can be sought only on very narrowly defined procedural grounds. Usually challenges that seek nullification are made to a court, either in the country where the arbitration was held or in a country where the award is sought to be enforced. Article 34 of the UNCITRAL Model Law illustrates the approach to nullification 2.30 challenges with respect to international commercial arbitration: Application for setting aside as exclusive recourse against arbitral award (1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article. (2) An arbitral award may be set aside by the court specified in article 6 only if: (a) the party making the application furnishes proof that: (i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this State; or (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the ­parties cannot derogate, or, failing such agreement, was not in accordance with this Law; or (b) the court finds that: (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or (ii) the award is in conflict with the public policy of this State. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under article 33, from the date on which that request had been disposed of by the arbitral tribunal. (4) The court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside.

11

Background 2.31 It is important to note that an application to set aside an award under Article 34

must be submitted within three months of the date on which the award was received by the party making the application. Otherwise the award will stand even if one of the grounds set out in Article 34 exists.

G.  International Enforceability 2.32 Awards rendered in international arbitrations are to a large extent enforceable

internationally. This is the result of two international conventions on the s­ ubject: the ICSID Convention, which relates to so-called ICSID awards, and the 1958 New York Convention, which is of broader applicability.

2.33 The 1958 New York Convention provides for the recognition and enforcement of

foreign arbitral awards provided that its requirements are met. That Convention has been ratified by approximately 150 countries. It thus effectively has worldwide application, even though some signatory countries have made reservations relating to reciprocity and to the commercial nature of the disputes underlying the awards sought to be enforced.

2.34 The 1958 New York Convention provides that recognition and enforcement of an

award may be refused under the terms of its Article V, which reads:

Article V 1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: (a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or (b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or (d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

12

The Legal Background of International Arbitration 2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b) The recognition or enforcement of the award would be contrary to the public policy of that country.

Because of the existence of the 1958 New York Convention and the ICSID 2.35 Convention, it is often said that the international enforceability of arbitral awards constitutes one of the great advantages of international arbitration over proceedings in national courts. That is because the judgments of courts in one nation are generally not enforceable in another nation unless there is a treaty or other arrangement in place, either bilaterally between the two nations involved or multilaterally. At least at present, there is no such multilateral treaty of general applicability and relevant bilateral treaties are not common.

13

3 PROCEEDINGS IN INTER NATIONA L AR BITR ATION

A. The Typical Stages of an International Arbitration B. Deviations from the Usual Procedures of Civil Litigation 1. Restraints on pre-hearing discovery 2. Few, if any, rules of evidence 3. Inapplicability of iura novit curia

C. Written Submissions 1. The initial submissions a. The prayers for relief b. The legal grounds c. The facts and circumstances

2. New claims, amendments, set-offs, counterclaims 3. Post-hearing briefs

3.01

D. Evidence

3.02 3.03 3.05 3.07 3.09 3.14 3.15 3.17 3.18

1. Party control 2. Powers of the arbitrators 3. Admission of evidence a. Standards for admissibility b. Documentary evidence and production of documents c. Witness testimony in general d. The form of the testimony

3.19 3.22 3.24 3.25 3.28 3.35 3.41 3.47 3.53 3.65

A.  The Typical Stages of an International Arbitration 3.01 Ultimate control of an international arbitration lies with the parties, but absent

their agreement to a different way of proceeding, a typical international arbitration will proceed through the following chronological stages: i. The claimant serves its request for arbitration in writing, either on the respondent or with an arbitration institution. The request will usually include (a) an express and unconditional request for arbitration, (b) a statement of the issue or issues, within the scope of the arbitration agreement, which the claimant wants the arbitrators to resolve, and (c) the claimant’s appointment of an arbitrator. ii. The respondent serves its reply to the request for arbitration, in which it also appoints an arbitrator. iii. The two arbitrators thus appointed, or an arbitration institution, select a third arbitrator, who is generally appointed as chairperson of the arbitral tribunal. 14

Proceedings in International Arbitration iv. Once the arbitral tribunal has been duly constituted, and a timetable agreed upon, the claimant submits its statement of claim relating to the issues stated in the request for arbitration. The statement of claim will include the facts and circumstances on which the claimant relies in support of its claim or claims. v. The respondent submits its statement of defence relating to the claim or claims, together with the facts and circumstances on which it relies in support of its case. The statement of defence will also normally contain any set-off claim or counterclaim which the respondent wishes to assert. vi. After these initial stages, there are usually further submissions by both parties. The claimant often submits a reply to the statement of defence and the respondent often submits a rejoinder to what the claimant has submitted. Various procedural and other preliminary issues may arise at this point—sometimes, though rarely, controlled by the terms of the arbitration agreement—and the arbitrators may be called upon to decide such issues. These issues may include questions relating to jurisdiction, production of documents, amendment of claims or presentation of new claims, and the determination of the applicable law. In deciding these issues, the arbitrators may conduct preliminary conferences with both parties, or may hear the arguments of the parties in separate hearings, or both. vii. The parties may also be requested to submit their respective statements of evidence, indicating the identity of the witnesses and the documentary evidence on which they intend to rely together with an explanation of what they intend to prove with each witness and document. Such statements of evidence are particularly common when no written witness statements are used and the direct testimony of the witnesses is therefore presented orally. viii. After all of these preliminary matters have been dealt with, there is a main hearing at which witnesses testify, documents and demonstrative exhibits are presented, and both factual and legal arguments are made. ix. Depending on the nature of the dispute, parties also sometimes agree to submit post-hearing briefs further elaborating their respective arguments. Some arbitrators are reluctant to accept such post-hearing briefs because they expect all of the evidence and all of the arguments to be presented at the main hearing. x. The arbitrators render an award in writing.

B.  Deviations from the Usual Procedures of Civil Litigation Three aspects of this typical way of proceeding merit particular mention here, as 3.02 they represent a deliberate departure from the usual procedures in many forms of civil litigation. 15

Background 1.  Restraints on pre-hearing discovery 3.03 First, there is typically no pre-hearing discovery of the Anglo-American sort in an

international arbitration, although the parties provide a large amount of information to each other and to the tribunal through the statement of claim or statement of defence (stages (iv) and (v)), the supplemental submissions (stage (vi)), and the statements of evidence (stage (vii)). Even if the arbitration agreement provides, or the parties later agree, that the Rules on the Taking of Evidence in International Commercial Arbitration of the International Bar Association (the ‘IBA Rules’) are to serve as a guideline in a particular arbitration, the discovery which the IBA Rules allow is nowhere near the extensive discovery common in the Anglo-American systems.

3.04 Parties and their counsel must thus conduct their own investigations and rely

largely on their own resourcefulness to develop their cases. Although arbitrators generally have the power to order a party to produce documents in its possession if the other party so requests, they do not have subpoena power to enforce such orders. Nonetheless, their power to give adverse effect to a party’s refusal to produce a document may operate to minimize refusals to produce documents that party has been ordered to produce. 2.  Few, if any, rules of evidence

3.05 Second, there are very few, if any, rules of evidence in an international arbitration,

although the IBA Rules, which contain some provisions relevant to this, sometimes serve as guidelines pursuant to the agreement of the parties. Thus it is most unusual for any piece of evidence to be rejected by the arbitrators, no matter what it is and even if the party opposing its admission claims that it is forged or stolen or otherwise inauthentic or tainted. A party will usually be permitted to have received in evidence almost anything at all so long as the material involved is important to its case. The main reason for this liberality is that arbitrators want to avoid the risk that the party which offered the evidence will later challenge the award by claiming that it had not been allowed to present its case.

3.06 That something—for instance, testimony or a document—is admitted in evidence,

however, does not mean that its contents will automatically be given credence. The arbitrators have both the right and the duty to evaluate freely all of the evidence that is presented by the parties, and to assign to it such weight as they deem appropriate. The arbitrators’ freedom in this regard acts as a control over abuse of the liberal approach that governs the admission of evidence. 3.  Inapplicability of iura novit curia

3.07 Third, the principle of iura novit curia (that is, that ‘the court knows the law’), which

is generally accepted in court proceedings in civil law countries, rarely if ever has 16

Proceedings in International Arbitration application in international arbitrations. The fact that this principle does not apply serves to avoid the risk that the arbitrators might surprise the parties by deciding a case on the basis of law that had not been argued by any party. As a result, most parties and their counsel will make an elaborate presentation of the law they contend bears on the dispute, including, with great specificity, what they claim are the relevant statutory bases and other legal principles as well as the case law. And they will do this even though arbitrators frequently, perhaps even usually, are lawyers, often of wide-ranging experience, and thus may well know a great deal about the law bearing on the dispute before them. We now turn to a more detailed discussion of some of the foregoing material.

3.08

C.  Written Submissions As set out in section A of this chapter, the parties will invariably submit written 3.09 submissions before the main hearing of an international arbitration. They may also submit post-hearing briefs. Depending upon the nature and scope of the dispute, some of the pre-hearing writ- 3.10 ten submissions may be extremely voluminous and contain comprehensive statements both of law and of fact. In other cases the written submissions may be far less extensive and may thus be characterized as merely preliminary to the main hearing. Generally speaking, however, the initial submissions—the statement of claim and 3.11 the statement of defence (stages (iv) and (v) outlined in section A)—are expected to set forth in reasonably complete detail both the factual and the legal arguments upon which the parties rely. Together with these written submissions, the parties are normally expected to submit supporting documentation and to explain the ­relevance of the supporting documentation they submit. As a rule, most of this documentation will be relied upon as evidence, but whether or not it is so relied upon, it becomes part of the record as soon as it has been submitted. These initial submissions, and the supplemental submissions (stages (vi) and (vii) 3.12 outlined in section A), are expected to define and narrow down the issues and thus to limit what must be explored and decided in the main hearing. The idea is that the parties themselves should reduce, to the extent they can, the matters the arbitrators will be asked to resolve. Needless to say this does not always happen. Parties may have any number of reasons—both good and bad—for not wanting to address directly arguments made by their adversaries. Particularly when the issues are not adequately defined by what the parties have submitted, preparatory conferences (stage (vi) in section A) may be employed by the arbitrators to accomplish in advance of the main hearing what they deem necessary to the proper disposition of the dispute. 17

Background 3.13 Following the main hearing, there may be post-hearing briefs (stage (ix) in section A).

1.  The initial submissions 3.14 Most arbitrators expect each party’s initial submission to be structured in the fol-

lowing three-tier fashion:

• Prayers for relief • Legal basis for the relief sought, often including a short explanation of the facts relevant to the legal principles or rules relied upon • Facts and circumstances a. The prayers for relief 3.15 Since the jurisdiction of the arbitrators is limited by the arbitration agreement, it is

essential that the prayers for relief do not request anything beyond what that agreement has given the arbitrators authority to award. It follows that a party should spend considerable time and careful thought in analysing what those prayers for relief should be, and should then state explicitly and unambiguously what that party wants the arbitrators to decide. The prayers for relief should be so specific that there is absolutely no doubt as to exactly what the party wants the award to provide.

3.16 Together with the terms of the arbitration agreement, the prayers for relief submit-

ted by the parties define the limits of the arbitrators’ authority. If the arbitrators exceed those limits their award may be set aside as beyond their jurisdiction, as ultra petita (that is, ‘beyond what was requested’), as it is properly called, or as ultra vires (that is, ‘beyond their power’). Parties clearly do not want to go through an arbitration only to obtain an award that is legally meaningless. b. The legal grounds

3.17 The parties are also expected to explain the legal bases for each of the prayers for

relief. They do this by referring both to the legal concepts involved—for example, breach of a specific clause in a contract, a specific defect in goods, a specific infringement of specifically identified intellectual property rights—and to the legal bases for that legal concept, including any relevant statutes or other legal authority. The legal grounds also may, and often do, contain a short reference to the facts and circumstances relevant to the prayer for relief. c. The facts and circumstances

3.18 Whether or not the legal grounds set out in the facts and circumstances, it is custom-

ary for these to be set out in considerable detail in the initial submissions. It is fair to say that an effective initial submission will enable the arbitrators to understand exactly what the party wants and exactly on what legal and factual bases the party claims to be entitled to what it wants. Of course, the initial submissions also provide 18

Proceedings in International Arbitration the adversary party with that information, which is an aid to the adversary party’s preparation of its case. 2.  New claims, amendments, set-offs, counterclaims The respondent may raise a claim for a set-off, or even a counterclaim, provided that 3.19 the claim sought to be raised is within the scope of the arbitration agreement. Such claims may be raised in the statement of defence and are typically raised there. They may, however, also be raised at a later stage, if the arbitrators allow that. Such claims should be allowed in the arbitration if the arbitrators do not consider it 3.20 inappropriate to adjudicate them. It is thus within the discretion of the arbitrators, taking into consideration the time when the set-off or counterclaim is submitted, and such other factors as they deem relevant, to decide whether the set-off or counterclaim should be allowed. But it is clearly wise to assert a set-off or counterclaim in the statement of defence rather than to wait until a later phase of the proceedings. Similarly, unless the arbitration agreement provides otherwise, both parties may 3.21 amend or supplement their initial claims, subject, as with set-off claims and counterclaims, to the discretion of the arbitrators as to whether such amendments or supplementations will be allowed. 3.  Post-hearing briefs The main hearing usually concludes the submission of evidence and the arguments 3.22 by the parties. Indeed, it is common for the last phase of the main hearing to be closing oral arguments by the parties putting forth their arguments as to what the evidence and law should lead the arbitrators to decide. It not infrequently happens, however, that there are post-hearing briefs. The parties 3.23 may agree to have these so as to have a further opportunity to present their legal and factual arguments, including an opportunity to comment on oral testimony at the main hearing. Or the arbitrators may request the parties to present further arguments on particular issues, especially to comment on a particular issue that arose at the main hearing or on a particular argument or piece of evidence that came in late in the course of the case. Post-hearing briefs can also serve to limit the duration of the main hearing, or may be permitted by the arbitrators when the time allowed for that hearing turns out to be insufficient for the parties to present their cases fully.

D. Evidence Evidence is presented at the main hearing and serves to provide the arbitrators with 3.24 a basis upon which to resolve both disputed issues of fact and disputed issues of expert opinion, and then to apply the relevant law so as to arrive at an award. The 19

Background factual material provided by the parties in their initial and supplemental submissions is generally part of what the arbitrators review as evidence in the course of the main hearing. 1.  Party control 3.25 How evidence is presented in the main hearing is largely a matter of what the par-

ties agree to, either in their arbitration agreement or, more commonly, by means of consensus with the arbitrators. There is thus considerable variety in how evidence is dealt with from one arbitration to another. The IBA Rules may play a role here, though usually as guidelines rather than by being strictly applied in their entirety. Those Rules do, however, provide useful mechanisms relating to the presentation of documents, the use of fact and expert witnesses, the role of inspections of places or things relevant to the dispute, and the conduct of evidentiary hearings.

3.26 The parties are free to agree on various evidentiary issues, such as on the number of

fact witnesses or expert witnesses, the admissibility of particular items of evidence such as an expert’s report, whether witnesses will give their direct testimony orally or by means of written witness statements, and many other practical matters that relate to how the main hearing is to be conducted. The nature of the arbitral tribunal, particularly the national origins of the arbitrators, may be relevant here (see Chapter 4, section B).

3.27 A party may also think it desirable to seek an advantage as to a particular witness

through the creation of an evidentiary rule it deems beneficial to that witness. But an attempt to do so will almost certainly prove counter-productive, since it will reveal things about that witness which the party would prefer to keep private and will in any event provoke a fight with the other party that may well prove unwinnable. 2.  Powers of the arbitrators

3.28 Because the parties largely control how evidence is dealt with, the arbitrators have

relatively little power to exclude evidence. If the parties have agreed that the IBA Rules are to apply, the arbitrators’ power in this regard may be somewhat increased (see this chapter, section D.3.a), but in general the arbitrators may only exclude evidence that is manifestly irrelevant to the dispute or that is not timely presented.

3.29 Although the arbitrators are generally considered to have power to order a party

to produce documents timely requested by the other party, they have no subpoena power and thus cannot compel production. They also have no power to order anyone other than a party to the arbitration to produce a document or any witness to appear at a hearing.

3.30 As a general matter, however, the parties usually produce the documents they are

ordered to produce, and the witnesses on whom they will rely usually attend the 20

Proceedings in International Arbitration main hearing voluntarily. Any failure to produce what a party has been ordered to produce will usually operate to the disadvantage of that party because of the arbitrators’ power to disadvantage a non-complying party. It is thus essential to know, very early on in the arbitral process, whether witnesses over whom a party does not have direct control—such as persons neither employed by a party nor retained by that party for purposes of the arbitration—will be compliant with the tribunal’s orders. Finding out whether your witnesses will comply with such orders, and taking appropriate steps to be sure that they will do so, is an important part of being fully prepared (see Chapter 6). When in doubt about the reliability of a particular witness, being fully prepared also means finding a way to deal with that witness’s possible non-compliance. In addition, in many legal systems the arbitrators have no power to administer oaths 3.31 or affirmations by which witnesses undertake to tell the truth. The criminal sanction of perjury is therefore generally not available if a witness fails to tell the truth in an international arbitration. Despite these limitations, two important factors conduce to the evaluation of the 3.32 truthfulness and credibility of evidence. First, the arbitrators are entitled to allocate evidentiary weight, in light of all the 3.33 circumstances, to a person’s (and especially to a party’s) refusal to testify, refusal to answer specific questions, or refusal to produce documents. It is not unusual for such refusals to lead the arbitrators to reach conclusions adverse to the party that presented that person as a witness, or to the party itself if the party is the refusing person. This power enables the arbitrators to disregard evidence they deem non-credible. Second, effective cross-examination may be a more powerful instrument for 3.34 extracting truth than any oath or affirmation. Cross-examination, if done well, can show the arbitrators that a witness is mistaken, confused, or simply wrong, and whether that witness is innocently not providing a completely truthful narrative or is, instead, intentionally distorting the facts or even affirmatively lying about them. This is further discussed in Part II. 3.  Admission of evidence Broadly speaking, there are four types of evidence: i. ii. iii. iv.

3.35

documents and things testimony of fact witnesses as to facts they know testimony of expert witnesses as to their opinions inspection of the subject matter of the dispute.

It is useful to say a little about each.

3.36

21

Background 3.37 Documents and things are sometimes self-evidently relevant to a dispute. More

often, however, in order for them to be useful as evidence they require the testimony of one or more witnesses with knowledge of the relevant facts who will testify as to what the party contends as to the relevance and significance of the document or thing.

3.38 Fact witnesses are people who know some fact or facts relevant to the dispute.

They may relate what they know either by means of oral direct testimony at the main hearing or, more commonly in international arbitrations, by means of written witness statements prepared in advance of the main hearing and submitted together with the written submissions of the parties. Such written witness statements are generally prepared by counsel for the party which calls the witness. That counsel, in preparing the statement, will ordinarily try to protect the witness from being undermined on cross-examination and will thus try to make the statement ­c onsistent with everything the witness has said prior to its preparation, as well as consistent with counsel’s theory of the case. See Chapter 6 as to theory of the case and Chapter 12 as to a witness’s prior inconsistent statements.

3.39 Expert witnesses are people who have expertise in some field relevant to the

­ ispute—electrical engineering, for example—and who will render an opinion on d some aspect of the dispute based on their study of facts they deem relevant to that opinion. The expert will almost always render a written report in advance of the main hearing. That report will set forth the expert’s opinion, usually combined with a statement of the facts upon which that opinion is based.

3.40 Inspection of the subject matter of the dispute occurs when the arbitrators deem it

necessary to see the thing to which the dispute relates—a power plant, for instance. a. Standards for admissibility

3.41 Because of the liberality with which arbitrators receive evidence, one cannot rely on

any technical rules relating to the admissibility of evidence. To the contrary, most arbitrators would be reluctant to accept any restriction on what evidence they may receive, and even where they have the power to exclude evidence they rarely do so in practice. Arbitrators will thus ordinarily receive so-called ‘hearsay’ evidence, as well as evidence that is claimed to be forged or stolen or otherwise inauthentic or tainted, relying on their right and duty freely to evaluate the evidence in the course of their arriving at their award.

3.42 As a practical matter, only evidence which is manifestly irrelevant to the dispute,

or which is untimely presented, will be excluded, and the latter often only if the delay in presenting the evidence can be attributed to bad faith—for instance to an attempt to delay the proceedings. If really important evidence is presented late in

22

Proceedings in International Arbitration good faith, but before the close of the main hearing, the more likely course is that the arbitrators will receive it and allow the other side adequate time to prepare to respond to it. Part of the reason that arbitrators tend to accept everything the parties offer is that 3.43 it is difficult to determine what is irrelevant until all the evidence has been received. Since the main hearing is the only hearing, liberality in receiving evidence is usually the sensible course. Another part of the reason, as noted in paragraph 3.05, is to forestall challenges based on the fact that evidence was excluded. A corollary to the fact that the main hearing is usually the only hearing is that the 3.44 parties must thoroughly prepare for, and properly present evidence at, the main hearing. There is no second chance even if important new evidence were to come to light after the award is rendered. The award can only be based on the evidence presented during the arbitration. The 3.45 private knowledge of the arbitrators cannot serve as the basis for their award. For that reason, and for other reasons that should be apparent, the parties cannot rely on the arbitrators to help them develop their cases and must themselves do what is necessary to obtain, and present at the main hearing of the arbitration, all the evidence they deem important. That evidence naturally includes whatever material counsel intends to use on cross-examination of witnesses during the main hearing. Obtaining all the evidence counsel needs is another important part of being fully prepared (see Chapter 6). These principles relating to standards for admissibility of evidence will be consider- 3.46 ably modified if the parties choose to make the IBA Rules applicable. In that event Article 9, Section 2 of the IBA Rules would govern and would provide a more limited standard for admissibility: The Arbitral Tribunal shall, at the request of a Party or on its own motion, exclude from evidence or production any document, statement, oral testimony or inspection for any of the following reasons: (a) lack of sufficient relevance or materiality; (b) legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable; (c) unreasonable burden to produce the requested evidence; (d) loss or destruction of the document that has been reasonably shown to have occurred; (e) grounds of commercial or technical confidentiality that the Arbitral Tribunal determines to be compelling; (f) grounds of special political or institutional sensitivity (including evidence that has been classified as secret by a government or a public international institution) that the Arbitral Tribunal determines to be compelling; or (g) considerations of fairness of equality of the Parties that the Arbitral Tribunal determines to be compelling.

23

Background b. Documentary evidence and production of documents 3.47 Documentary evidence is often of crucial importance in international arbitrations.

The parties will usually submit documentary evidence together with their various initial and supplemental submissions, and the parties and the arbitrators will usually agree on how this documentary evidence is to be presented.

3.48 In many arbitrations, the arbitrators, in consultation with the parties and to avoid

surprise and afford both parties an equal opportunity to present their cases, will establish a cut-off date after which no further documents are to be received. If the parties are requested to submit statements of evidence, they will be expected to identify in those statements all the documents they intend to rely on and to explain, as to each document, what they claim it proves.

3.49 Usually the parties submit all the pertinent documents without any problem arising. On

occasion, however, one party has documents that are unfavourable to its case and upon which the other party wants to rely. If the party with those documents withholds them, the tribunal may direct it to produce them. As the tribunal has no subpoena power, it cannot compel their production but it can, and usually will, draw from any failure to produce the documents involved inferences unfavourable to the refusing party.

3.50 Here, again, if the parties have agreed that the IBA Rules are to apply, Article 3,

Section 3, of those Rules governs requests for the production of documents:

A Request to produce documents shall contain: (a)  (i) a description of each requested document sufficient to identify it, or (ii) a description in sufficient details (including subject matters) of a narrow and specific requested category of documents that are reasonably believed to exist; in the case of documents maintained in electronic form, the requesting party may, or the Arbitral Tribunal may order that it shall be required to identify specific files, search terms, individuals or other means of searching for such documents in an efficient and economic manner; (b) a statement as to how the Documents requested are relevant to the case and material to its outcome; and (c)  (i) a statement that the Documents requested are not in the possession, custody or control of the requesting party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents; and (ii) a statement of the reasons why the requesting Party assumes that the documents requested are in the possession, custody or control of another Party. 3.51 But these provisions of the IBA Rules are not self-executing and the absence of

subpoena power means that the arbitrators cannot compel compliance with them, notwithstanding that the parties have agreed that they are to govern.

3.52 Both with the IBA Rules and without them, however, there are some countries in

which local law permits recourse to the courts to obtain a judicial order compelling production of documents. It is thus essential for counsel to do enough legal research 24

Proceedings in International Arbitration to be able to know with confidence what local law provides relating to the conduct of arbitrations in the jurisdiction involved. Doing this legal research is yet another aspect of being fully prepared (see Chapter 6). c. Witness testimony in general Any person can testify as a witness in an international arbitration, unless the agree- 3.53 ment of the parties limits that in some way. Some witnesses are representatives of a party, often employees of that party. Other witnesses simply know facts relevant to the dispute but are otherwise independent. Still other witnesses are experts hired by or on behalf of a party to give an opinion on some matter, usually a technical matter of some sort. As a general rule, no witness may be present in the hearing room prior to that wit- 3.54 ness’s testimony, but representatives of a party may participate in the hearings from the very beginning, even though they will testify. Often it is wise to have such witnesses testify before any others, so as to preclude any claim that their testimony was influenced by hearing what others said. Of course the nature of any witness, and the relationship that witness has to the 3.55 party that called that witness, bears on how the testimony of that witness will be received. Any party witness, and any expert hired by a party, will thus be heard by the arbitrators with extra care, and sometimes with real scepticism. In most cases the parties and the arbitrators will have agreed together on a timetable 3.56 for the main hearing, including when particular witnesses are expected to testify. The usual sequence is that all of the claimant’s witnesses testify before those of the respondent are heard, but that can be varied for many reasons, particularly in multi-party arbitrations. The parties are responsible for assuring that their witnesses appear in compliance 3.57 with the agreed timetable. If a witness fails to appear on time, the party calling that witness will usually have to bear any negative consequences of that failure. Only in rare situations would the arbitrators postpone the hearing, usually only if the witness is crucial for the party and, in addition, the party can show a valid excuse for the witness’s failure to appear—such as serious illness or an inability to travel. The more usual solution would be to have the testimony by videolink, Skype, or telephone, or to schedule a subsequent separate session for the testimony of that witness. It is generally accepted that witnesses may be interviewed and prepared to testify 3.58 before they testify orally at the main hearing. The IBA Rules contemplate this in Article 4, Section 3, which provides: It shall not be improper for a Party, its officers, employees, legal advisors or other representatives to interview its witnesses and to discuss their prospective testimony with them.

25

Background 3.59 Although preparing a witness to testify thus ‘shall not be improper’, the fact is that

interviews with and the other aspects of preparation of a party’s witnesses are sensitive matters. Careful regard must be had to what the witness may be asked about the preparation when cross-examined, and counsel must be careful not to steer witnesses to say anything they would not have said voluntarily. A useful discipline is to tell witnesses that they may repeat at the main hearing anything that counsel says while preparing them.

3.60 Even apart from the issues relating to cross-examination, experienced arbitrators

are usually good at detecting an ‘over-prepared’ witness, and when a witness is so perceived the effect is usually counter-productive. Since the ultimate purpose of the testimony is to persuade the arbitrators and not the client or the opposing party or anyone else, the best preparation will be one which helps the witness to tell truthfully what the witness knows about the case, not what the lawyer wishes the witness knew or hopes the witness could be induced to say.

3.61 Fact witnesses, whether they are party representatives or independent persons, tes-

tify to facts. Usually such a witness is more persuasive when testifying about what the witness knows of the witness’s own knowledge rather than about what the witness has been told by someone else, but there are no restrictions on what the witness can testify about so long as it is relevant to the dispute.

3.62 Fact witnesses are expected to provide facts, not to set out arguments about what

those facts mean. Arbitrators, as a rule, do not take kindly to witnesses who try to plead the case of the party that called them. Pleading the case is the job of counsel, to be done in the written submissions, in closing argument, and in post-hearing briefs if these are allowed.

3.63 Expert witnesses, by contrast, do not testify about the facts of the dispute but rather

about the significance, in the expert’s field of expertise, of facts the expert deems relevant to the dispute. There are many fields of expertise that can be involved in international arbitrations. A few of them are accounting, physics, and electrical engineering.

3.64 Foreign law is an interesting mix of the fact witness and the expert. Usually the

content of foreign law is treated as a matter of fact to be proven as such, and is taken from statutes, cases, and other standard sources of law. But how the legal principles thus found are to be applied to the dispute is often the crux of the matter, and for that it is common for parties to rely upon expert opinion testimony or on the writings of legal authorities or on some combination of both. d. The form of the testimony

3.65 A witness’s direct testimony may be given either orally or by means of a written wit-

ness statement. In international arbitrations, the use of written witness statements is 26

Proceedings in International Arbitration far more common than the use of oral direct testimony. As we shall see in Chapter 5, and throughout Part II, that fact has profound significance for cross-examination. The IBA Rules reflect this, whether or not they are applicable to any particular 3.66 arbitration, by providing in Article 4, Section 5 that a written witness statement shall contain: (a) the full name and address of the witness, a statement regarding his or her present and past relationship (if any) with any of the Parties, and a description of his or her background, qualifications, training and experience, if such a description may be relevant to the dispute or to the contents of the statement; (b) a full and detailed description of the facts, and the source of the witness’s information as to those facts, sufficient to serve as that witness’s evidence in the matter in dispute. Documents on which the witness relies that have not already been submitted shall be provided; (c) a statement as to the language in which the Witness Statement was originally prepared and the language in which the witness anticipates giving testimony at the Evidentiary Hearing; (d) an affirmation of the truth of the Witness Statement; and (e) the signature of the witness and its date and place.

A written witness statement, whether an affidavit under oath or simply a statement 3.67 affirmed and signed by the witness, will usually be prepared by counsel for the party which will rely upon that witness’s testimony. Written witness statements enable the arbitration to proceed more rapidly than it would if oral direct testimony were used. That is because when witnesses give their direct testimony by means of written witness statements, the only oral direct testimony (if there is any at all) will, as a rule, be only a few introductory questions, followed immediately by cross-examination, re-direct examination, and, if necessary, re-cross examination. In arbitrations where the direct testimony will be given orally, the parties will usu- 3.68 ally be asked to submit statements of evidence well in advance of the hearing. These will inform the adverse party, and also the arbitrators, of the expected content of the oral direct testimony. That information will facilitate the adverse party’s preparation of that party’s case, and of the cross-examination of the witness involved. That is particularly so because the statement of evidence serves as a limitation on the scope of the witness’s oral direct testimony. Even if the witness nonetheless goes beyond the scope of the statement of evidence, however, experienced arbitrators can usually find a good practical solution—for example, by allowing rebuttal documents to be submitted in a post-hearing brief, instead of adjourning the hearing to allow the other party to develop rebuttal evidence. Examination of witnesses is customarily done by counsel, though the arbitrators may 3.69 of course also ask questions if they wish. On direct examination, only ‘non-leading’ questions may be used. These are questions that do not suggest the answer but instead leave the witness free to tell what the witness knows. Often they are the 27

Background so-called ‘journalist’ questions—who, what, where, when, why, how. By contrast, questions on cross-examination are, in general, ‘leading’ questions that do suggest the answer desired, questions such as ‘You signed that letter, didn’t you?’. Questions on re-direct examination afford counsel for the party that called the witness an opportunity to supplement or clarify what the witness said on cross-examination, and questions on re-cross examination afford cross-examining counsel an opportunity to minimize the impact of the re-direct. Further rounds of re-direct and re-cross are possible but very rare.

28

4 IMPLICATIONS FOR CROSS-EX A MINATION IN INTER NATIONA L AR BITR ATION

A. The Decision-maker B. Multiculturalism C. Evidence in General

D. Documentary Evidence 4.08 E. Limitations on Time and on the Possibility of Surprising a Witness 4.09

4.02 4.05 4.06

The material in the two preceding chapters suggests a number of specific impli- 4.01 cations for the conduct of cross-examination in an international arbitration. This subject is discussed at greater length in Chapter 5, and in the nine chapters in Part II of this book that deal with the Nine Basic Principles, but the following preliminary points are worth making here.

A.  The Decision-maker The body that decides the dispute and issues the award is the arbitral tribunal. That 4.02 decision-maker is both the trier of the facts and the body that applies the law to facts as it finds them. Thus an international arbitration is not tried to a judge and jury, or to a single judge or group of judges, from the same nation as the lawyers, but instead is presented to an arbitral tribunal consisting of three arbitrators who may well come from three different legal and cultural traditions. Counsel’s task is to convince the arbitrators, not the client, the opposing party or its 4.03 counsel, or anyone else. In working to accomplish that task, counsel must take into account these characteristics of the arbitrators and of the process that are so different from what counsel encounters in purely domestic dispute resolution contexts. In addition, the overwhelming majority of arbitrators who serve in international 4.04 arbitrations are lawyers, usually lawyers of very considerable experience. They are, as a general matter, accustomed to unravelling complex factual and legal matters. 29

Background They are likely to have studied the initial and supplemental submissions and to have at the start of the main hearing a very considerable grasp of what the dispute is about. They are busy people and do not take kindly to anyone wasting their time. They may well also be proud people who do not take kindly to anyone insulting their intelligence or competence.

B. Multiculturalism 4.05 Each of the arbitrators may come from a legal and cultural tradition that is different

from that of the other arbitrators, and also quite possibly different from the legal and cultural tradition or traditions from which any of counsel come. The arbitrators may have no mother tongue in common, and counsel may have a mother tongue different not only from that of any of the arbitrators but also from that of one or more other counsel. Each of the arbitrators will have had different professional experience and outlook, probably also different legal education and training, and maybe different capability in the language of the arbitration proceeding. Counsel will need to take these multicultural factors into account in everything counsel does throughout the proceeding.

C.  Evidence in General 4.06 Unless the parties have agreed otherwise, no national rules of evidence will apply.

The arbitrators will determine what evidence to admit based on whatever rules are applicable to the arbitration involved, and are likely to be more liberal in admitting evidence than a national court would be. The corollary is that arbitrators have the right and the duty freely to evaluate evidence.

4.07 The absence of national rules of evidence also means that some conduct which

is customary, or even obligatory, under some national systems has no place in international arbitrations. As an example, the practice of ‘putting’ a contention to a witness need not be used in international arbitrations, and its use can often be counter-productive because one or more of the arbitrators may find it uncongenial or offensive or time-wasting. See the discussion in Chapter 11.

D.  Documentary Evidence 4.08 Most international arbitrations are ‘document-heavy’ both because the kinds of

disputes that are dealt with tend to involve many documents and because they often involve written witness statements rather than oral direct testimony. Since the arbitrators will have studied these documents, it is generally counter-productive during cross-examination simply to repeat the contents of documents. Simply repeating 30

Implications for Cross-examination in International Arbitration the contents of documents is also not usually the most effective way to use them in cross-examination, though documents when properly used can serve as a vital discipline in the effort to minimize the adverse impact of the direct testimony and to keep adverse witnesses honest. The ways in which documents can and should be used in cross-examination are explored in Part II.

E.  Limitations on Time and on the Possibility of Surprising a Witness Because the arbitrators will almost certainly have a highly developed familiarity 4.09 with the factual and legal issues involved in the case, there is considerable pressure on counsel to make their cross-examinations succinct and efficient. Lengthy examinations of the kind often encountered in Anglo-American courts are very rare in ­international arbitration. Attempts to conduct that kind of lengthy cross-examination will often be seriously counter-productive. In addition, because of the way documents are exchanged in advance of and in 4.10 preparation for the main hearing, the chance that counsel will be able to surprise ­witnesses by confronting them with unexpected documents or inconsistent statements is far less than it would be in an Anglo-American court. If there are statements that appear to be inconsistent with what the witness tells counsel in the course of the preparation of that witness’s written witness statement, such inconsistencies will have been resolved in the course of preparing that written witness statement. The same is true if the witness is being prepared to give oral direct testimony; counsel and the witness will resolve such inconsistencies in the course of the preparation of the witness. Inconsistent statements made by the witness after the preparation of the written witness statement or after the completion of the witness’s preparation to provide oral direct testimony, but before the main hearing, as the case may be, will almost certainly be among the documents exchanged between counsel, and given to the arbitrators, in advance of the main hearing. Thus the witness will probably know of the existence of such inconsistent statements, and may well have worked out with counsel how to deal with the inconsistency or inconsistencies involved.

31

5 FUNDA MENTA LS OF CROSS-EX A MINATION IN INTER NATIONA L AR BITR ATION

A. The Purpose of Cross-examination 5.01 B. What Is Cross-examination? 5.03 C. Deciding Whether to Cross-examine 5.06 D. The Risks of Cross-examination 5.08 E. Planning the Cross-examination 5.11 F. Keeping Control of the Witness 5.21 G. The Form of the Questions 5.24 H. What Do You ‘Know’? 5.40

I. Avoid Questions about Conclusions J. The Significance of the Non-verbal K. Sensing the Environment L. Getting Your Question Answered M. Self-control N. Make No More than Three Main Points O. Adapt to the Environment

5.45 5.50 5.64 5.66 5.67 5.70 5.73

A.  The Purpose of Cross-examination 5.01 The purpose of cross-examination is to reduce, to the extent reasonably possible, the

adverse impact of the witness’s direct testimony on your client’s case. Everything you do in cross-examining a witness, or in deciding not to cross-examine, must be directed towards that goal. In this chapter we seek to provide a general overview of cross-examination in international arbitration as part of the background against which you should understand the nine chapters in Part II.

5.02 Cross-examination of witnesses takes place in the course of the main hearing

referred to in the preceding chapters, and before the closing arguments which are made by counsel as the final phase of the main hearing, or in writing after it has been concluded, or both.

B.  What Is Cross-examination? 5.03 Cross-examination is a particular way of asking questions of a witness who has

testified. Often the questions asked on cross-examination, and the answers the 32

Fundamentals of Cross-examination in International Arbitration witness gives to them, are intended to destroy entirely the credibility of the witness. At other times those questions, and the answers given to them, are aimed only at showing that some part, but not all, of what the witness has said in the direct testimony is not to be believed. At a minimum, the questions and answers are intended to reduce the adverse impact of the witness’s direct testimony on your client’s case, to the extent this can be done without undue risk of further damage to that case. Almost invariably, the witness who is cross-examined will be a witness adverse to 5.04 the position of your client. The witness may even be actively hostile towards your client. As a result, the witness will often try to find ways during the cross-examination to hurt your client’s case even more than the direct testimony did. Cross-examination is aimed at persuading the arbitrators. It is not aimed at persuad- 5.05 ing the witness, or your client, or the adversary, or the adversary’s counsel, or anyone else. It makes no difference whether or not any of these others agrees with what you are trying to accomplish, so long as the points made during the cross-examination are clear to the arbitrators. But while the aim is to persuade the arbitrators, an effective cross-examination may sometimes influence an adverse party’s conduct and even on very rare occasion lead to a settlement on terms more favourable to your client than would otherwise have been available.

C.  Deciding Whether to Cross-examine Before undertaking a cross-examination, you must make a conscious and care- 5.06 fully considered decision whether to cross-examine at all. That is because cross-examination can easily make things worse than they were at the end of the direct testimony. You must balance that risk against the chance that the cross-examination will make things better. No cross-examination should be undertaken unless the damage done by the direct 5.07 testimony was serious and the likelihood of being able to make things better is significantly greater than the risk of making things worse. Even then, you must consider whether you are likely to be able to keep control of the witness so as to keep the witness from saying things you do not want to hear and do not want the arbitrators to hear.

D.  The Risks of Cross-examination Making things worse is particularly likely if you lose control of the witness. When 5.08 that happens the witness may be able to find an opening to repeat especially hurtful parts of the direct testimony or to say something even more hurtful than the direct testimony was. 33

Background 5.09 Things can be made worse even if you manage to keep control of the witness and

thus keep the witness from saying hurtful things. Failure to make progress against a witness despite an obvious effort to do so will often tend to reinforce the witness’s direct testimony.

5.10 These risks are avoided if there is no cross-examination. Thus the wiser course will

often be not to cross-examine. As a corollary, you should never permit your client to bully or shame you into cross-examining when your professional judgement is that cross-examination should not be undertaken. Many cases have been lost by unwise cross-examination.

E.  Planning the Cross-examination 5.11 The initial step in planning a cross-examination is to be fully prepared. Being

fully prepared means, to begin with, knowing thoroughly all the facts and all the law that bear on the dispute. It means having developed a full understanding of what your client’s case requires, and of what you will do to try to accomplish it. What it means to be fully prepared is explored more extensively in the next chapter.

5.12 A useful discipline is to prepare your closing argument as early as possible in the

preparation of your client’s case, and then to refine that argument as you learn more about the dispute both before and during the main hearing. Having your closing argument in hand, even if only in the form of a preliminary draft, will provide you with a framework within which to develop all of the cross-examinations you plan to conduct, since everything you do in the course of an arbitration should be governed by what you propose to argue in your closing argument. Your closing argument, in turn, will depend upon your theory of the case, that is the basis or bases upon which you claim that your client should win and that the other party or parties should lose.

5.13 Being fully prepared also means anticipating what adversary counsel is likely to do.

The written materials in an international arbitration will provide a good start in understanding the adversary’s case. They will set out the arguments that adversary counsel intends to make, as well as an outline of the evidence on which those arguments will be based. They will also identify each witness on whom the adversary will rely. In addition, in most cases they will provide a written witness statement for each such witness, and even without such a statement they will provide information about what that witness will testify to.

5.14 But it is essential to go beyond what you can learn from the adversary’s presenta-

tion. You must make a serious and thoroughgoing effort to find out everything you can about the dispute, about the witnesses the adverse party will call, about what 34

Fundamentals of Cross-examination in International Arbitration material you will need for cross-examining them, and about what adversary counsel is likely to do. When written witness statements are provided you will know, in advance of the main 5.15 hearing, both the identity of the witnesses and the precise content of their direct testimony. Even when the direct testimony will be given orally you will know who the witnesses will be, and roughly what their testimony will cover. Given a proper grasp of the dispute, you will then have a pretty clear idea of what each ­witness whose direct testimony will be given orally ought to say if being entirely truthful, as well as a pretty clear idea of what each such witness is likely to say in reality. In addition to this factual study, you will need to develop all the law that bears on 5.16 the dispute. That means not only the substantive law that you will ask the arbitrators to apply to the facts, but also whatever procedural law there may be in the jurisdiction where the arbitration is held that may bear on how it is to be conducted—for instance, whether you will be able to obtain assistance from the local courts in obtaining documents. You will need to identify and retain the experts you will use to provide expert testimony, including expert testimony as to the applicability of foreign law, so that they can assist you in your preparations for examining the other side’s expert witnesses. Once you have mastered the facts and the law bearing on the dispute, the next 5.17 step is to identify, as to each witness, what you want, and can reasonably expect, to achieve through the cross-examination of that witness. One part of that process is to evaluate the material within the dispute itself as potential ammunition for the cross-examination of the witness involved. Another part is to develop a full understanding of material outside of the dispute, but nonetheless having a bearing on it, that may be useful in cross-examining that witness. Yet another, and a vital, part is to learn as much as possible about that witness as a person. You must then figure out what questions it makes sense to put to the witness 5.18 involved, and whether those are questions that will advance your client’s case if they are answered as you believe they should be. As a general matter, witnesses can only be asked about things that they know of their own knowledge. As an example, witnesses may be asked if they have heard a particular rumour but it is generally not meaningful to ask them if the rumour is true—unless you have a good-faith basis to believe that a particular witness knows the answer to that question. In addition, you must take into account the witness’s position with respect to the 5.19 matter at hand and ensure that the witness is the right witness for the question you intend to ask. It will not do, as a general matter, to ask the cook in the executive dining room about corporate policy—though perhaps one could ask if the cook has overheard a conversation among the executives and, if so, what those persons said to each other. Equally, it will usually make no sense to ask the chief executive 35

Background officer about the food that was served during that meeting in the executive dining room—unless the chief executive officer is a food enthusiast and that fact is material to the case. 5.20 Having done this part of the preparation, you must then decide whether the avail-

able ammunition is likely to be sufficient to achieve what you want to achieve by the cross-examination. If you conclude that the ammunition is likely to be sufficient, you must then decide how best to use that ammunition in light of the extent of the damage to your client’s case that was done by the witness’s direct testimony. Those determinations require the exercise of very careful judgement.

F.  Keeping Control of the Witness 5.21 No matter what you do, the witness may try to take control of the examination away

from you and say something you do not want to hear and do not want the arbitrators to hear. You must try to maintain as much control over the witness as possible.

5.22 The challenges you confront in trying to maintain control over the witness may well

differ as a function of how the direct testimony was given. A written witness statement will have been prepared by adversary counsel who will have made an effort not to leave the witness exposed. Direct testimony given orally may provide greater scope for cross-examination, but is also likely to contain greater risks of being surprised by something the witness says.

5.23 Many things bear on the extent to which you can keep control of the witness. One

of these things is the form of the questions you ask and their sequence and tempo. Another is how you utilize the witness’s feelings and state of mind.

G.  The Form of the Questions 5.24 The form of the questions used is perhaps the single most important factor in trying

to keep control of the witness.

5.25 If you use ‘open’ questions—for instance, any of the so-called ‘journalist’ questions

(who, what, where, when, why, how)—the witness will be invited to say whatever the witness thinks can reasonably be said in response to the question. Often that will be something that a witness thinks will be helpful to the case of the party that called that witness. That something may be a repetition of something hurtful from the witness’s direct testimony, or it may be something that the witness has not said before. You do not want to give the witness that freedom, except in the rare situation where you have reason to think that such an ‘open’ question may elicit something beneficial to your client’s case. 36

Fundamentals of Cross-examination in International Arbitration Similar difficulties arise if you use long or discursive questions. Such questions 5.26 may enable the witness to pick a fraction of the question to respond to. They also enable the witness to make a speech that has minimal or even entirely non-existent relation to the question. In either instance the witness is given an opportunity to say any number of hurtful things that could otherwise have been avoided. As before, you do not want to give the witness that freedom. Such long or discursive questions can also muddy the record and confuse the arbitrators, not desirable things to do. So you will almost always want to use so-called ‘leading’ questions—short, simple, 5.27 unambiguous statements of fact that confine the witness rather than allowing the witness to roam. Each such ‘leading’ question will be short—perhaps limited to about 25 words. Each will also generally be limited to a single, simple fact. No question should contain anything beyond what is necessary to make that single, simple fact clear and understandable. That will mean that the witness cannot easily evade answering what you want answered. It will also mean that the witness cannot honestly wander beyond the scope of what was asked. As discussed in paragraph 3.61, these ‘leading’ questions should usually relate only 5.28 to what the witness being cross-examined actually knows of that witness’s own knowledge, including things that have been told to the witness or that the witness has overheard. It is generally unproductive to ask a witness a question about something the witness does not know, unless the witness’s lack of knowledge is relevant to the dispute. The term ‘leading’ questions is perhaps somewhat misleading, in that these ‘­ leading’ 5.29 questions are not really ‘questions’ at all in the sense in which we usually understand what a ‘question’ is. We usually understand a ‘question’ to be a request for new information. The ‘leading’ questions used on cross-examination do not seek new information. Cross-examination is not the place to seek new information, though such information sometimes emerges. Instead these ‘leading’ questions are statements of fact that you have carefully cho- 5.30 sen based upon what you know about the dispute. You will put these statements of fact to the witness, and the witness will usually be expected to respond either ‘yes’ or ‘no’. If the witness responds ‘yes’, the witness has agreed with your statement of fact. 5.31 A series of ‘yes’ answers can show that the witness agrees with your version of the facts. Those admissions will provide part of the basis for the argument you plan to make to the arbitrators in the closing argument phase of the proceeding. Such a series of ‘yes’ answers also tends to increase your own credibility with the arbitrators by suggesting that you are a reliable source of truth, which is of course desirable from your point of view. 37

Background 5.32 If the witness responds ‘no’, the witness has disagreed with your statement of fact.

A ‘no’ answer, or a series of ‘no’ answers, can serve to clarify the content of a factual dispute the arbitrators will have to decide.

5.33 You also have the choice as to the sequence in which you put these statements of

fact to the witness. The sequence chosen should be one intended to help you build a persuasive case while keeping the witness from being able to derail that case. The sequence is vital to the effect of the cross-examination on the arbitrators. Properly done, a sequence of these short, simple, unambiguous statements of fact can lead the arbitrators to reach a conclusion that you want them to reach, without your having to lecture them later on in closing argument about what you want them to conclude.

5.34 It is always better when the arbitrators figure things out for themselves and feel that

they have done so than when you have to lecture them in closing argument. The feeling that they have figured things out for themselves appeals to their belief that they are intelligent and insightful and helps win them over to your side of the case. That feeling also gives them a greater psychological investment in what they have figured out, which can likewise be to your benefit.

5.35 In thinking about the sequence in which you put the questions it is also critical that

you bear in mind the tempo at which you put them. The tempo, and any changes in it, should be whatever is most beneficial to the impact of the cross-examination. At times a slow tempo may be desirable, for emphasis, or because the concepts are better understood slowly. At times a rapid tempo may be desirable in an attempt to conceal from the witness where you are headed and thus prevent the witness from planning and carrying out an effective defence to your line of questions. A rapid tempo, however, also carries the risk that the arbitrators may be left at least as uninformed as the witness. A rapid tempo may also be challenging to an arbitrator whose command of the language of the proceeding is too limited to permit easy understanding of what is going on.

5.36 Short simple questions of this type are prevalent in an effective cross-examination,

but there can at times be reasons to use other sorts of questions. As one example, it is not unusual to be able to formulate a fair-minded question to which any answer the witness gives will be hurtful to the case of the party that called that witness. There may also be times when the use of the open ‘journalist’ questions may be effective.

5.37 It is also true that not all cross-examinations are as confrontational as the use of

these short simple questions could be taken to suggest. Sometimes an examiner can draw the witness along in an entirely amicable and non-confrontational way so that at the end of the cross-examination the witness exhibits full agreement with the examiner’s position on the facts (see the X-ray cross-examination in Chapter 8, section C). And cross-examination need not be cross or unpleasant in order to be 38

Fundamentals of Cross-examination in International Arbitration effective. Especially in international arbitrations, unpleasant cross-examination can be very counter-productive. Notwithstanding the care with which you prepare the cross-examination, it is 5.38 unwise to use in the cross-examination itself questions that have been written out in advance, even if writing out questions may prove very useful as part of your ­preparation for the cross-examination. Using questions that have been ­written out in advance (reading them to the witness one at a time instead of engaging in a ­responsive question and answer interaction with the witness) will tend to make the examination far less effective. It will also impede your ability to adjust to what the witness says, to change course from what you had planned when the cross-examination has developed differently from what you had expected and you need to respond effectively to the change. Whatever statements of fact you use, and however you use them, they must be based 5.39 only on what you have a good-faith basis to believe you know about the dispute. It is thus crucial for you to be very well aware of what you believe you ‘know’ and of the basis upon which you believe you ‘know’ it.

H.  What Do You ‘Know’? What do you actually ‘know’ about a case?

5.40

With the very rarest of exceptions, the only information a lawyer has about a case 5.41 is information someone else has conveyed to the lawyer. What you, as the lawyer, actually ‘know’ thus depends on two things. One is the reliability of the information that has been conveyed to you. The other is whether you have correctly ­understood that information. Therein lies both an obvious risk and a useful discipline.

5.42

The obvious risk is that if the information is not fully reliable, or if you have not cor- 5.43 rectly understood it, you will be mistaken about what you believe you ‘know’. If you then use that mistaken ‘knowledge’ as the basis for a question in cross-examination the consequences can be disastrous. The useful discipline is that, being aware of the obvious risk, you will be very care- 5.44 ful both in deciding what you believe you actually ‘know’ about the dispute and in evaluating the basis upon which you believe you ‘know’ it.

I.  Avoid Questions about Conclusions An effective cross-examination can accomplish many useful things. It may destroy 5.45 the credibility of a witness whose direct testimony was extremely damaging. It 39

Background may show that some especially hurtful things in a witness’s direct testimony are not credible even if the witness is otherwise to be believed. It may correct errors or distortions in the direct testimony, whether the witness intended them or whether they were entirely innocent, so that when properly understood the facts support the arguments you intend to make to the arbitrators in the closing argument. It may elicit some fact helpful to your client’s case that was omitted from the direct testimony. 5.46 But cross-examination itself is not the place for argument. That is true even though

cross-examination, if successful, may elicit things that will be useful in the closing argument. You should not try to argue the case during cross-examination but should instead save argument for the closing argument where it properly belongs.

5.47 You should thus not ask the witness to agree with inferences or conclusions that you

intend to argue are to be drawn from the facts the witness has admitted or refused to admit. You should limit your questions to matters of fact and avoid questions about what the facts may be argued to mean.

5.48 Questions seeking the witness’s agreement with inferences or conclusions can lead

you into an argument with the witness. Such arguments are never good. They are almost always more hurtful to your client’s case than to the case of the party that called the witness. Cross-examination should not try to use the witness as a sounding board for arguments about inferences or conclusions the arbitrators will later be asked to reach in the closing argument phase of the proceeding.

5.49 The notion that cross-examination is not the place for argument is sometimes

expressed by saying that you should not ask ‘one question too many’. Not asking ‘one question too many’ means that you should not ask a question that enables the witness to undermine what you have just accomplished by the questions that precede it. Often the ‘one question too many’ is a question that asks the witness to agree with a conclusion that you will later ask the arbitrators to reach. When that is the case, the question has the same kinds of disadvantages as a question that asks the witness to agree with an inference or a conclusion.

J.  The Significance of the Non-verbal 5.50 Words alone are not enough. Many psychological studies tell us that in face-to-face

interactions between people the words themselves are far less than half of what is communicated. Other things taken together with the words play a more important role than the words themselves in what is conveyed, and in what is understood, and in the response which is elicited. That bears on cross-examination because, whatever else it is, a cross-examination is a face-to-face interaction between two people, an examiner and a witness. 40

Fundamentals of Cross-examination in International Arbitration The non-verbal parts of what is conveyed, understood, and elicited in that 5.51 interaction derive from the feelings and emotions of the people involved. ­ Since each witness is different, the feelings and emotions are different in each cross-examination. You must be sensitive to that fact and be aware of what feelings and emotions are present at any given time, recognizing in addition that the feelings and emotions may change from time to time during a cross-examination, and sometimes very quickly. The feelings and emotions are, for the most part, exhibited through the ways in 5.52 which words are spoken and in the body language of the speaker. Thus you must be aware of how the witness is speaking and of what the witness’s body language conveys. But you must be equally aware of how you are speaking, and of what your body language conveys. And it is not only you and the witness. Other people involved in the dispute observe 5.53 the cross-examination. Those other people are not only the arbitrators but also the parties and their lawyers, and anyone else who happens to be in the hearing room at the time. Your awareness of their reactions to what is going on can affect what you decide to do in the cross-examination as it proceeds. To be successful, therefore, you must be aware of, and find ways to deal effectively 5.54 with, all of these non-verbal factors, in addition to dealing with the words themselves. You can use the witness’s emotional and psychological state, as well as your own affect in dealing with the witness, to reduce the witness’s capacity to dissemble. Using the tools those factors permit, you can sometimes lead a witness to be, or to become, more forthcoming with the truth than the witness otherwise would have been. One such non-verbal factor, and an especially important one, is anxiety—both the 5.55 witness’s anxiety and your own anxiety. Your own anxiety can derail an examination by leading you to make serious errors of judgement and serious mistakes. By contrast, the witness’s anxiety can be used to bring about testimony that is more truthful than the witness was inclined to give. You have immense power over the witness. You ask the questions. You can insist 5.56 on their being answered. You choose the subject matter of the questions and the sequence and tempo at which they are put. The witness may well be anxious even if you do nothing to evoke that anxiety. 5.57 A ­witness who has never testified before may be particularly anxious. There is thus likely to be an underlying anxiety in the witness that you can use. The 5.58 point is not to scare the witness for the sake of scaring the witness; it is to recognize that the witness’s anxiety can be used to discomfit a witness and thereby to elicit an admission that might otherwise have been unavailable. 41

Background 5.59 Here is an example, one of very many that could be given. Suppose a Mr Smith is

being cross-examined and is asked this question:

‘Is that what you want this tribunal to believe, Mr Smith?’ 5.60 Or even:

‘Is that really what you want this tribunal to believe, Mr Smith?’ 5.61 Any normal Mr Smith would like to answer such a question ‘yes’. But if Mr Smith

has been less than entirely truthful, or has even been drifting into an outright lie, he will often find it difficult or even impossible to give a ‘yes’ answer. Those feelings will be heightened by the use of his name, which will remind him that the tribunal is focused on him as a specific person, with a reputation and position to protect, and is not just engaged in an abstract intellectual enterprise.

5.62 The result of the question is thus likely to be that Mr Smith will back away from

what he had said that led the examiner to ask the anxiety-producing question. So Mr Smith may now say that he was ‘mistaken’, or ‘confused’, or ‘just realized that he was wrong’, or ‘did not understand the question’, or some other such thing intended to defend himself, followed by his giving a more truthful statement on the matter involved.

5.63 Even if Mr Smith is an accomplished liar, so that he can comfortably answer ‘yes’,

in doing so he is likely to affirm a proposition demonstrably contrary to what can be proved by other evidence. If he does that he may well destroy his credibility. You will thus not want to ask this or some other anxiety-producing question unless you are willing to risk destroying the witness’s credibility.

K.  Sensing the Environment 5.64 In order to decide when and how to use a question that can raise a witness’s anxi-

ety level, you will need to have a sense of the witness’s state of mind. To acquire that sense, you must pay close attention to what the witness says, how the witness says it, and what the witness’s body language suggests is happening within the witness. You must also remain aware of everything else that is happening in the hearing room, so that you can draw as much insight as possible from what is going on there.

5.65 You can learn many things that may be useful to the cross-examination from

observing how the arbitrators and others in the hearing room are reacting to the witness. It is obvious that you will not want to offend or alienate any of the arbitrators. Being aware of how the arbitrators and others are reacting to the cross-examination is part of avoiding such offence and alienation. But that awareness can also give you useful insights into how the cross-examination itself is 42

Fundamentals of Cross-examination in International Arbitration going, whether it is achieving what you want it to achieve or whether it is instead being counter-productive.

L.  Getting Your Question Answered Related to the use of anxiety-provoking questions is the principle that you should 5.66 insist that the witness answer the question that you asked. A witness may try to evade a painful admission by saying something that is not an answer to your question. It is then up to you to be sure that the question that you asked actually gets answered. There are many ways to do this. One is to repeat the question. Another is to ask a series of questions after the question that was evaded so as to elicit the answer that was sought by the evaded question. Whatever the path chosen, you must not lose control of your own feelings and emotions.

M. Self-control Throughout a cross-examination you must be able to exercise control over your 5.67 feelings and emotions so as not to argue with the witness or become angry. Real anger tends to distort judgement and is thus particularly dangerous and therefore to be carefully avoided. The cross-examination by Sir James Scarlett quoted in Chapter 9, section D illustrates what can happen to an angry cross-examiner. But any anger, whether real or feigned, tends to alienate others and is thus ­undesirable— except for the rare cross-examiner who is able to use feigned anger to advance the cross-examination. So when the witness evades a question, you must manage to get the question answered without arguing with the witness, or getting angry (unless you are that rare cross-examiner who can usefully feign anger), or letting the witness explain something the witness claims prevents an answer. And you must do this without letting the witness repeat the direct testimony. To do these things, you must be aware of your own feelings and emotions and of 5.68 how to control them so that they do not interfere with the conduct of the examination. Anxiety plays a vital role here, just as it does with the witness. You must learn to recognize your own anxiety, to understand what causes it and to learn how to deal with it so that it does not interfere with your effectiveness. Anxiety is not the only relevant feeling, of course, but it is perhaps the most impor- 5.69 tant because it occurs so frequently in cross-examination. It can cause you to lose focus, to become bewildered, to become too wordy. It can also produce feelings of anger, and those feelings are particularly dangerous for you as a cross-examiner. These principles apply not only to the cross-examination, of course, but also to the whole arbitration proceeding. The matter of self-control during cross-examination is the subject of Chapter 14. 43

Background

N.  Make No More than Three Main Points 5.70 You will want the arbitrators to remember, as to each witness, the main points

you made in the cross-examination of that witness. If you make at most three main points with any given witness, or even better only one main point, all of the arbitrators are likely to remember the point or points made. You can then feel fairly confident in relying on those points when discussing that witness in closing argument. If a cross-examination makes many main points with a given witness, different arbitrators may well remember different ones and the discussion of that witness in closing argument is likely to lose focus. Making at most three main points is generally recognized as ‘the rule of three’, and is frequently referred to in both oral and written presentations where the aim is to make a lasting impact.

5.71 To say that you should make at most three main points, however, does not mean

that you should ask only three questions. Instead, you will use many, probably very many, short, simple, unambiguous statements of fact, each generally limited to a single, simple fact, to provide the basis from which the main point or points can be seen or inferred.

5.72 It also helps if the cross-examination can be structured as a narrative, if this can

be done without letting the witness undermine its effectiveness. Doing so will make the examination more interesting and easier for the arbitrators to follow. But since the arbitrators will almost certainly know the chronology of the case, your narrative should be based on something other than simple chronology.

O.  Adapt to the Environment 5.73 You must also take into consideration what might be called the atmosphere or

environment in which the cross-examination is being conducted. That atmosphere includes the personalities and cultural assumptions of everyone involved—the arbitrators, counsel, parties, witnesses. It also includes the nature of your client’s case and how strong or weak it is, how the momentum of the proceeding affects the people involved, even the location of the hearing and the physical environment of the room in which the hearing is being held, as well as when in the course of the hearing day the cross-examination is taking place and how that timing may affect the attentiveness of the arbitrators.

5.74 But perhaps even more important if you are to adapt to an international arbitration

is to be continually aware of, and to take continually into account in your conduct,

44

Fundamentals of Cross-examination in International Arbitration the differences between the environment of that arbitration and the ­environment of the other dispute resolution environments with which you may be more ­familiar. The preceding chapters have described many of these differences. Part II will address in greater detail some of the ways in which they tend to impact what you will want to do during cross-examination.

45

Part II THE NINE BASIC PR INCIPLES

6 BASIC PR INCIPLE NO. 1: BE FULLY PR EPAR ED

A. A Lot of Hard Work B. Prepare a Plan for Your Cross-examination C. Determine the Ultimate Objective of Your Cross-examination D. What Questions Should You Ask?

E. How Should You Put the Questions? F. Prepare Your Use of Documents and Exhibits G. Prepare Follow-up and Alternative Questions H. Mental and Other Training

6.01 6.05 6.25 6.35

6.57 6.73 6.81 6.94

A.  A Lot of Hard Work In Part I, we noted that the first step in preparing for cross-examination is to be fully 6.01 prepared. Being fully prepared means knowing in detail all of the facts involved in the dispute and mastering all of the law which is relevant to it, including not only the substantive law but also any relevant procedural law of the place where the arbitration is held. Being fully prepared means hard work. A lot of hard work. Without proper prepara- 6.02 tion, it is not possible to conduct a meaningful cross-examination. Edward Bennett Williams, a legendary trial lawyer in the United States, was once 6.03 commended on a winning courtroom tactic during cross-examination. The admirer said that Williams had managed to ‘pull a rabbit out of a hat’. Williams is said to have replied: ‘To have any chance at all of pulling a rabbit out of a hat in a trial, you have to come to court armed with fifty rabbits, fifty hats and a lot of luck. If the luck is with you, you may get to use one rabbit and one hat.’1 True or not, the quote indicates the degree of preparation required before you go to 6.04 a hearing and before you start a cross-examination. 1

  F. Lee Bailey, To Be a Trial Lawyer (1985) 79.

49

The Nine Basic Principles

B.  Prepare a Plan for Your Cross-examination 6.05 Being fully prepared for cross-examination also means making a plan for your

cross-examination of the witness in question. This plan must be prepared against the background of the theory on the basis of which you are running the case.

6.06 A theory of the case means a theory that takes into account all the relevant facts and

all the applicable law and leads to the result that, if the arbitrators accept the theory, your client wins and the other party or parties lose.

6.07 What that theory is in any given case will depend on a detailed analysis of the facts

and of the law relevant to the dispute. Having performed this analysis you will be in a position to determine what your ultimate objective is in the dispute and how best to achieve it.

6.08 A theory of the case could be, for example, that your client did not sign the contract;

that your client has incurred damages as a result of the adverse party’s conduct; that your client acted in good faith, and so on. A famous example from real life, albeit in a context far removed from international arbitrations, is defence lawyer Johnny Cochran’s successful gambit in the murder trial of O.J. Simpson: ‘If the glove don’t fit you must acquit.’ The glove referred to was a blood-soaked glove that was found at the murder scene but was too small for Simpson’s hand and thus showed his non-involvement—which was the defence’s theory of the case.2

6.09 Your theory of the case should be reflected in everything you do in the arbitration.

You should never do anything that is inconsistent with your theory of the case. Your theory should permeate every aspect of what you do in the case from start to finish— certainly in your preparations for and your conduct of cross-examination.

6.10 The best point in time in an arbitration to convince the decision-makers—that is,

the arbitrators—of your theory of the case, leading to your ultimate objective, will usually be in your closing argument. That is because they will then have received all of the evidence and heard all of the cross-examinations and so will be in a better position to appreciate and be convinced by your arguments than they were in earlier stages of the proceedings when the evidence, including the testimony, had not been subjected to as thorough an analysis.

6.11 The first step in preparing for cross-examination is therefore to start preparation of

your closing argument. You should do this as early as possible in your preparation of the case. Needless to say, you will have to adjust and refine your closing argument

2  If you Google the phrase ‘If the glove don’t fit’ you will find a lot of information about how Simpson’s defence lawyer used it during the trial.

50

Be Fully Prepared as you learn more about the case, both in your investigation before you file your request for arbitration and as the arbitration progresses. It is, however, critical and very helpful to define your objective early on, and ‘work backwards’ to determine what you need to do to achieve your objective. Generally speaking, your closing argument should do three things:

6.12

(i) explain your theory of the case; in most cases this would have been done earlier in your written submissions, but in the closing argument you will explain the theory again, subsequent to and against the background of the presentation of the evidence at the main hearing; (ii) persuade the arbitrators to accept your theory; and (iii) persuade the arbitrators to reject the theory of the adverse party or parties. Once you have worked out the theory of your case and started to prepare your closing 6.13 argument, only then is it time for you to start thinking about the cross-examinations as a means of achieving your objective as reflected in your theory of the case. As a general rule, you should only cross-examine a witness to the extent necessary 6.14 to secure ammunition that you need to support your theory of the case, including whether what the witness says is to be believed. A critical threshold question is thus if you can obtain all of that ammunition from other sources. If the answer to this question is yes, there is no need to cross-examine—and you shouldn’t. The first, indeed the primal, rule of cross-examination is thus very often: ‘Don’t.’ And that is even more true in an international arbitration, because of the structure of that process, than it is in the ordinary case conducted in the Anglo-American manner. In answering the threshold question mentioned above—whether or not to 6.15 cross-examine—there are several aspects to consider: (i) remember that the objective in cross-examination is not to extract new facts from the witness, or to convince the witness or the opposing party or parties of your theory of the case; instead, the purpose is to provide the arbitrators with information that will bear on the credibility of the witness and on the weight that the arbitrators should give to the witness’s testimony in light of all of the factors that may bear on evaluating that witness’s testimony; (ii) in the great majority of international arbitrations the witness in question will have submitted a written witness statement, often with exhibits, which will serve as the direct testimony of the witness and which will in most cases stand in lieu of direct oral examination; (iii) in international arbitrations the parties will have submitted their written evidence, and other supporting documentation together with their written submissions, usually well in advance of the oral hearing.

51

The Nine Basic Principles 6.16 It follows from the foregoing that in many arbitrations you will probably have

most, if not all, of the facts you need to support your theory of the case, without having to resort to cross-examination. This takes us back to the first rule of cross-examination: ‘Don’t.’

6.17 There is a further factor. Not only will the material you have at the start of the main

hearing in an international arbitration often be enough for you not to cross-examine, but in addition the arbitrators, unlike judges or juries in the Anglo-American tradition, will not necessarily expect you to cross-examine. There is thus even less of a downside to not cross-examining when you are in an international arbitration than you would anticipate in an Anglo-American trial or domestic arbitration.

6.18 The foregoing description largely assumes that witnesses will give their direct tes-

timony by means of written witness statements so that you will know exactly what the direct testimony is and can determine before the main hearing whether you will need to cross-examine. In the relatively rare arbitration where the direct testimony will be given orally, however, there is a risk that a witness may say something on that oral direct examination that you had not foreseen and that is so hurtful to your client’s case that you will want to attack it on cross-examination if you can. When the direct testimony is to be given orally, therefore, you will need to take that possibility into account in your preparation for cross-examination so that you will be ready to cross-examine such a witness even though you had not initially intended to.

6.19 Of course a witness may also say something unforeseen during cross-examination

even when the direct testimony is given by means of a written witness statement. That, too, is something you need to take into account when you prepare the cross-examination of that witness.

6.20 If you reach the conclusion that it is necessary to cross-examine the witness in ques-

tion, it is essential, as mentioned above, to prepare a plan for the cross-examination, and that preparation should include a plan as to how you will deal with the unexpected things the witness may say.

6.21 It will be apparent from the foregoing that an important part of your preparation for

the cross-examination of any witness will be to unearth as much as you possibly can of what that witness has said about the subject matter of the dispute prior to the time when you cross-examine that witness. That will be true regardless of whether the direct testimony of the witness is given orally or by means of a written witness statement. Some of this material will almost certainly appear in the written material provided by adversary counsel, but you must go further so as to be sure that you have everything you can possibly find, not just what adversary counsel has chosen to provide.

6.22 A prior statement of the witness may have been written, for instance in a letter or a

memorandum, or it may have been oral. If the statement was written, you will want to be sure that you can prove unambiguously that the witness in fact made it. If 52

Be Fully Prepared the statement was oral, you will similarly want to be sure that the evidence proves unambiguously that the witness made it. But, in addition, you will want to be sure that the evidence of the statement remains reliable throughout the arbitration. In order to achieve that reliability, you will probably need to obtain a written statement (preferably a sworn statement if you can get one) from the source of that evidence. We consider below how these prior statements may be used in the cross-examination 6.23 of a witness if they are inconsistent with the evidence that witness gives during the arbitration hearing (see Chapter 12, sections D–G). You will also need to recognize that you will almost certainly not be allowed as 6.24 much time for your cross-examination in an international arbitration as you would in a trial conducted in the Anglo-American manner. That reality, and (as appears from Part I) the reality that the facts in an international arbitration are presented differently than in an Anglo-American trial, will also impact on how you plan a cross-examination and how you conduct that examination.

C.  Determine the Ultimate Objective of Your Cross-examination The first step in preparing your plan for cross-examination of any particular wit- 6.25 ness is to determine exactly what you want to achieve by examining that witness— that is, the ultimate objective of your cross-examination of that witness. This in turn will depend upon your analysis of the case against the background of your theory of the case. The potential role and importance of cross-examining any witness must be evaluated in this perspective. Determining the ultimate objective is absolutely vital to achieving an efficient and convincing cross-examination. In determining the objective of your cross-examination, several important factors 6.26 must be taken into account. First, in most international arbitrations, it is usually possible to achieve only 6.27 quite limited results in each cross-examination. In other words, when determining the objective, you must not be too ambitious. Each witness that you cross-examine should be regarded as one piece of the jigsaw puzzle that you must complete for the arbitrators. Second, you must put the right questions to the right witness. It is not meaningful 6.28 to ask a junior engineer about sophisticated aspects of contract interpretation. It would be a waste of time and energy to do so—and it would trespass on the patience of the arbitrators. Third, you should not put more questions than necessary to achieve your objective. 6.29 The following real-life example is a good illustration. 53

The Nine Basic Principles 6.30 In a major international arbitration, one of the claims concerned alleged violations

of a trademark licence agreement. The agreement was governed by Chinese law. In support of its case the claimant submitted a lengthy expert report by an attorney from the United States who specialized in trademark law and in branding. The expert’s report devoted a lot of ink to the importance of trademarks and brand names in general. It said nothing about Chinese law.

6.31 Counsel for the respondent put the following four questions:3

Q: It is correct, is it not, that you are a practising attorney and trademark consultant? A: That is correct. Q: You would agree with me, would you not, that the ultimate benchmark for determining if there has been a breach of contract, is the law governing that contract? A: I agree. Q: The contract between claimant and respondent is governed by Chinese law, is it not? A: Yes it is. Q: You are not an expert in Chinese law, are you? A: No I am not.

Counsel for the respondent: No further questions. 6.32 By putting these four questions, the value of the expert’s testimony was seriously

undermined, perhaps even totally destroyed, with respect to the relevant trademark issues in the dispute. The cross-examiner showed the arbitrators that however much the expert knew about trademarks and branding in general, and however honest the expert might be, the expert knew nothing, or at any rate nothing useful, about the Chinese law governing the case before them.

6.33 Although it is obvious, it is also worth pointing out explicitly that this

cross-examination also illustrates the second of our nine basic principles: Be brief. We return to that basic principle in the next chapter.

6.34 Once you have determined the objective of your cross-examination, you should

start thinking about what questions to put and how to put them.

D.  What Questions Should You Ask? 6.35 One of the hallmarks of effective cross-examination is to put only leading questions.

This aspect of cross-examination has been referred to above and will be discussed in greater detail later; see Chapter 8. 3  Because this arbitration, like virtually all international arbitrations, was confidential, we are unable to provide further information about the case.

54

Be Fully Prepared Another essential aspect of cross-examination is to understand what questions to 6.36 ask. The basic rule here is that you should never ask a question to which you do not know the answer. That basic rule is sometimes expressed by saying that you should never ask a question unless you know the answer or don’t care what the answer is. An example of the latter alternative is when the witness will be hurt no matter what answer is given, or as is sometimes said ‘the witness must choose between Scylla and Charybdis’. Of course this basic rule, like most rules, has some exceptions. We will look at them below. There are two essential reasons for this basic rule. One is that an unexpected 6.37 answer may well destroy your plan for the cross-examination. The other is that cross-examination is not the place to find out further facts about the case. By the time you cross-examine, you should not need any additional information. 6.38 You must prepare your cross-examination in such a way that you can use facts you know so as to achieve your objective. You should be well enough prepared that you know before the hearing what you are going to say in your closing argument about the credibility of any witness—whether or not you cross-examine that witness— and about the weight, if any, that you want the arbitrators to give to that witness’s testimony. It will be more difficult to know that if the direct testimony is to be given orally, but you should nonetheless have a pretty clear idea about all of the witnesses and what you anticipate saying about their credibility. There are two exceptions to the basic rule.

6.39

First, sometimes you may ask a question to which you do not know the answer when 6.40 you do not care what the answer is, or when any answer the witness may give will be more damaging to the case of an adversary party than it will be to your client’s case. Consider the following hypothetical illustration. The witness is a person who 6.41 has sued two other persons for having assaulted him outside a bar. The witness has been arrested twice for drunk and disorderly conduct. The objective of the cross-examination is to show that the witness was so intoxicated on the night of the claimed assault that his identification of the two men is not worthy of belief. Q: You were drinking at X-Bar that night, were you not? A: I don’t know what you mean by ‘drinking’. Q: You don’t know what I meant by drinking, do you? A: No. Q: But you know what drinking means, don’t you? A: Yes. Q: And you knew what drinking meant on 2 August 2008 [the date of one of the previous arrests], didn’t you? A: Yes.

55

The Nine Basic Principles Q: You were drunk then, weren’t you? A: No. Q: You know what drunk means, don’t you? A: Yes. Q: You knew the meaning of drunk on 7 May 2009 [date of the other previous arrest], didn’t you? A: Yes. Q: You were drunk on that date too, weren’t you? A: I don’t recall. Q: But you do recall the X-Bar, don’t you? A: Yes. Q: You recall being there, isn’t that right? A: Yes. Q: You recall having a drink at X-Bar, don’t you? A: Yes. Q: In fact, you had more than one drink, didn’t you? A: Yes. Q: In other words, you were drinking at X-Bar, weren’t you? A: Yes. Q: When a person drinks, he sometimes gets drunk, doesn’t he? A: Yes. Q: And sometimes he gets so drunk that he cannot recall being drunk, isn’t that right? A: No. 6.42 The last question is an example of a question where any answer the witness

gives hurts the witness’s position, or to put it differently a question where you don’t care what answer the witness gives. If the witness answers ‘yes’, the examiner has the desired admission on which to base the argument that the witness’s memory of the night in question is not reliable. If the witness answers ‘no’, as this witness did, the witness has evidenced a clear willingness not to tell the truth. The examiner can then use both the obviously correct ‘yes’ answer, which the witness did not give, as well as the clearly untruthful incorrect answer which the witness in fact gave, to undermine, if not destroy, the witness when discussing the witness during closing argument, and thus achieve the intended objective.

6.43 The second exception is when you do not know the answer to the question at the start

of the cross-examination but the answer becomes, or appears to become, sufficiently clear during the cross-examination as a consequence of the witness’s answers to other questions, or as a result of how the witness answers questions, that you can risk asking the question. 56

Be Fully Prepared The following real-life example from an international arbitration illustrates this 6.44 point.4 The witness, whom we will call ‘Mr X’, is the former CEO of a subsidiary of 6.45 an international oil company. Approximately a year before that subsidiary commenced the arbitration, Mr X’s employment as its CEO was terminated by the parent company. While Mr X was still the CEO of the subsidiary, it had participated in a tender 6.46 or bidding procedure by which it had sought to obtain a petroleum exploration licence. The respondent in the arbitration alleged that the subsidiary had acted improperly during that procedure and that the tender or bid was invalid as a result. Although he had been the CEO of the subsidiary at the time of the tender or bid, Mr X submitted a written witness statement supporting the respondent’s allegation, thus taking a position adverse to the position of the subsidiary in the arbitration. In that witness statement, Mr X also raised a number of general complaints about 6.47 how the subsidiary and its parent were run, and many additional complaints about the handling of the tender or bidding procedure. Other documents in the file suggested that Mr X was unhappy about his employ- 6.48 ment having been terminated, and that he was seeking revenge. Counsel for the claimant in the arbitration conducted the following 6.49 cross-examination of Mr X, who had been called as a witness by the respondent in the arbitration: Q: Mr X, you have worked in the oil and gas business for a long time, haven’t you? A: Yes, I have been in the business for several decades. Q: You worked for company Y [the subsidiary of the international oil company] for about ten years, isn’t that right? A: Yes. Q: During all those years you were a trusted and appreciated member of the management team of the company, weren’t you? A: Yes, that is correct. Q: When your employment was terminated, that came as a surprise to you, didn’t it? A: Yes, it did. I was shocked. Q: In your view, it was a very unfair decision, isn’t that right? A: Absolutely. There was no reason at all to terminate my employment. Q: You felt quite bitter about it, didn’t you? A: You could put it that way, yes. 4  As with the previous example from an international arbitration, we cannot give further information about this case because of confidentiality constraints.

57

The Nine Basic Principles 6.50 This could have been the end of the cross-examination. The credibility of the witness

had probably been sufficiently undermined. But counsel for the claimant decided to continue and asked the following additional questions. Q: In your witness statement you told your version of what happened during the tender procedure, didn’t you? A: Yes, I described and explained what in fact happened. Q: You welcomed the opportunity to do so, didn’t you? A: Yes, I did. Q: In fact you contacted the respondent and volunteered to submit a witness statement, didn’t you? A: That is correct.

Counsel for the claimant: No further questions. 6.51 Counsel for claimant did not know the answer to the last question. But based on

his review and analysis of the file and of the witness statement, combined with the answers Mr X gave during his cross-examination, counsel for the claimant had a ‘hunch’ that Mr X had offered to help the respondent ‘bring down’ the claimant.

6.52 But even if the last answer had been ‘no’, that would have had little if any adverse

effect on what the cross-examination had accomplished. The bias of the witness would still have been shown by the answers to the earlier questions. In addition, there would have been at least some doubt as to whether the ‘no’ was truthful, and if the arbitrators were to conclude that it had not been truthful, that would have been even more destructive of the witness’s credibility.

6.53 In a sense, therefore, this example illustrates both of the exceptions to the

­general rule.

6.54 The examiner was pretty sure, based on what the examiner knew at the start of the

cross-examination and on what was learned from the answers during it, that the answer would be ‘yes’ (or its equivalent). The examiner thus decided to risk asking the question, and the ‘yes’ answer actually given provided a solid basis upon which to argue that the CEO’s version of the events was not to be believed.

6.55 But the examiner also realized that a ‘no’ answer would have had little if any adverse

effect on the examination as a whole and so, in that sense, did not really care what the answer was going to be.

6.56 The only downside was that the CEO was clearly being honest in giving the testi-

mony he did. But that did not operate to mitigate the CEO’s desire for revenge, as evidenced by the circumstances surrounding his firing, and that was true whether or not he had offered to testify for the respondent.

58

Be Fully Prepared

E.  How Should You Put the Questions? Well, how do you put the questions, then?

6.57

You will have figured out in your preparation for the cross-examination of any spe- 6.58 cific witness just what you want to achieve with that witness and where you want to end the cross-examination of that witness. It is thus usually a good idea to start by determining what you would like your last question to that witness to be. Your last question should be the final piece of the jigsaw puzzle with respect to that witness and is thus of course a very important question. You will therefore want that question to be an absolutely safe question, one to which you are absolutely sure you can extract from the witness the answer you want no matter what the witness does. To make sure you get it right, it is usually helpful to write down the last question. It will be more difficult to do this if the witness is to testify orally on direct examina- 6.59 tion than it would be if you were dealing with a written witness statement, but it is nonetheless worthwhile to try. At a minimum, you should know where you want that last question to leave the witness. The answer to the last question is also likely to be the last thing the arbitrators hear 6.60 from the witness, and thus the basis of their last impression of the witness. That last impression is not likely to be affected by what happens on any re-direct or re-cross examination. If you were to think that the re-direct examination had adversely affected that last impression, however, you could try to re-create it on your re-cross examination, and you should do your best to foresee the circumstances in which you might need to do that and how you would do it if you were to need to. Once you have determined your last question, you should determine your first ques- 6.61 tion. The first question is also of significance because it sets the stage for the rest of the cross-examination. It should also be safe—it need not perhaps be as absolutely safe as the last question, but it still should be safe. It must ensure that you get a good start. Here, again, things will be significantly different if the witness testifies orally on 6.62 direct examination than they would be if you were dealing with a written witness statement. With oral direct examination you will not know in advance exactly where the testimony will end, so you may find that a question prepared in advance has become unsuitable. Still, you should think through how you want to lead the witness to where you want the witness to end up, and you should create alternative ways of starting your cross-examination that will conduce to your achieving that goal. In determining the sequence of your questions, you must determine whether you want 6.63 to use a chronological sequence, a purely logical sequence, or some other sequence. In

59

The Nine Basic Principles most commercial disputes, the parties start out as friends or partners, sharing the same hope of profiting from the transactions in question. Problems and disputes develop later in the relationship and it is the desire to resolve these problems and disputes that give rise to the arbitration. 6.64 Experience tells us that it is usually a mistake to follow a strict chronological approach

when cross-examining in such disputes. You must keep in mind that in most international arbitrations the chronology of events will have been told and explained by the parties in their written submissions. It will therefore be a waste of time and energy for all, especially including the arbitrators, to go over the chronology again during cross-examination.

6.65 Instead, you should try to organize your cross-examination around themes and

organize your questions in a logical sequence with respect to each theme. Although you will know what these themes are, it is generally not a good idea to tell the witness what they are. You will, in general, not want to introduce a new theme by saying that you are about to ask questions about it. You will not normally say anything like this: ‘All right, we have finished talking about X. Now I want to ask you questions about Y.’

6.66 Doing something like that creates too much of a risk that the witness will be able

to manipulate the answers to your questions. Instead, simply stop asking questions about X and start asking questions about Y.

6.67 As with most rules, there are occasional exceptions to this one, such as when you

need to be sure that the arbitrators can follow what you are doing. That can make it important to tell the witness what you are doing so as to convey that information to the arbitrators. But in general the arbitrators will have an overview of the matter that is sufficient for them to understand what you are doing in your cross-examination without your having to tell them by telling the witness.

6.68 Depending on the nature of the witness, it can be a good idea to start with questions

with which the witness can readily agree. This may lead the witness to become more co-operative before you start asking questions designed to undermine the witness’s credibility.

6.69 On the other hand, sometimes the best approach may be an immediate frontal

attack on the witness. This is illustrated by the following real-life example from an international arbitration, in which we call the witness ‘Mr Z’.5

6.70 One of the issues in the dispute was whether the claimant, Company A, had

funded research work done by another company, Company B. Company B was 5  Again, as in the cases above from international arbitrations, confidentiality constraints prevent us from giving more information about the case.

60

Be Fully Prepared run by a Mr X. In his direct testimony, Mr Z had denied that Company A had funded Company B. The cross-examiner asked these questions:

6.71

Q: Mr. Z, did I hear you right? Did you just testify that Company A did not fund or provide any research funding for Company B? A: That is what I testified. I may be wrong on that point, but that is my belief. Q: Well, Mr Z, is it not a fact that the facility of Company B, which you visited a few months ago, was in fact leased by Company A and paid for by Company A? A: That may be. I don’t know that. Q: Is it not a fact that Mr X and his assistant were on the payroll of Company A during the entire period? A: That may well be.

In his answers to the last two questions Mr Z in essence admitted that he had been 6.72 wrong in his first answers and in his direct testimony and that, contrary to what he had said, Company A had in fact funded the research. This provided a basis for claiming in closing argument that Company A had in fact funded research at Company B.

F.  Prepare Your Use of Documents and Exhibits Another important aspect of preparing for your cross-examination is to plan exactly 6.73 how you will use documents and demonstrative exhibits—charts, maps, tables, and the like. You must plan your presentation and your use of documents and demonstrative exhibits so that things proceed smoothly and so that you avoid any legitimate interference from opposing counsel. You will make a very poor impression if you do not know what document or demonstrative exhibit to use or where to find it when you want to use it. In international arbitrations this kind of control over documents and demon- 6.74 strative exhibits is usually achieved by preparing so-called hearing bundles for cross-examination. As a rule, it is a good idea to prepare a separate bundle for each witness. Such bundles may contain only those documents which are already in the file and demonstrative exhibits based on such documents, that is, documents and demonstrative exhibits which have been submitted prior to the hearing. Your own bundle should be organized in such a way that the documents and demon- 6.75 strative exhibits are easy to find. One way to do this is to arrange them in the order in which you plan to use them in connection with your questions. Another way is to organize them in exhibit number sequence so that, for example, when you want to find Exhibit 255 you know that it follows Exhibit 254. 61

The Nine Basic Principles 6.76 The documents and demonstrative exhibits in your own bundle should also be

annotated to remind you of each point you plan to make in your cross-examination of the witness in question, but of course those annotations should not appear in the versions of the hearing bundles that are to be handed over to the witness, the arbitrators, and opposing counsel. The hearing bundles to be handed over to others should contain only the documents and demonstrative exhibits and not your notes, and they need not necessarily be in the same sequence as in your own bundle but could be arranged in some other way, for example in strict chronological order.

6.77 How you use documents and demonstrative exhibits is a very important subject.

Documents and demonstrative exhibits form part of the file as of the moment they are submitted to the arbitrators and to opposing counsel.

6.78 Information in documents submitted to the tribunal should be used as stepping

stones in pursuit of the ultimate objective of your cross-examination. They can provide a tool with which to discipline a witness by providing material with which the witness can be confronted when the testimony deviates from what the documents say. Normally you will not want to read from a document unless and until the ­witness has taken a position that deviates from what the document says. Remember that in international arbitrations it is not necessary to ‘read documents into the file’—they are already in the file.

6.79 Demonstrative exhibits can add clarity to the material developed from a witness,

but it is essential that they be handled effectively. They lose their impact if they are handled awkwardly, or if they are difficult to see or to understand. You must ensure that all documentary exhibits accurately reflect the evidence they purport to clarify.

6.80 The system by which you control documents should allow you to have full control

over and reliable easy access to the demonstrative exhibits without the need for any assistance. It is often useful to confront the witness with something in a demonstrative exhibit as part of a question. But do not let yourself become dependent on the witness in your use of a demonstrative exhibit by asking the witness you are cross-examining to assist you either with a demonstrative exhibit or with a document. Of course, if you have one or more assistants with you, which will often be the case, they can be very helpful in dealing with documents and documentary exhibits.

G.  Prepare Follow-up and Alternative Questions 6.81 If you are planning to undermine the credibility of a witness by confronting that

witness with statements made in the written witness statement, it is often helpful to prepare a set of follow-up questions in case you do not immediately get the answer you want. 62

Be Fully Prepared Consider this example.

6.82

Suppose you want to obtain an admission during the cross-examination that the 6.83 witness did not sign a particular contract. Let us also assume that this is important for the outcome of the case. In the written witness statement the witness has said: ‘I do not recall signing the contract.’ If you ask: ‘You did not sign the contract, did you?’ and the answer is ‘No, I did not’, 6.84 stop there. You got exactly the answer you wanted. You should then move on to something else, or even simply stop, if this was all that you wanted from the witness. Of course the other side may attempt on re-direct to make something of the difference between what the witness says now and what appears in the written witness statement, but the witness is likely to be well able to deal with that since the witness will presumably know that the present testimony is not 100% consistent with the written witness statement. Suppose, however, that the witness says: ‘I do not recall signing the contract.’ You 6.85 would probably be wise to pretend you got the answer you wanted, since this is what the witness said in the written witness statement, and so you should move on to something else or stop. Unless the other side can come up with clear evidence that the witness in fact signed the contract (perhaps an eye witness to the signing) you have all you really need; pushing the witness in an attempt in this situation to get a clear statement that the witness did not sign the contract risks getting you into trouble. And if the other side can come up with evidence that in fact the witness signed the contract, which you should know from your own investigation, then you probably shouldn’t try to prove that the witness did not sign the contract. Suppose, instead, that the witness says ‘I am not sure’. Now you will probably want 6.86 to show that the witness is not to be believed. You will therefore ask questions directed towards establishing that it is crucial to know whether or not the witness signed the contract, and thus that it is not credible that the witness does not recall this crucial matter. Suppose, finally, that the witness responds ‘Yes, I did’. In that event, you will con- 6.87 front the witness with his written witness statement in which he said he did not recall. You will then ask a series of questions directed towards showing that this change in his position is not credible. How to use prior inconsistent statements, of which this is an example, is explored in Chapter 12. It would have been helpful in preparing for the cross-examination of this witness to 6.88 think through the possible answers sketched above, and what questions you would ask in light of the answers you got from the witness. That is true for any witness and any question where there is any doubt at all as to what the witness will say. Similarly, it is also usually helpful to prepare alternative questions for situations when the witness refuses to give a straight answer to your question. Of course, as we have said 63

The Nine Basic Principles in other places in this book, you will not read these questions to the witness but, having thought about what the witness may do, you will have prepared questions apposite to various paths the witness may take and you will be better able to deal with the challenges with which the witness has confronted you. 6.89 In doing this kind of preparation, it is often beneficial to use what is sometimes

called a ‘decision tree’—a chart-like device in which each alternative is used to lead to the questions that would follow from it, in branches that extend downward from the initial inquiry. So if the initial inquiry is ‘You did not sign the contract, did you?’, there would be four main branches for each of ‘no’, ‘do not recall signing’, ‘not sure’ and ‘yes I did’, with subsidiary branches descending from those main branches.

6.90 In the following hypothetical example, the cross-examiner is seeking to establish

that the witness does not know a certain person (Mr X) who, the witness claims, gave the witness some information that may be decisive for the outcome of the case, but that the cross-examiner’s client claims is misleading. The idea is that if the witness does not know Mr X then the misleading information is not reliable. Q: Your only source for this information was Mr X, isn’t that correct? A: Yes, that is correct. Q: You did not know Mr X, did you? A: I knew of him. Q: You did not know Mr X, did you? A: I knew of him. Q: You had never met Mr X before, had you? A: No.

6.91 The example is intended to illustrate how an examiner can use an alternative ques-

tion to achieve the same purpose as the question that the witness evaded. The last question is a variant of the two identical questions that preceded it, both of which the witness had evaded. Instead of telling the witness ‘You did not answer my question’, the cross-examiner put an alternative question, which achieved the desired result.

6.92 When you prepare your questions, it is often helpful to write them down. This

will usually help you to organize and structure your cross-examination, to think through where you want to go and how to get there. At the hearing, however, you must not be dependent on written questions. If you are, you will lose flexibility and reaction speed, and quite possibly control as well. You should prepare your cross-examination in such a way that it will be sufficient to glance at your notes now and then.

6.93 How you prepare those notes is an individual matter. It depends upon what you find

works best for you. As a general matter, however, experienced cross-examiners tend 64

Be Fully Prepared to work with an outline rather than with specific questions—although some of the most effective are able to hold that outline in their minds without any written notes at all. The written outline, if you use one, should be cued to the documents and demonstrative exhibits you intend to use with the witness involved.

H.  Mental and Other Training There are two useful final steps in preparing for cross-examination.

6.94

One is to rehearse your cross-examination, mentally, from beginning to end. This 6.95 rehearsal serves as a final check on how your plan seems to work and on whether you have achieved the objective of your preparation. That kind of mental rehearsal also allows you to envisage yourself successfully cross-examining the witness. The other useful final step is to actually rehearse your cross-examination with a live 6.96 person who pretends to be the witness for whose cross-examination you are preparing. You can enlist one of your assistants to play that role, and you can have that assistant be as difficult a witness as you wish. By actually putting to a live person the questions you intend to put to a witness you will learn a lot about how your planned cross-examination is likely to work, and you can find ways to improve what you had initially intended to do.

65

7 BASIC PR INCIPLE NO. 2: BE BR IEF

A. Make No More than Three Main Points

B. The Rationale for Brevity C. Cross-examining Experts

7.01

7.07 7.32

A.  Make No More than Three Main Points 7.01 An effective and convincing cross-examination in an international arbitration is

ideally brief and succinct. You should never make more than three main points on cross-examination. In fact, the fewer main points you make, the better. If you can make even one main point that is often best of all. The example in the previous chapter about the expert whose expertise did not encompass Chinese law is an example both of brevity and of one main point that disposes of the witness.

7.02 To make a point means to achieve, wholly or in part, your ultimate objective in

cross-examining that particular witness. But to make a point does not equate with asking only one question. No—to make a point you will in most cases need to put several, sometimes a long series of, questions, and part of the skill of cross-examination is the ability to construct an array of questions in such a way as to secure the point you wish to make.

7.03 Determining which point or points to make on cross-examination will depend

upon your theory of the case and upon your ultimate objective in the dispute, as well as upon who the witness is and what ammunition you have with respect to that witness. The points you make on cross-examination must be geared towards achieving your ultimate objective. Once you have figured out what you need to accomplish, you should ask only those questions which are necessary to achieve your goal.

7.04 In determining what you need to accomplish, you must keep in mind that in

most international arbitrations it is possible to achieve only limited results in cross-examination. In real life witnesses rarely break down, they rarely make 66

Be Brief unexpected confessions during the hearing, and they do not readily agree that their written witness statements are untrue or that they have lied on oral direct examination. There are other ways to determine success in cross-examination. You may occasion- 7.05 ally be able to show that a witness is biased in favour of one party or prejudiced against another, or has made two inconsistent statements, or demonstrates a lack of credibility by an unwillingness to answer questions, or for some other reason or reasons is not to be believed, in whole or in part. Even an entirely honest witness may unconsciously deviate from describing accu- 7.06 rately what actually happened. This has been shown in a great number of psychological studies of witnesses. You should be prepared to help this kind of witness come closer to telling the arbitrators the objective truth about what happened.

B.  The Rationale for Brevity Why must your cross-examination be brief and succinct? There are many reasons. 7.07 One important reason is that the longer the time you spend on cross-examination, the greater the risk that things will go wrong—that is, that the witness will say things that will hurt your client’s case. A second reason is that a brief, succinct, and focused cross-examination has a much better chance of persuading the arbitrators of the point or points you are trying to make. A third reason is that in international arbitrations the arbitrators are usually quite familiar with the relevant facts of the dispute. This means that there is a serious risk that the arbitrators will lose interest in a cross-examination which is unfocused and long-winded. Yet a fourth reason is the risk that the arbitrators will think you are wasting their time, and as a result will not only lose interest but also become irritated at you, which will disadvantage your client. As explained in paragraph 7.03, you should only put questions which are necessary 7.08 to achieve your goal. Once you have made your point, sit down! Do not carry on with the cross-examination, or move on to your next point. And if, by some chance, you make a good point you had not planned on, you may be wise to stop there even though you had much more that you had planned to do. If you hit a high point, there is a real risk that anything else you do will be on the down slope from that high point and that what you achieved at the high point will be diluted by that downward drift. Sometimes it may in fact be sufficient to put only one question. For example, let 7.09 us assume that you are examining the father of an accountant who is alleged to have tampered with the financial records of the respondent company. In his written statement the father has testified to the impeccable moral and ethical standards of 67

The Nine Basic Principles his son, the accountant. In such a situation, it could well be sufficient to put only one question to the witness: ‘You are his father, aren’t you?’ Just that question and nothing more, except to add: ‘I have no further questions’. Making that one point would usually be sufficient for the arbitrators, when evaluating the father’s testimony, to draw the conclusion you want them to. 7.10 Here is another example of how to be brief and effective, taken from a criminal case

tried in New York City in the late 1970s.1 The cross-examiner, now sadly no longer alive, was one of the great lawyers of his time. He was defending one of a large number of defendants all charged with conspiracy, among other things, and all on trial at the same time. The witness was a professional killer who was in prison at the time he testified and who agreed to testify for the prosecution and against his former associates in crime. During his direct examination he admitted that he had committed 11 murders and that ‘I was given the name and the address and I went there and killed them’.

7.11 Each of the other defence lawyers took this witness through all 11 murders in detail,

including an exploration of whether the witness had shot, knifed, or strangled his victim. The last defence lawyer, whose approach we give here, conducted the following cross-examination: Q: I don’t want to go into all of these details, but you do admit killing these 11 people? A: Yes. Q: You expect to be paroled in six weeks and will be getting out of prison then? A: Yes. Q: And you will then be walking the streets of New York? A: Yes. Q: You don’t know who I am, do you? A: No. The cross-examiner: Good. Let’s leave it that way.

7.12 And he sat down, having done more to demolish the witness than all the previ-

ous lawyers taken together. The jury at first seemed to find this cross-examination amusing and tittered or giggled, but very soon the enormity and horror of what the witness had done sank in, and there was deathly silence in the jury box. It is instructive to recognize how this cross-examination made the witness even more appalling than the other cross-examinations had managed to do, by leaving to the jury’s imagination the terror that his soon being out of prison evoked. 1  United States v. DePalma, 78 Cr. 401 (United States District Court for the Southern District of New York). Judicial decisions in the case are reported in the Federal Supplement, 461 F. Supp. 778, 800 (S.D.N.Y. 1978) and 466 F. Supp. 920 (S.D.N.Y. 1978), and an interesting article about it appeared on the front page of The New York Times of 17 December 1978: . The version of the cross-examination given here is from a lawyer’s memory of the events.

68

Be Brief Here is an example, also taken from real life, of what not to do.

7.13

In a criminal case the defendant was charged with selling cocaine on three ­occasions.2 7.14 His defence called his fiancée as an alibi witness to testify that on the three evenings in question they were watching television together and thus that he could not have been where the undercover narcotics agents said they dealt with him. The cross-examiner asked this question:

7.15

Q: You are his fiancée, aren’t you? A: Yes.

That is where the examination should have ended, perhaps with the cross-examiner 7.16 gently adding ‘Thank you’ before saying ‘No further questions’ and sitting down. As with the father testifying about his son’s integrity, the personal interest of the witness was clear and nothing useful would be accomplished by asking further questions. But the cross-examiner was inexperienced, and so continued:

7.17

Q: And you love him very much, don’t you? A: Yes. Q: And you don’t want him to go to jail, do you? A: No.

Fortunately for the prosecution (in which the defendant was convicted), the cross- 7.18 examination ended there. Imagine, however, that the cross-examiner, being both inexperienced and anxious, had continued with this unfortunate question: Q: And you would say whatever was necessary to keep him out of jail, wouldn’t you?

That question, even though properly framed as a leading question, goes beyond the 7.19 previous questions because it asks directly whether the witness would lie, thereby giving her an opening to undermine the cross-examination by telling the examiner why telling the truth is vitally important to her so that she would never lie. It would thus invite her to make a speech about how and why she is telling the truth. Given that invitation, she might give an answer such as this: A: No, I would never lie. My parents lied to me over and over again while I was growing up and that has created terrible problems for me throughout my life. I have spent ten years working with a psychiatrist to overcome what they did to me. Telling the truth is the only way I can retain my sanity, and I am telling you the truth here.

2  United States v. Zaia, United States District Court, Southern District of New York, 1974. The defendant, Zaia, was convicted and did not appeal and there are no reported decisions relating to the case so far as we know. Given those facts, it is highly unlikely that the testimony was transcribed, and the version given here is from a lawyer’s memory of the events.

69

The Nine Basic Principles 7.20 Or any number of similar things that would undermine the significance of

her initial admission that she is his fiancée, a fact that would support an inference that she would lie to help him. Instead, the answers to this last unfortunate question would tend to support an inference that she was in fact telling the truth as she perceived it, which would not have been what the prosecutor wanted to hear.

7.21 Note, in addition, the repeated ‘And’ at the start of the questions, both those that

were asked and the last one that, fortunately for the prosecution, was not asked. That repeated ‘And’ is clear evidence of the anxiety of the inexperienced cross-examiner, since the examiner had made the desired point with the answers the witness gave. In some other instance the repeated ‘And’ could indicate that the examiner was simply floundering and not able to get the witness to admit what was desired, but that is not what happened here.

7.22 So once you have made your point sit down, and tell the tribunal that you do not

have any further questions. If you choose not to cross-examine at all, then say ‘no questions’, recognizing that how you say it—your tone of voice, your affect—can have an important impact on how the arbitrators perceive the witness.

7.23 Your deciding not to cross-examine may sometimes disappoint or annoy your

client. But you should not let your client push you to cross-examine when your professional judgement tells you that you should not. Explain to your client that the ultimate objective is to win the war, that not every battle need appear decisive, and that the pursuit of a rout in all circumstances may be counter-productive.

7.24 As we have said before, the cardinal rule is not to cross-examine unless you have a

very good reason to. The mark of the master is not to do any more than is necessary to achieve the intended result. When there is nothing, or nothing further, to be gained from cross-examining, you should not proceed.

7.25 We can use a hypothetical example to illustrate how a brief, succinct, and effective

cross-examination could be conducted.

7.26 Let us assume that the witness to be cross-examined, a Mr Green, unequivocally

denied in his written witness statement that he had ever stolen any documents from his employer. Let us further assume that at the main hearing he gave brief oral direct testimony in which he said that he had in fact stolen some important documents from his employer. Mr Green has also said some other things in his written witness statement, and those are things which you would like the arbitrators not to believe. You will therefore want your cross-examination of Mr Green to undermine the credibility of his written witness statement, to lead the arbitrators to disregard it entirely.

70

Be Brief Given that goal, your cross-examination of Mr Green will be directed towards 7.27 showing that his written witness statement is to be disregarded because he has made inconsistent statements about an important matter (a theft from his employer) and that he is therefore not a credible witness as to anything. If you can get him to admit that he lied in his written witness statement that will be a further basis upon which to argue that the witness statement is to be entirely disregarded. Your cross-examination could thus proceed something like this: Q: Mr Green, you have submitted a written witness statement in this arbitration, haven’t you? A: That is correct. Q: Prior to signing your witness statement you agreed to tell the truth in it, didn’t you? A: Yes, I believe so. Q: On page one of your statement you say: ‘I agree to tell the truth, the whole truth and nothing but the truth’. You remember that, don’t you? A: Yes, I do. Q: That is also what you have agreed to do today before this tribunal, isn’t it? A: Yes. Q: To tell the truth, the whole truth and nothing but the truth, right? A: Yes. Q: Exhibit 10 is your witness statement, isn’t it? A: Yes it is. Q: You reviewed the statement for any errors before you signed it, didn’t you? A: I don’t remember. Q: Look at the last page, just above your signature. It says ‘I have read this statement and there are no errors in my statement’. You see that, don’t you? A: Yes, that is what it says. Q: In paragraph 20, line 5 of your written statement you say: ‘I never stole any documents from my employer.’ You did say that, didn’t you? A: That’s what it says. Q: Just a few moments ago, however, you said that you in fact stole documents from your employer, didn’t you? A: Yes, I did. Q: One of these statements is not correct then, Mr Green, is it? A: Is that a question? Q: Let me ask it this way: Which statement is true: the statement you made in your ­written witness statement, or the testimony you made today before this tribunal? A: My testimony today is the truth. Q: So when you agreed to tell the truth in your written statement you did not see fit to honour that undertaking, did you? A: I guess I lied back then.

71

7.28

The Nine Basic Principles 7.29 What do you do with this when making your closing argument to the arbitra-

tors? You make the essential point that the witness admitted being a liar about a matter—the theft of documents from his employer—as to which he could hardly have had any doubt, and to being a liar when he had explicitly undertaken to tell the truth. If he has lied about that kind of matter, you will argue, nothing he says can be believed unless it can be proven by other reliable evidence. Or, as a prose­ cution witness in a criminal case in the United States once said: ‘The judge said I am a very credible witness when what I say is corroborated by incontrovertible evidence.’3

7.30 Yet even a confessed perjurer can be a credible and persuasive witness under the

right circumstances. So you will want to be sure in making this argument that it cannot be rebutted effectively.

7.31 Even if Mr Green were to say that his witness statement is the truth and his oral

testimony in the main hearing is the lie, or if you were to conclude that you cannot rely on his admitting that he lied in his witness statement, you still have the inconsistency in his testimony on which to base the argument that he is not a credible witness as to anything.

C.  Cross-examining Experts 7.32 Effective cross-examination of experts is of particular importance in international

arbitrations because experts so often appear as witnesses. What we have said about cross-examination in general applies as well to cross-examining experts, but there are some further points that need to be made about experts specifically.

7.33 To begin with, if any party will have an expert witness about some subject ger-

mane to the case, then you should, with the rarest of exceptions, have your own expert on that subject. Your own expert will educate you about that subject as well as about the other experts in the field, including those who will appear for other parties in the case. Unless you have your own expert, you will almost certainly not be able to present your client’s position adequately.

7.34 That is obviously true when the relevant field of expertise is technical, something

like engineering or exploration for oil, about which you may know little or nothing. But it may well also be true with respect to foreign law, and even if you know quite a bit about the foreign law involved. You may well need expert testimony on the subject and if you do you will need an expert. If you do need one, you should identify and retain such an expert as soon as possible.

3

  This statement is from a lawyer’s memory of a statement made out of court.

72

Be Brief Even with the education your own expert will give you, it is in general unwise, 7.35 even suicidal, to attack the other side’s expert directly in that expert’s field. That expert will almost always know more than you do, and will be able to bury you with that superior knowledge. There are exceptions to this, however, two of which we give at the end of this section. What then can you do when you are to cross-examine an expert? Here are some 7.36 suggestions: You can explore whether the expert is adequately qualified to give the opinion. 7.37 Your own expert can be of immense help here and can enable you to know whether the other expert is well qualified not only in the general area of interest but also in the specific sub-area directly involved. The cross-examination given in Chapter 6, ­section C of the lawyer who did not know about Chinese law illustrates this concept. Your expert can also help you with the question whether the expert you are to cross-examine is adequately current in the relevant field. A second possible line of attack is whether there is an adequate factual basis for the 7.38 opinion the expert expresses. What investigation did the expert do? How reliable are the facts upon which the expert has based the opinion? Would the addition, or deletion, of some fact change the expert’s opinion? The cross-examination of the doctor about the use of x-rays given in Chapter 8, section C is an illustration of this. Yet another possible line of attack, perhaps a more dangerous one, is the intellectual 7.39 basis of the expert’s opinion. How did the expert arrive at the opinion? What intellectual steps did the expert take? A fourth, and common, line of attack is to question whether the expert’s opinion is 7.40 consistent with standard learning in the relevant field. Is the expert’s opinion consistent with standard treatises? Is it consistent with things the expert has previously written? And, at last, who is the expert as a person. Is the expert a credible person? Does the 7.41 expert make a living testifying instead of doing work within the relevant field of expertise? Is the expert being paid (or overpaid) for testifying? Does the expert have a relationship with a party that is relevant to the reliability of the opinion? You will see that all of these ways of attacking an expert focus mainly on the expert’s 7.42 credibility, either as an expert or as a person or both. That is because it is very hard to attack an expert on any other basis. A corollary of the principle that one attacks an expert on the basis of credibility is 7.43 that it is usually not beneficial to try to persuade the expert to change an opinion already given in the expert’s report. Most experts are very unlikely to change an opinion and, as indicated in paragraphs 7.37–7.41, there are other and better ways to undermine the opinion than by asking the expert to change it. 73

The Nine Basic Principles 7.44 But, as noted in paragraph 7.35, it is sometimes possible to attack an expert without

the need for expertise. The following rather elegant example of attacking an expert’s qualifications needed only general personal information about the claimed expert.

7.45 This cross-examination is taken from a trial in which D.H. Lawrence’s book Lady

Chatterley’s Lover, published in 1960, was claimed to be obscene under the 1959 Obscene Publications Act. Many supposed literary experts testified in the case. One of them was Anne MacDonald Hastings, who was called by the defence.4

7.46 Here, for context, is part of her direct examination as conducted by defence counsel:

Q: Mrs. Anne MacDonald Hastings, I think professionally known as Anne Scott-James? Were you educated at St. Paul’s Girls’ School and Somerville College, Oxford? A: Yes. Q: In 1933 did you join the staff of Vogue? A: Yes. Q: And began a life of journalism. You were some seven years with that paper, and then from 1940 to 1945 you were women’s editor of Picture Post? From 1945 to 1950 were you editor of Harper’s Bazaar and from 1952 to 1956 women’s editor of the Sunday Express, and since 1956 have you been a free-lance writer writing women’s columns for various newspapers? Have you written mainly on children’s education and family problems, marriage, and topics of human interest? A: Yes. Q: I think you have written and published a novel. Since 1940 have you broadcast many times and appeared on television, and have you two children, a girl of nine and a boy of fourteen? A: Yes. Q: Have you read most of Lawrence’s novels? A: Certainly half of them. Q: Have you read Lady Chatterley’s Lover? A: Yes. Q: In your view has it any sociological or educational merits? A: Oh yes, immensely. I think it is extremely important in view of the time at which it was written. Lawrence was an iconoclast; he thought the times were stiff and stuffy, that sex was treated hypocritically, that money was the guard round love and human relationships, and he was smacking at it. Q: I do not know whether you have ever seen an unexpurgated edition? A: I don’t think I have, no. Q: From the point of view of sociological or educational merits what would be your view as to reading Lady Chatterley’s Lover as Lawrence wrote it and the same book with all the parts relating to sex taken out of it? A: I would rather not see it published at all than published in an expurgated edition.

4

  Montgomery Hyde (ed.) The Lady Chatterley’s Lover Trial (1990) 162–3.

74

Be Brief And now here is the cross-examination, brief, no longer than it needed to be, aimed 7.47 at showing that the defence witness did not have expertise sufficient to justify her opinion that the book was not obscene: Q: Please do not think that I am being rude about this. You run, do you not, or are ­responsible for, the ladies’ page in some newspaper? A: No. Q: Or were? A: Some time ago, yes. ‘Ladies’ Page’ is not the phrase we use now; it is very old-fashioned. Q: What? A: We do not use the phrase ‘Ladies’ Page’; it has not been used since 1927. Q: Fashion page? A: ‘Women’s Page’, not fashion. Q: Called? A: It was called ‘Anne Scott-James’s Page.’ Q: Is that what you run now? A: No, I am a free-lance writer now. Q: Still on that type of subject? A: Writing largely about family problems and children, mostly, and controversial topics of the hour. Q: And before that I think you were on the staff of Vogue? A: A long time ago, yes. It was my first job. Q: I only ask you this question—as I say, please do not think I am intending to be rude, but evidence as to the literary merit of this book is confined to experts—I only ­wondered, do you claim any particular qualifications to be a literary expert? A: I think I do, yes. Q: What? A: Well, I was a classical scholar at Somerville College, Oxford. Q: Not every classical scholar at Somerville College, Oxford, is a literary expert? A: No. It is not a negligible qualification, though. Q: I could not agree with you more – A: My father—I was brought up in a very literary family. Q: But apart from the qualifications you have mentioned, you have no other qualifications such as might put you in the category of a literary expert? A: Not the same as a reviewer has, no.

That was the end of the cross-examination. The examiner evidently felt that the 7.48 admission ‘Not the same as a reviewer has, no.’, together with the admission about not every classical scholar being a literary expert and the pathetic reference to her ‘very literary family’, were, taken together, sufficient to undermine the witness’s status as a literary expert.

75

The Nine Basic Principles 7.49 Sometimes you may find yourself in the fortunate situation where a witness who is

held out as an expert is in fact not an expert—and you know it, or at least you have a very strong suspicion that that is the case.

7.50 On the assumption that you have sufficient knowledge in the relevant field, it is

sometimes possible to undermine, even to destroy, the credibility of the expert, or someone who is held out as an expert. This can be risky, however, because a real expert will always know more than you do about the relevant field of expertise. Before you attempt to destroy a witness who purports to be expert by using questions that are directly in the purported expert’s field, you must be very sure you know enough to be able to control the witness.

7.51 An old English murder case 5 illustrates the relatively rare situation where this may

be so and provides the second of the two exceptional cases referred to earlier in this section.

7.52 The defendant was accused of having set fire to a car in which the victim was located.

The defence called a motor engineer who testified on direct examination that, in his experience of car fires, any fire invariably loosened the nut on the union joint in the petrol pipe. This was relevant because the nut on the union joint in the petrol pipe was loose in the car involved.

7.53 Here is the cross-examination.

Q: What is the coefficient of expansion of brass? A: The what? Q: The coefficient of expansion of brass? A: I am afraid I cannot answer. Q: Do you know what the question means? A: Well, if you put it that way, I don’t. Q: But aren’t you an engineer? A: No. Q: But your company deals with the heat treatment of metals. What do you make? A: Springs. Q: Have you any degrees? A: No. Q: And as a fire assessor, did you have any training? A: I think so. Q: Where? A: All over the place. In South Africa and in this country.

5

  Gilbert (ed.) The Oxford Book of Legal Anecdotes (1986) 30–2.

76

Be Brief Q: What is the melting point of brass? A. (after some hesitation) Ah! Brass! Oh, about 1,800 degrees Fahrenheit. Q: If you took half an inch of brass and heated it to 1,500 degrees Fahrenheit, what expansion would you get? A: I would not like to say.

That was the end of the cross-examination. In fact it could have, and perhaps should 7.54 have, ended after the answer to the first question: ‘The what?’, or at the latest after the answer to the third question, ‘Well, if you put it that way, I don’t.’. The witness’s ignorance was entirely clear by then and there was really no need to push him further. If the examiner pushed further there was always the risk that the witness might say something like ‘Oh, the coefficient of expansion of brass. I was thinking of something entirely different. The coefficient of expansion of brass is X and now that I think of it if you took half an inch of brass and heated it to 1,500 degrees Fahrenheit it would expand to Y’. The examiner would have been very unhappy if that had happened, and would have had to scramble in an attempt, which could well have failed, to undermine the witness again.

77

8 BASIC PR INCIPLE NO. 3: USE ONLY LE ADING QUESTIONS

A. What Is a ‘Leading Question’? B. Open Questions

C. Formulating Questions

8.01 8.10

8.15

A.  What Is a ‘Leading Question’? 8.01 A ‘leading’ question is a question which expressly or implicitly suggests the answer

sought by the person asking the question. For instance, a question such as ‘You have a degree from Oxford University, don’t you?’ is a leading question because it clearly suggests that ‘yes’ is the answer to be given. Of course it could be answered ‘no’, but it is deemed leading nonetheless because it is clear that ‘yes’ is what is wanted.

8.02 A ‘leading question’ can also solicit the answer ‘no’. Here is an example: ‘You don’t

have a university degree, do you?’ Of course that question could be answered ‘yes’, for instance by the witness saying something like ‘On the contrary, I have a degree from Oxford University’, but as with the previous question it is deemed leading because it is clear that ‘no’ is what is wanted.

8.03 We explore the concept of ‘leading’ questions in greater detail below. 8.04 National rules of evidence do not apply in international arbitrations, unless the

parties agree to have them apply, but it is still generally accepted that leading questions may not be used during the direct examination of witnesses. During direct examination, therefore, a question seeking the information sought by either of the two questions above would be: ‘Do you have a university degree?’ If the answer to that question were ‘yes’, the examiner would then ask ‘From what university do you have that degree?’ These are non-leading questions. If the answer were no, the examiner would go on to whatever was next in the plan for the cross-examination. 78

Use Only Leading Questions In cross-examination it is the other way around, in the sense that you should almost 8.05 always ask only leading questions and ask non-leading questions only in very special and carefully controlled circumstances. That is because the underlying philosophy of cross-examination is that you take the witness by the hand—sometimes by the collar or the nose or the ear—and lead the witness to where you want the witness to go. You put words in the witness’s mouth. You make the witness say what you want. Using leading questions is an essential part of achieving that. Leading the witness to where you want the witness to go presupposes that you 8.06 know where you want the witness to go, which in turn means that you must be fully ­prepared for your cross-examination, as we have already discussed. It is important to understand that the term ‘leading’ questions is a misnomer, 8.07 since in reality you are not putting ‘questions’ at all in the usual sense of the word ­‘question’. A ‘question’ is usually understood as being a request for new information. In cross-examination you are not asking for new information. So when you ask a ‘leading’ question, what you are doing in reality is putting statements to the witness and asking the witness to agree or disagree with those statements. Your leading question should also be framed as a closed question, that is, one that 8.08 solicits a ‘yes’ or a ‘no’ answer from the witness, as with the questions at the start of this chapter. This makes it as likely as possible that you will retain control of the witness as you move through the questions by which you intend to make one of your three main points (see Chapter 7, section A). As a rule, every leading question should be confined to a short, simple, unambigu- 8.09 ous statement of a single, simple fact. Such ‘questions’ make it impossible for the witness to evade answering the question in the way you want it to be answered unless the witness is willing to be seen as less than honest. There is no room in answering a question of this type for the witness to say more than ‘yes’ or ‘no’. An evasion of one of those simple answers, or a speech on some other matter, will immediately mark the witness as less than forthright and candid.

B.  Open Questions As a result of the principle that you should use only leading questions on 8.10 cross-examination, you should almost always avoid questions that start with ‘who’, ‘what’, ‘where’, ‘when’, ‘why’, and ‘how’—the so-called ‘journalist’ questions— though on rare occasions such questions may be useful provided that you know how to use them. No matter when you use one of these so-called journalist questions, however, your 8.11 doing so will serve as an invitation to the witness to say whatever the witness feels like saying that the witness thinks can be deemed to have any sort of relation to the 79

The Nine Basic Principles subject matter of the question. Given that any witness you cross-examine is almost certain to be adverse to your client’s case, and perhaps even affirmatively hostile towards your client, what the witness wants to say will often be something intended by the witness to hurt your client’s case. 8.12 Thus you will almost always avoid such ‘open’ questions and the ‘open-ended’

answers they invite. That is so not only because they may permit the witness to say something that hurts your client’s case. The witness’s saying something like that may lead you to lose control of the witness and of the cross-examination. You do not want that to happen.

8.13 Therefore, on cross-examination you should almost never ask questions like ‘Why

did you go to the meeting?’ or ‘How do you know that?’ Questions like these are almost always invitations to disaster.

8.14 Parallel to this, you should also avoid questions that are not only ‘open’ but that contain

implicit or explicit conclusory components, such as these: ‘Did Mr. X really agree to the proposal?’ ‘Was it reasonable for Mr. Y to refuse to meet you?’ We return in Chapter 11 to the problems associated with the conclusory nature of questions such as these.

C.  Formulating Questions 8.15 You should formulate your questions in the way these questions are formulated:

Q: You remember the afternoon of 17 May, don’t you? A: Yes. Q: You were present at a meeting that afternoon between A and B, weren’t you? A: Yes, I was. Q: B gave A a piece of paper at that meeting, isn’t that so? A: Yes. Q: B said that the paper contained a business proposal, didn’t he? A: Yes. Q: A and B then discussed that proposal at that meeting, didn’t they? A: Yes. Q: B explained various aspects of that proposal to A, didn’t B? A: That is correct. Q: At the end of the meeting, A said he accepted B’s proposal, didn’t he? A: Yes, he did. Q: A’s actual words to B were ‘I accept your proposal’, isn’t that right? A: Yes. 8.16 Questions like these leave no uncertainty as to what is being testified to. The cross-

examiner is putting short, leading questions to the witness thereby getting the 80

Use Only Leading Questions witness to say what the cross-examiner wants, and at the same time making unambiguously clear to the arbitrators exactly what happened. The following real-life cross-examination is an unusually good illustration of how to 8.17 use leading questions when cross-examining an expert who is honest. It is taken from what is generally regarded as the leading American treatise on cross-examination.1 The case involved a doctor who was an X-ray specialist and who had used X-rays to 8.18 treat a patient for a cancerous tumour. The patient claimed to have become permanently incapacitated as a result of the treatment and sued the doctor for malpractice. Another doctor, who appeared as an expert witness for the patient, testified on 8.19 direct examination that the X-ray treatment was negligent because it had used excessive dosage, that the patient’s condition had received ‘more X-ray than it could stand’. The defence admitted that the X-rays had damaged the patient’s tissue, but argued that this was unavoidable because of the location of the tumour that was being treated. Here is the cross-examination of the patient’s expert.

8.20

Q: Doctor, are you admitted to practice in New York State? A: Yes, sir. Q: You believe in X-ray, don’t you? A: With regard to therapy, you mean? Q: You believe in X-ray as a proper therapeutic agency in the practice of medicine?

Note how the examiner handles the question from the witness. See Chapter 13, 8.21 ­section E, which discusses questions from a witness. A: Yes, I do. Q: And it is a proper and approved method in assisting the treatment of disease, is it not? A: It is. Q: And there are two types of X-ray therapy, one superficial and the other deep, is that not correct? A: That is true. Q: Did I understand you to say, doctor, on your direct examination that you dealt in superficial X-ray therapy? A: While I was connected with the Skin and Cancer Hospital. Q: So while you were there, you had to do only with the superficial variety of that specialty? A: Yes, sir. Q: What is the difference between superficial and deep therapy?

1

 Wellman, The Art of Cross-examination (4th ed. 1936), 115–19.

81

The Nine Basic Principles 8.22 Note this harmless ‘open’ question, probably intended to help the doctor feel at ease.

The examiner could have brought out this difference by leading questions.

A: Superficial therapy is the treatment of lesions on the skin and deep therapy of the deeper structure. Q: Have you treated the deeper structures as well? A: Yes, sir. 8.23 Note this second ‘open’ question. Neither answer can hurt the examiner. A ‘yes’

answer leads to what actually happened in the examination. A ‘no’ answer would enable the examiner to show that the doctor was not qualified to give a persuasive opinion. Q: You do that now? A: I do it now. Q: Deep therapy is recognized, is it not, as a proper and approved method of treating sarcomatous or malignant conditions? A: It is. Q: In order to reach those conditions and have the X-ray affect them, it is necessary to have the electric X-rays or whatever rays they are—we don’t know, do we, what they are—reach into the tissues through the outer skin, the fat and fascia, down to the place where the cancer is?

8.24 This chatty question was probably intended as a further effort to make the doctor

feel at ease before the potentially difficult things to come.

A: That is true. Q: In other words, the X-ray has to find this growth of the cancer in the same way as if it were done by surgery, that a knife would be used to find it? Do I make myself plain? A: Yes. Q: In other words, it has to reach it in order to affect it? A: Yes, of course. Q: How deep the X-rays extend into the body depends upon the particular condition that you are treating, does it not? A: The depth of the X-rays depends upon the penetration of them. Q: The depth of the cancer you are treating or the sarcoma, whatever growth you are treating? 8.25 Note this non-confrontational clarification to provide a better foundation for what

is to come.

A: Yes, of course. Q: So that if you have a deep-seated malignant growth, your rays have to go very deep, don’t they? A: Yes. Q: You don’t criticize sending the rays as deep as the cancer is, do you?

82

Use Only Leading Questions A: No. Q: What effect do those X-rays have upon the growths when they reach them?

Here we have another ‘journalist’ question that could not hurt the examiner. The 8.26 doctor will almost certainly give the useful answer. If he gives a non-useful answer he destroys his own credibility. A: It causes a death of the new tumor cells. Q: Sarcoma is a disease of the cells, is it, or of the connecting tissues? A: It is of the connective tissue. Q: And if the connective tissues between the cells are affected, cancerous growths, the X-ray therapist must send his X-ray in as deep as those are, mustn’t he? A: Yes. Q: In order to perform X-ray therapy, it is necessary to resort to all the recognized m ­ ethods of diagnosis available to the medical profession, is that correct? A: Surely. Q: And it is proper and approved practice to resort to those methods? A: Yes. Q: Is that not true? A: Yes. Q: And among those methods are the taking of X-ray pictures? A: True. Q: That is correct, isn’t it? A: Yes, it is. Q: You don’t criticize the doctor here for taking X-ray pictures in connection with his diagnoses, do you? A: I do not. Q: For instance, the deposition which you said you have read of the doctor who has been called as the plaintiff’s witness, page 4: ‘I made an X-ray examination and I confirmed that diagnosis,’ that is proper and approved practice, isn’t it? A: Yes, sir. Q: When these X-rays from this machine reach into the deep tissues, to this cancerous or sarcomatous growth, they destroy the growth? That is the purpose of the rays? A: They do, yes. Q: And sometimes do those rays, when they go very deep, have some effect upon the ­tissues between the sarcomatous growth and the external part of the body? A: Yes. Q: Sometimes a greater effect than even an ordinary erythema? A: On the deeper structures. Q: Well, on the superficial structures? A: I suppose they might have an effect on the skin. Q: As a matter of fact, they do have, don’t they?

83

The Nine Basic Principles A: Yes, I think I could say yes. Q: In other words, this heavy voltage of X-ray shot into a depth of the body to attack a cancer will have some effect on that which it goes through, to reach the cancer? A: Yes. Q: In X-ray therapy, deep therapy, where you are after sarcoma, or a cancer, what you are looking for is to get at that cancer, isn’t it? A: True. Q: In the same way that a surgeon in going after a diseased condition, we will say in the abdomen, will make a slit in the body with his knife to go in for it, isn’t that so? A: That is true. Q: The theory is the same? A: Yes. Q: The ultimate object of the doctor is to get at the seat of the disease and attack it and eliminate it? That is the purpose of it all, isn’t it? A: Yes, sir. Q: The same purpose in X-ray therapy as in surgery, am I right? A: You are right. Q: Then in order to do that, it is proper, isn’t it, for the doctor to consider primarily the ultimate enemy that he is attacking, namely, the cancer, that is right, isn’t it? A: Yes. Q: And what intervenes between the enemy, the cancer, and the outside is an incident to the attacking of the real thing, isn’t that correct? A: Yes, sir. Q: Sometimes then, in order to make this attack, one of the incidents of the attack is some effect upon the fat and fascia through which you go to get at the cancer, isn’t that true? A: That is true. Q: Did you assume in this case, that this growth was deep or not deep? A: From my own examination? Q: No, no, not at all, from the facts in this case, the testimony of the doctor who has been called as the plaintiff’s witness? A: That it was just below the skin? I understood it to be just below the skin. Q: And have you given your whole opinion upon that basis? A: Yes. Q: If you are wrong in that assumption of fact, that would alter your whole opinion? A: Yes. 8.27 Here, at last, is the change in underlying fact that causes the expert witness to

change the opinion.

Q: In other words, if this particular mass were not just below the skin, but extended down to the bone, the criticism which you suggested, at least by your testimony, you would naturally take back, wouldn’t you? A: Yes, sir.

84

Use Only Leading Questions Q: I call your attention to the testimony of the doctor in this case, called as the plaintiff’s witness: ‘Q: Did you make a diagnosis independent of Dr. Schwartz? A: I made an X-ray examination and I confirmed that diagnosis. The X-ray examination showed the mass to extend into the soft tissues down to the bone.’ Now assuming that to be a fact, you will withdraw your criticism, will you not? A: Yes.

That was the end of the cross-examination. In addition to the consummate skill 8.28 which the cross-examiner exhibited, notice particularly four things. First, that the witness was entirely honest, so that he was willing to agree with the truthful things that the examiner proposed. Second, that the examination was entirely amiable, that there was not a single cross or unpleasant word said by either the examiner or the witness. Third, that at tactically suitable places the examiner used non-leading questions. Fourth, that the witness was able to abandon his prior opinion based on a change in the facts on which that opinion had been based. Occasionally you may find yourself in a situation where it is not necessary—and 8.29 perhaps not even possible—to attack the credibility of an expert witness directly. In the following real-life example, 2 the expert witness—a medical doctor—and the cross-examiner were personal friends. The cross-examiner knew that his friend had testified to his best professional and honest opinion and that there was no way for him to attack or undermine that opinion. This is how the cross-examiner dealt with the situation. Q: Doctor, you say you are a practicing physician. Have you practiced your profession in the City of Chicago in any length of time? A: Yes, I have been in practice here in Chicago now about for forty years. Q: Well, doctor, during that time I presume you have had occasion to treat some of our most prominent citizens. Have you not? A: Yes, I think I have. Q: By any chance, doctor, were you ever called as a family physician to prescribe for the elder Marshall Field? A: Yes, I was his family physician for a number of years. Q: By the way, I haven’t heard of him lately. Where is he now? A: He is dead. Q: Oh—I’m sorry. Were you ever the family physician to the elder Mr. McCormick? A: Yes, also for many years. Q: Would you mind my asking where he is now? A: He is dead. Q: Oh—I’m sorry.

2

 Wellman, op. cit. at 113–14.

85

The Nine Basic Principles 8.30 The examiner then proceeded in the same way to make inquiries about eight or

ten of the leading Chicago citizens whom he knew his friend had attended, all of whom were dead. Having exhausted the list, he sat down quietly with the comment: ‘I don’t think it is necessary to ask you any more questions, please step down.’

8.31 No doubt that cross-examination was charming and helped to preserve the friend-

ship between the cross-examiner and the doctor, but did it really do any harm to the doctor’s credibility? The re-direct examination could have shown that all of the dead former patients had died at advanced ages, if that were true, or of untreatable ailments if that were so, that many in the medical profession had deemed their treatment exemplary, that the doctor had successfully treated large numbers of people who were still alive, that the doctor had a sterling professional reputation, and other things that would have rendered the cross-examination ineffective to undermine the doctor’s credibility.

8.32 Contrast the foregoing example with the following, which is reported to have

occurred in an American trial court.3

8.33 A large group of plaintiffs sued tobacco companies claiming that smoking had made

them sick. A medical doctor, called as an expert witness by the tobacco companies, testified for some six hours on his direct examination that the plaintiffs had not actually been sick at all. The cross-examiner then demonstrated by his questions that the doctor had in fact never met, much less examined, any of the plaintiffs and had, in addition, been paid well for his testimony. Even though the cross-examination only took some five minutes, its effect was to destroy utterly the doctor’s credibility so that the jury returned a very large verdict for the plaintiffs.

8.34 It is reported that the cross-examiner appeared in the courtroom, and conducted

the cross-examination, wearing a doctor’s white coat so as to underline that the appearance of expertise was not equivalent to the existence of expertise. That tactic was upheld in the American courts but it would not be a good idea to use it in an international arbitration.

3

  New York Times, 22 August 2013 (Obituary of Ron Motley).

86

9 BASIC PR INCIPLE NO. 4: USE ONLY SHORT, SIMPLE, UNA MBIGUOUS QUESTIONS

A. Simplicity Is Essential to Effective Advocacy B. Use Only Short Questions

C. Use Only Simple Questions 9.16 D. Use Only Unambiguous Questions 9.28 E. Another Real-life Example 9.45

9.01 9.04

A.  Simplicity Is Essential to Effective Advocacy Lawyers in most parts of the world have been trained to use technical words, long 9.01 sentences, and complicated syntax. The language of a good cross-examiner, however, is a language of simplicity, not complexity. With respect to everything that advocates do, including cross-examination, 9.02 ­simplicity marks the master. Short, simple, and unambiguous questions make it much easier to control the witness, to make the witness answer your question in the way you want it to be answered. This in turn considerably facilitates your task of convincing the arbitrators. If you are asked to repeat the question because the witness truly did not understand 9.03 it, there is almost certainly something seriously wrong with your question. Such comments from a witness must be avoided. How?

B.  Use Only Short Questions You must use short questions. Long questions tend to encourage long answers. You 9.04 do not want that. In virtually all situations it is a wise rule of thumb to limit your question to about 9.05 25 words. Each question should, as a rule, be limited to isolating one single, simple 87

The Nine Basic Principles fact. By putting many such simple questions, you will be able to proceed by small, gradual, factual steps towards achieving the goal of your cross-examination. In other words, you will lead the witness to where you want the witness to go. 9.06 A good way of finishing any of these short leading questions is to add: ‘didn’t you?’,

‘isn’t it?’, and the like.

9.07 For example:

Q: You signed the contract, didn’t you? Q: That is your signature on the document, isn’t it? Q: You went to a meeting on 20 November, didn’t you? 9.08 In many situations the use of these rhetorical language forms, which are particularly

available in English, operates to ‘tighten’ the question and to enhance your level of control over the witness.

9.09 Questions like those are more limiting than something like this:

Q: Is it correct that you signed the contract? Q: Is that your signature on the document? Q: Did you go to a meeting on 20 November? 9.10 Questions like these give the witness far more freedom to say something more than

either ‘yes’ or ‘no’, even to launch into a speech of one sort or another, instead of psychologically pressing the witness towards the ‘yes’ answer you want.

9.11 In similar fashion, you can use other expressions that call for the witness to agree,

such as the following:

Q: You first met Mr X in 2009, right? Q: You have been employed by the X Company since 2005, correct? Q: It is the fact, isn’t it, that you are President of the X Company? 9.12 Note the use of ‘it is the fact’ rather than ‘it is true’. The use of ‘true’ would make

the question into a request for a conclusion to a greater extent that the use of ‘fact’ does. That is because the concept ‘true’ contains an element of judgement to a much greater extent than the concept ‘fact’ does. We return in Chapter 11 to the matter of questions which ask the witness to agree with a conclusion.

9.13 Often you can further ‘tighten’ the question by using the witness’ surname, which

will remind the witness that the arbitrators are focused on the witness as an individual with a reputation and position to protect and are not just engaged in an abstract intellectual enterprise. So you can ask the witness: Q: You signed the contract, didn’t you, Mr. Brown?

9.14 As mentioned in paragraph 9.05, each of your questions should, as a rule, not be

longer than about 25 words. It may require some practice to be able to formulate a 88

Use Only Short, Simple, Unambiguous Questions series of short questions leading to a particular result. When you prepare your crossexamination, it is therefore a good idea to write down these questions in the order that you plan to put them. But remember that writing down the questions is for preparation purposes only! At 9.15 the hearing you must not be dependent on reading to the witness questions which you have written out in advance.

C.  Use Only Simple Questions The simpler the language you use, the better.

9.16

An American judge who had presided over several hundred automobile accident 9.17 cases once said: ‘Not once did I hear a lawyer ask the following question: “How did you drive your 9.18 car?” The questions were always: “What did you then do with respect to the operation and control of your motor vehicle?” ’1 Of course these are not leading questions of the kind you would use on 9.19 cross-examination, but the point is well-taken. You want to simplify, not to complicate. You want to be direct, not obscure. The use of the kind of unnecessary and complicated language the judge com- 9.20 plained about creates unnecessary risks. The witness may not understand the question and may ask you to repeat it. The witness may take part of the question and use it to launch into a speech about something you don’t want to hear or have the arbitrators hear. The witness may try to draw you into a debate about the meaning of your question. Any of these things may cause you to lose control of the witness and of the cross-examination. If the witness uses the poorly worded question as a platform from which to launch into a speech, even worse things may happen. To further illustrate the difference between simplicity and complexity, compare 9.21 the two following examples which both seek the same information from the witness: Here is the example using short, simple questions. Q: Let me ask you about last Tuesday evening. You were at the corner of A-street and B-street, weren’t you? A: Yes.

1  Irving Younger, The Art of Cross-Examination, The Section of Litigation Monograph Series No. 1 (1976) 22.

89

9.22

The Nine Basic Principles Q: You were standing in front of KKM Investments Inc. right? A: Yes, that is correct. Q: KKM Investments Inc. is a stock broker, isn’t it? A: Yes. Q: It was after 10 o’clock in the evening, wasn’t it? A: Yes, it was. Q: KKM Investments Inc. was closed, wasn’t it? A: Yes, that is correct. 9.23 Because the cross-examiner is putting short, simple questions, the witness is being

controlled and the arbitrators will have no problem understanding the facts the cross-examiner is bringing out.

9.24 Contrast the questions in paragraph 9.22 with the following questions covering the

same basic facts:

Q: Well, Mr X, let me ask you this question. It is true, is it not, that you were at the corner of A-street and B-street last Tuesday evening. That is correct, is it not? A: Yes, that is correct. Q: It is also correct that you were standing in front of an establishment commonly known as KKM Investments Inc., isn’t it? A: Yes, as far as I can recall I was standing in front of KKM Investments Inc. Q: And I am not mistaken, am I, if I say that this establishment, commonly known as KKM Investments, is, from a practical as well as legal point of view, what we usually refer to as a stock broker? A: I am not sure about the legal status of this establishment, but I believe it is called a stock broker, yes. Q: Yes, if I may then draw your attention to the time of the day, or rather the evening, it was around 10 o’clock in the evening, was it not, that you were standing in front of KKM Investments Inc., isn’t that true? A: Yes, it was in the evening, and probably around 10 o’clock. Q: Yes, and if you could tell the tribunal, if you would be so kind and tell the arbitrators, KKM Investments Inc., was closed at the time in the evening, was it not? Could you please tell the tribunal. A: As far as I can recall, it was closed. Yes, that is probably correct. 9.25 These questions are not short. They are not simple. They are unnecessarily long and

imprecise. Such questions must be avoided.

9.26 Questions like the ones in this second example often indicate that the examiner

is anxious. It is well known that one of the symptoms of anxiety is a tendency to talk too much, even to talk non-stop—to be a ‘motor mouth’, as a slang expression has it. An examiner who is anxious will tend to make speeches like those

90

Use Only Short, Simple, Unambiguous Questions contained in the questions in the second example, instead of asking the kind of short, simple, unambiguous questions, each limited to a single, simple fact, that are best suited to accomplishing what cross-examination is intended to accomplish. Putting simple questions also means that you should not put compound 9.27 ­questions. Compound questions address more than one subject. They contain more than one question, often several questions or sub-questions. They may confuse the witness and result in the witness asking you to repeat the question. Worse, such questions often permit the witness to take a part of the question and use it to launch into a speech on something you don’t want to hear. Even if the witness does not do that, the witness may choose to answer only one of the questions contained in your compound question, so that you will lose tempo and control.

D.  Use Only Unambiguous Questions Using unambiguous questions requires you to avoid adjectives and other qualifying 9.28 elements. Why? The reason is that adjectives and other qualifying elements tend to ask for conclu- 9.29 sions and, as we will see in Chapter 11, asking for conclusions is something you do not want to do. Compare these two questions:

9.30

Q: The ring cost $50,000, didn’t it? Q: The ring was very expensive, wasn’t it?

The first question is ambiguous only insofar as the witness may deny knowing what 9.31 the ring cost. The witness may say ‘I don’t know what the ring cost’. If the witness does that, you should have something like a bill of sale to prove the cost of the ring and you can confront the witness with it. But the first question does not permit the witness to do what the second question permits. In response to the second question, the witness may decide to give a speech about 9.32 what ‘very expensive’ means. The witness may say something like, ‘When you are dealing with someone like your client, whose income is $500 million per year, $50,000 is nothing’. You will not want to hear that answer. You certainly don’t want to give the witness a chance to add something like 9.33 this: ‘Well, counsellor, you may think it is very expensive given where you come from, but for people like your client $50,000 is chump change.’

91

The Nine Basic Principles 9.34 Responses like that are not imaginary or fanciful or unheard-of. There is an English

case which illustrates the point:2

9.35 The case involved a claimed infringement on a musical melody, and the musician

witness claimed the two melodies were different because their musical accents were different, one being in ‘common’ (4/4) time and the other in 6/8 time.

9.36 The cross-examiner was Sir James Scarlett, and the cross-examination proceeded

as follows:

Q: What is a musical accent? A: My terms are nine guineas a quarter, sir. [A laugh] Q: Never mind your terms here; I ask you, what is a musical accent? Can you see it? A: No, Sir James. Q: Can you feel it? A: A musician can. [Great laughter] Q: (very angry) Now, pray, sir, don’t beat about the bush, but explain to his Lordship, and the jury, who are expected to know nothing about music, the meaning of what you call accent. A: Accent in music is a certain stress laid upon a particular note in the same manner as you would lay a stress upon a given word for the purpose of being better understood. Thus, if I were to say, ‘You are an ass,’ the emphasis rests upon ‘ass’; but if I were to say ‘You are an ass,’ it rests upon you, Sir James. 9.37 Which, given how Sir James had conducted the cross-examination, violating many

of the principles we discuss in this book, is perhaps not such a bad description of him on that occasion—though he was, when on his game and not doing what he did here, one of England’s greatest cross-examiners.

9.38 But the broader point is that adjectives and other qualifiers create ambiguities in

the question. They even may, and often do, make the question into an explicit or implicit request for the witness to agree with a conclusion the examiner will want the arbitrators to reach when the dispute is finally submitted to them for their decision. You must avoid such questions.

9.39 Beyond that, counsel for the party that called the witness will often have instructed

the witness, during the course of preparing that witness to testify, not only to beware of questions that call for ‘yes’ or ‘no’ answers but also to try to avoid ­giving the answer that the cross-examiner wants. If a question contains an adjective or other qualifying element, the witness may seize upon it to discuss what it means instead of answering the question. This may interfere with your plan for the cross-examination because the qualifier may also reveal to the witness too much

2

  See Wellman, op. cit. at 32–3.

92

Use Only Short, Simple, Unambiguous Questions about that plan, thereby increasing the witness’s ability to undermine it. But the witness may do even more serious damage, as illustrated in paragraph 9.36. The way in which a witness may seize on a qualifier to enter upon a discussion of 9.40 what it means is illustrated in the following. Let us assume, for example, that you want to establish that a radio was playing 9.41 loudly. If you ask: ‘The radio was playing loudly, wasn’t it?’, you may be lucky, and the witness may answer: ‘Yes.’ But you may instead get something like this: A: A: A: A:

9.42

‘Well, I wouldn’t say loudly’; ‘What do you mean by loudly?’; ‘That depends’; ‘As a matter of fact, I could barely hear it.’

A better approach would be something like this:

9.43

Q: The radio was on, wasn’t it? A: Yes, it was on. Q: You had turned it on, hadn’t you? A: Yes. Q: You turned it on to listen to it, didn’t you? A: I turned it on for background music. Q: You turned it on to hear it in the background, did you? A: Yes, that is correct. Q: You could hear the radio, couldn’t you? A: Yes, I could hear it. Q: It was on loud enough for you to hear it, wasn’t it? A: Yes. Q: It was louder than the street noise, wasn’t it? A: Yes. Q: Because you could hear it, couldn’t you? A: Yes, I could. Q: You could hear it above the noise of the traffic, couldn’t you? A: Yes. Q: You could hear it above the noise of the people in the street, couldn’t you? A: Yes, I could. Q: The radio was loud enough to hear above the traffic and the people, wasn’t it? A: Yes, that’s correct.

The cross-examiner is proceeding by small, gradual, factual steps, without using 9.44 qualifiers, to take the witness to where the cross-examiner wants the witness to go. The examiner does this without losing control over the witness. 93

The Nine Basic Principles

E.  Another Real-life Example 9.45 We reproduce here an extensive cross-examination 3 of a witness who is referred to

in the cross-examination as Mr X.

9.46 Mr X was the CEO of the corporation which had been sued in the case. The book

from which this cross-examination is taken says that it shows how the favourable impression made by Mr X on direct examination ‘could go to pieces when ­confronted with an analysis of the inherent and hidden contradictions and inconsistencies in his own story on the witness-stand’.

9.47 The plaintiff in the case, a Russian national, sought to recover from the corporation

of which the witness, Mr X, was CEO a commission for the sale of aluminium to the Russian government which that corporation had made around 1916–18. The plaintiff alleged that he had made the introductions that had brought about the sale and that he was therefore entitled to the commission.

9.48 The defence was that the aluminium had been bought by the British government

and not by the Russian government, so that the plaintiff had not brought about the sale and thus was not entitled to the commission. It developed at the end that the Russian government had bought the aluminium but had used English credit to do so. The corporation of which Mr X was CEO thus lost and was obliged to pay the commission the plaintiff had sought.

9.49 The cross-examination was conducted by a leading New York trial lawyer of the

time, and it is worth examining just how he accomplished what he did, and to what extent he used short and simple questions resulting in ‘Yes’ or ‘No’ answers. You will find that he often did not use that kind of question but nonetheless was able to maintain control of the witness and at the end accomplish what he had set out to do.

9.50 Here is the cross-examination:

Q: Mr. X, do I understand you to say that the first time you met the plaintiff was in the office of Shipley & Moore on May 19th, 1916? A: The first time I recall. Q: Well, have you any recollection at all of ever having seen him before? A: What is it? Q: Have you any recollection of ever having seen him before? A: No.

3

 Wellman, op. cit. at 439–52.

94

Use Only Short, Simple, Unambiguous Questions Q: You say he was introduced to you at that time? A: Yes. Q: Was he introduced to you at that time as a stranger, you didn’t recognize him at all, did you? A: No. Q: As a man you had ever seen before? A: No. Q: Had he ever been at your office before? A: Not that I know of. Q: Had he ever seen you at your office before? A: Not that I can recall. Q: Now, this letter dated April 24th, 1916, to the plaintiff, Plaintiff’s Exhibit 3, that letter was written you say on what day? A: On the 19th of May, 1916. Q: You wrote that after returning to your office that day? A: I dictated it, yes. Q: And you did that from some memoranda which you made at the conference? A: Or from memory, one of the two. Q: You say you made no note or longhand draft at the conference? A: I didn’t make any longhand draft, I don’t know whether I made any notes or not. Q: Yes, now do you remember being examined before trial under oath in this case? A: I was. Q: And you were examined by Mr. Roulstone, my associate here, were you not? A: Yes. Q: Do you remember being asked concerning that letter which you have there, this April 24th letter? A: I was. Q: What? A: I was asked about it. Q: Yes, do you remember this question being put to you, ‘Did Mr. Moore introduce plaintiff to you or vice versa?’ A: Yes. Q: And do you remember your answer, ‘He introduced me in his office, but plaintiff was in my office previous to that’? A: Yes, sir. Q: You remember that answer? A: I do. Q: Was that answer true? A: To the best of my knowledge and belief at that time it was true, yes.

95

The Nine Basic Principles Q: So at that time you thought plaintiff had been at your office? A: I did. Q: Do you recall about what time you thought he had been in your office? A: I thought at that time that these letters were written at the time they were dated and I presumed that he must have been in my office in order for me to write them. Q: Now, the date of your examination was on or about April 17th, 1918? A: I don’t recall that. Q: That is the date on the first page? A: All right. Q: Now, your memory of the transactions was as good as it is now, wasn’t it? A: No, it was not. Q: You mean that such a thing as writing those letters, the three of them together and dating them back had changed your memory at that time? A: During that time it had. Q: So that when that letter was shown to you as of April 24th, bearing date April 24th, you concluded that you had seen him in your office? A: I took it for granted that I had dictated that letter on April 24th, and that he must have called. Q: After this deposition was taken down, your testimony, you read it over, signed it, and swore to it, is that right? A: I read it over, yes. Q: Now, do you recall at what time you read it over and signed it? A: I read it over a number of times; I don’t recall when I signed it. Q: Do you recall that you signed it only last month? A: I know it was only a short time ago, yes. Q: Well, it was last month, was it not? A: I think so, yes. Q: Now, of course, in reading it over and before you swore to it and had it upon the files of this court, you read it all, didn’t you? A: Yes. Q: So when you swore last month you swore to the answer that ‘Moore introduced me in his office, but the plaintiff was in my office previous to that’? A: I did. Q: You didn’t correct that testimony? A: I did not, didn’t know I had any right to. Q: You had had a year to think it over and this case was on the eve of being tried then, was it not, it was on the day calendar? A: I had something else to do during that year besides thinking of that. Q: Now, let us take the next question and answer to the one I just read you: ‘Q. When? A. About the time that letter of April 24th was written.’ Do you remember that? A: Yes.

96

Use Only Short, Simple, Unambiguous Questions Q: ‘Q. Was it in the morning or afternoon? A. I have no idea; I stated before that he must have been in my office or I would not have written those letters.’ Do you remember that? A: Yes. Q: ‘Q. What business was he there on, do you know, did he tell you? About aluminum.’ Is that right? A: Yes. Q: ‘Q. He was there about aluminum, was he? A. Yes’? A: Yes. Q: ‘Q. Did anybody introduce him to you at that time? A. No, he sent in a card’? A: Yes. Q: Well, now, there was nothing in this letter of April 24th, when you first saw it, as you say now on this examination, in April, 1918, that suggested about his sending in a card, was there? A: No. Q: You got that out of some independent thought of your own, didn’t you? A: Likely. Q: Now, when you said that he sent in a card that day, did you have any recollection, did you have any vision, did you conjure up plaintiff coming in and presenting you a card? A: I don’t recall now what I had in mind. Q: You don’t know where you got the card idea, do you? A: I do not. Q: ‘Q. He walked in alone, did he? A. He came into my office, yes I saw him alone.’ So those were your answers to that matter and your explanation of that letter of April 24th, at the time you were examined in April 1918? A: Yes. Q: And the time you swore to this deposition in April, 1921? A: Yes. Q: Now, Mr. X, so there may be no mistake about it, these other two letters, one dated May 16, 1916 and the other dated May 18, 1916, were all written by you, you say at your office or dictated in the afternoon of May 19th? A: That is right. Q: There had been some conversation at the office of Moore & Shipley about your writing such letters and giving them to plaintiff, had there not? A: Yes. Q: They were for the purpose of showing to his customer, were they not? A: He wanted letters to show to the party from whom he expected to get an order, yes. Q: Now, why did you date back the letter to April 24th and why did you date back one of the letters to May 16th? A: Plaintiff told me that he had had quotations from the Export & Import Corporation, such as are outlined in these letters, and that he had submitted them and now that I had previously explained or told plaintiff that most of the aluminum had been sold and now that it was sold he wanted something to explain to his customer why it was.

97

The Nine Basic Principles Q: Now, didn’t he say at that conference that he had sent a cable? A: No. Q: Conveying quotations? A: No. Q: Did he say that he had already made quotations based on quotations which he had received? A: He didn’t put it that way. He said that he had been quoting on aluminum but he didn’t say that he had been quoting on aluminum that I had quoted him on. Q: Yes, but now you had quoted him on aluminum? A: I had not. Q: Previous to this time? A: I had not. Q: So you say that although you had never quoted Moore and Shipley aluminum you gave plaintiff a quotation of 66 cents a pound and dated it back to April 24th? A: At their request I did. Q: Did you think that if you had not actually quoted plaintiff, either directly or through somebody else, on or about April 24th, as to that quantity, that that might enable him to deceive somebody? A: Not at all. He said he had these quotations from Moore and Shipley. Q: But you say he didn’t have those quotations from you? A: How did I know that? How did I know that Moore and Shipley didn’t have? Q: I thought you said a few moments ago that you had not quoted him or Moore and Shipley? A: No, I misunderstood what you said. I didn’t know but what Moore and Shipley had received these quotations from some broker or somebody else that had received them from me. Q: Do you recognize those figures as figures and prices which you had quoted on or about April 24th? A: I do not. Q: Was that the market then for aluminum? A: Yes. Q: 66 cents a pound for that quantity? A: Yes. Q: So that, although you didn’t know that he had received any quotations at all as of April 24th from you, you were willing to give him a letter signed by you under date of April 24th, giving him a quotation as of that date and that quantity? A: I did. Q: Now, why was the letter of May 16th dated May 16th instead of May 18th and May 19th; what is your explanation of that? A: I had sold some aluminum about that time and I had told plaintiff that I had disposed of some of the aluminum that I had and he suggested that I write a letter along that line, which I did.

98

Use Only Short, Simple, Unambiguous Questions Q: You had sold about 60,000 pounds? A: That is what it says there. Q: Well, was that the fact? A: I don’t know. Q: You don’t know. Now, who suggested at that conference the fact that you had sold— who mentioned the ­figures 60,000 pounds, or weren’t they mentioned at that conference at all? A: I don’t recall who mentioned it but very likely I did. Q: So the suggestion of your having sold 60,000 pounds came from you at that conference? A: Likely. Q: And you don’t recall now whether it was correct or not? A: If I said so, it was correct. Q: But you don’t recall any such sale at the present time? A: No. Q: Now, as I understand you to say, that although these letters were written for the ­purpose of being shown to the customer, that you don’t recall when you got in the presence of General Sapojnikoff that those letters were produced? A: They were not produced. Q: Even though they were written for that purpose? A: On the other hand, I don’t mean that exactly; I mean they were not shown to me. Q: Well, I am talking about whether or not in your presence they were shown to General Sapojnikoff? A: I did not see those letters while I was in that conference. Q: Whether you saw them or not, did you see letters, yellow paper like that, being shown? A: I did not. Q: At this conference with General Sapojnikoff did he say anything to you as to whether or not he would be able to place a large order with you? A: He—plaintiff told me that after talking to the general in some language I didn’t understand that if the general was sure that I could make deliveries he was interested. Q: Well, did he say anything about whether if you could deliver in large quantities he would place a large order with you? A: I don’t recall whether he said he would place any business or not. Q: Well, now, on your examination before trial, page 16, were you asked these questions and did you give these answers: ‘Q. Did General Sapojnikoff’—not plaintiff now—but ‘did General Sapojnikoff at that conference say anything to you about his Russian Government requiring aluminum?’—do you recall what your answer was to that questions? A: He told me – Q: Do you recall what your answer was? A: I do, yes. Q: Which was it, ‘Yes’ or ‘No’? A: Oh, I don’t know about that; I know what the general told me about that.

99

The Nine Basic Principles Q: Well, your answer here is ‘Yes’; is that correct? A: Yes. Q: Then: ‘Q. What did he say? A. He said that if he were sure I can deliver the aluminum he would give me a large order?’ A: Yes. Q: Well, now, that refreshes your recollection that he did say that, is that it? A: He said that through plaintiff. Q: When I asked you a moment ago as to whether he said whether he had said either directly or through plaintiff that he would give you a large order, was your answer that he had said so? A: I don’t recall. Q: You don’t recall your answer of a moment ago? A: I don’t recall that you asked me whether it was through either one of the two. Q: Now, at this conference with General Sapojnikoff did you say anything about the quantities that you could furnish of aluminum? A: Yes. Q: What did you say? A: I told him I could furnish aluminum and so far as I recall the offers I made him were on a basis of that memorandum. Q: Well, I am asking you now, not on the basis of the memorandum, but I am asking you what you said in the way of the amount of aluminum that you could furnish? A: I told him I could supply aluminum. We didn’t talk very much about definite quantities. Q: Did you say that you could supply half or as much or twice the amount he desired? A: No, no, we never got to a point where he told me how much he desired. It was much more important to me to know about the terms; I was not bothering about the quantity. Q: The subject was terms with you? A: Principally, yes. Q: And he never got to the point where the told you of quantities and you never got to the point where you quoted him quantities? A: Not that I can recall. Q: Well, you are clear about that, aren’t you? A: Yes. Q: Now, I ask you whether on your examination before trial you recall these questions and answers: ‘Do you remember what you did say to him? A. Not very well, no, I used my best business ability to convince him that I could supply aluminum’: you remember that answer, do you? A: Yes. Q: ‘Q. Did you not say that you could deliver a stipulated quantity of aluminum each month thereafter? A. I did.’ Do you recall that answer? A: I don’t recall that answer, but I presume it is there.

100

Use Only Short, Simple, Unambiguous Questions Q: You haven’t any doubt that that was the answer which you made at the time? A: Not a bit, that is the answer I gave. Q: And that I am correctly reading from the minutes, your counsel checking me up? A: Certainly not. Q: Now, I ask you if you recall this answer to this question: ‘Q. What was the maximum amount of aluminum which you offered to him? A. I have no idea; I should think that I would have told him that I could supply twice what he required.’ Now, do you remember giving that answer? A: Yes. Q: So that that refreshes your recollection that you and he did get down to the ­m atter of quantities and that you told him you could give him twice what he required? A: I said I told him I could, very likely I did. Q: We will not have any ‘very likely’. Doesn’t that refresh your recollection that you did get down to the subject of quantity and that you told him that you could give him twice what he required? A: I said I thought I would have told him that; I didn’t say I told him. Q: Did you or did you not tell him that you could deliver twice what he required? A: I did not tell him that I could deliver twice; that is only a conclusion. Q: Now, Mr. X, you say, as I understand it and are quite clear that this letter, Plaintiff’s Exhibit 1, the Sapojnikoff letter, was never shown you until this trial? A: Yes, it was not. Q: It was not shown to you until this trial? A: It was not. Q: Plaintiff never showed it to you? A: He certainly did not. Q: You said he showed you some letter upon which the heading was bent back and the signature was bent back and he let you just read a line or two, is that it? A: That is right. Q: Will you tell me again what that line or two was? A: In effect, it said ‘I am interested in your proposition.’ That may have been the exact wording. I don’t know. Q: When he showed you the way down to General Sapojnikoff’s office, is that it? A: Yes, on Fifth Avenue, going down to 23rd Street. Q: Well, he didn’t tell you at the time who the signer of the letter was? A: Certainly not. Q: Although you were headed for General Sapojnikoff’s office? A: How did I know that? Q: Oh, you didn’t know that you were headed for the Russian Commission at the time you left his apartment? A: Why, no.

101

The Nine Basic Principles Q: You say then, as I understand it, that you went up to his apartment house? A: I didn’t go to his apartment house. Q: Where did you meet him, on the morning of May 20th? A: On Fifth Avenue, on the sidewalk somewhere about 29th Street. Q: Not in an entrance to an apartment house? A: Yes, it was in the entrance of some house or an office building I thought it was. Q: Either an apartment house or an office building, is that it? A: I didn’t know about that. Q: Then he just took you out on an errand, and you didn’t know where you were going? A: He said he wanted me to go on and meet his customer. Q: And he didn’t say who that customer was? A: He did not. Q: And the first you knew about who the customer was, was when you arrived at suite 1801, Flatiron Building? A: Well, in the Flatiron Building, I don’t know— Q: Yes, now, on the way down to the Flatiron Building had anything been said, was there anything said, between you two, between the two of you, about commission or compensation in any form, shape or manner? A: No, in fact, we didn’t talk. Q: He was taking you simply to an unknown customer, and you and he were going along the street without talking? A: Yes, he was going like the devil, and I was trying to keep up. Q: You did know, however, you were going to try to make a sale of aluminum, did you not, at the other end of this visit? A: Yes. Q: And you, you and he, you say, never discussed plans for the forthcoming conversation with this customer? A: I had told him the day before what I required, and he said he thought he could do it, and that was the end of it so far as I was concerned. Q: Now, you can answer that question, whether going down this street here to wherever you were going, an unknown destination, you, a shrewd man of business, did go with him without discussing in any way the plan for presenting yourself effectively to the customer? A: We did not discuss any plans. Q: He didn’t deter you, you say, in any way, but he just went along like the devil, and you trotted behind as fast as you could, is that right? A: That is right, yes, sir. Q: Did you ever see that letter which you say was creased down at any other time? A: What letter? Q: The letter which was bent back, top and bottom, did you ever see it again? A: No.

102

Use Only Short, Simple, Unambiguous Questions Q: Now, when you got into the Flatiron Building, was it that the light was vouchsafed to you, that you were going to see the Russian Commission? A: I don’t know what you are talking about. What do you mean by ‘light’? Q: Light, I mean information in words—when did that dawn upon you, that you were going to see the Russian Commission? A: When we got to the Russian Commission offices, I knew where I was then. Q: And then you went right in to see the general, is that right? A: Well, we were taken into the general’s office, yes . . . Q: You didn’t consider these letters of April 24th, May 18th and May 16th as intended to be firm offers which he could show to his customer? A: Those offers were not firm at this date, when the letter were written, and he had told me that he had received them previously from Mr. Moore, and it didn’t make a bit of difference to me because I was not obligated in any case. Q: Yet you were quoting him a price of 66 cents a pound for him to show his customer? A: I should say that he didn’t intend to show that to his customers; that would be my interpretation. Q: That is the idea that that the letter was dated back so as to match a quotation which he said he had given? A: To his customer. Q: To his customer? A: Yes. Q: And yet that he was not going to show his customer that letter as proof that he had had that quotation? A: Well, I don’t know. I don’t know do business that way. Q: You wrote the letters, didn’t you? A: I wrote at his request, yes. Q: And you do business at least to this extent in that way that you were willing to sign your name to a quotation as of April 24th when you didn’t know that you had given it? A: I didn’t say—I knew I had not given it to him though. Q: To that extent you do business that way, don’t you? A: All right.

It is hard to tell, just from this cross-examination, what it was that led to the decision 9.51 against Mr X’s company. In addition to whatever damage that cross-examination may have done to Mr X’s credibility, it clearly served to demonstrate that the plaintiff had been present when Mr X met the Russian general who was representing the Russian government in the purchase of the aluminium. But the description in the book from which this cross-examination is taken clearly suggests that what decided the case against Mr X’s company were documents showing that the Russian government had purchased the aluminium using English credit.4 4

  See Wellman, op. cit. at 438.

103

10 BASIC PR INCIPLE NO. 5: LISTEN TO THE ANSW ER

A. Evaluate the Answer Before Proceeding B. An Illustrative Hypothetical Case C. The Witness’s Psychological State D. The Nature of the Answer—A Simple ‘Yes’ E. The Nature of the Answer—More than ‘Yes’

10.01 10.02 10.17 10.19

F. Failure to Answer—In General G. Failure to Answer—the Honest Witness H. Failure to Answer—the Witness with an Agenda I. Another Illustrative Hypothetical Case

10.22 10.25 10.29 10.34

10.21

A.  Evaluate the Answer Before Proceeding 10.01 You must listen to what the witness says in response to each of the questions you

ask. You must also understand the meaning and significance of what the witness says. Partly, of course, this is because you will want to know whether the witness has in fact answered your question. Partly it is so that you can—and perhaps will need to—change course in the cross-examination and move the examination in a direction different from the one you had planned, if what the witness has said, or how the witness has said it, makes that desirable or necessary.

B.  An Illustrative Hypothetical Case 10.02 Consider, with respect to the need to change course, the following hypothetical case. 10.03 You are going to cross-examine a witness who has visited the CEO of a major inter-

national business. Your assistant has prepared some questions for you to use, and you have been so pressed for time that you are using them without having fully considered whether that is a good idea.

104

Listen to the Answer This exchange occurs:

10.04

Q: Then you entered the CEO’s office, didn’t you? A: Yes, I did. Q: What did you see? A: Well, I walked into the CEO’s office and there was the CEO standing at a desk with a large suitcase full of money open before him and he was counting the money.

The next question on your list is this:

10.05

Q: And when did you next see the CEO?

Should you ask that question or does the ‘suitcase full of money’ answer mean that 10.06 you should change course? Well, that depends upon what you were trying to accomplish with the cross-examination. Suppose you were trying to show that the witness was out of touch with reality 10.07 and therefore not to be believed about anything. In that event, you probably would not ask that next question. What the witness has described almost certainly did not happen, and the witness’s willingness to testify to it demonstrates that the witness is simply making things up, is out of touch with reality—is crazy, to put it plainly. The CEO of a major international business would never receive a visitor in circumstances so strongly suggesting the existence of a bribe and would certainly never exhibit the bribe money—the ‘suitcase full of money’—to a visitor (unless, of course, the visitor was part of the bribery scheme). So if your purpose was to show that the witness is crazy, not only do you probably 10.08 not ask that next question, but in addition you probably stop the cross-examination immediately after getting the ‘suitcase full of money’ answer. That answer has almost certainly made the point you wanted to make in that it described something that almost certainly did not happen, something that the witness almost certainly made up out of whole cloth. So you would probably say something like: ‘Right. Thank you very much’, being sure to do so with an appropriate tone of disbelief. But before you actually decide to end the cross-examination, it would probably 10.09 be a good idea to wait a short time—perhaps ten seconds or so—to let the oddity of the ‘suitcase full of money’ answer sink in. During that short period of waiting you would watch what was going on in the hearing room in reaction to the answer and you would consider, given what you could sense of that reaction, whether any further question might be useful. Suppose you concluded that one of the arbitrators did not quite see the point. That 10.10 might lead you to ask some further question with a view towards helping that arbitrator see the light. 105

The Nine Basic Principles 10.11 But a question such as ‘And when did you next see the CEO?’ would almost cer-

tainly not be appropriate for that purpose. You might instead risk asking one or more of the ‘journalist’ questions so as to give the witness a further opportunity to make things up. For instance, you might ask something like this: Q: Tell us more about what you saw? Q: Did the CEO say anything to you? What did the CEO say?

10.12 If you did that, however, it would be essential that the answers to the questions gave

further proof that the witness was crazy. That might not be easy to accomplish. One never knows for sure what a witness may say.

10.13 So, after thinking about it, you would probably decide to end the cross-examination

there. It would not be unreasonable to assume that the two arbitrators who had gotten the point would be able to persuade the one who had not.

10.14 Suppose, however, that your purpose was different, that you wanted to show that

the witness had just bribed the CEO or was about to be bribed by the CEO. If that was your purpose, that next question on your list might not be inappropriate. It could lead into a line of questions demonstrating how often the witness and the CEO met and what the purpose of the meetings was.

10.15 But you might also want to develop more of the ‘suitcase full of money’ meeting

before going on to the later meetings. If you had the necessary information, you might be able to extract admissions as to what more had happened at the ‘suitcase full of money’ meeting as a prelude to the later meetings. And you might risk one or more ‘open’ questions such as these: Q: Did you have any conversation with the CEO about the money in the suitcase? Q: What did the CEO say? Q: Did the CEO say anything about where the money had come from? Q: Did the CEO say anything about what the money was to be used for?

10.16 Of course, these are not ‘leading’ questions of the type this book tells you to use, but

the ‘suitcase full of money’ answer may make them appropriate. Your sense of how willing the witness is to be candid will play a highly significant role in your decision as to what do to. Just because the witness—here assumed not to be crazy—is dishonest in business does not necessarily mean that the witness will not be honest when testifying. Even a confessed perjurer can be a credible and persuasive witness.

C.  The Witness’s Psychological State 10.17 You will want to be sure the witness has answered your question, as we have said

in paragraph 5.66, and you will want to adapt the questions that follow it to any unexpected things the witness may say. 106

Listen to the Answer But that is not all. You will also want to learn as much as possible about the 10.18 ­w itness’s emotional and psychological state—where the witness is emotionally and ­psychologically—at the point in the cross-examination where the witness responds to the question. To learn those things about the witness, you need to do more than just listen to what the witness says; you also need to listen to how the witness says it. And you will need to watch very carefully the witness’s non-verbal signals. These include especially the witness’s face and hands. You will want to notice the witness’s facial expression and if it changes during your questioning then how it changes. You will want to notice whether the witness looks to any particular places or at any particular people in the hearing room, and how the witness’s expression changes in the course of looking at those places or people. You will want to notice how the witness’s mouth, eyes, eyebrows, and hands move, if they do. From these non-verbal signals you will try to discern as best you can what they reveal about the witness. You will also want to watch the arbitrators, the other parties and their counsel, and anyone else who happens to be in the hearing room, so as to learn as much as possible about how the witness is being received by them.

D.  The Nature of the Answer—A Simple ‘Yes’ Suppose you believe that the witness in fact answered the question—perhaps 10.19 by simply saying ‘yes’, which would ordinarily be the appropriate answer to a short, simple, unambiguous leading question limited to a single, simple fact. You will then be able, without more, to ask the next question. But the way in which the witness answered the question—even, in the case posited, 10.20 the way in which the witness said ‘yes’—is something of which you should be aware. Did the witness seem cooperative in giving the answer? Did the witness seem unsure or hesitant before answering, or hostile or combative? What did the witness’s tone of voice and facial expression and hand movement or movements suggest, and did any of them change from the witness’s previous answers? If the witness did any of these things, what can you infer from what the witness did? And, using whatever inferences can be drawn, what effect, if any, should you draw from those inferences on how to proceed?

E.  The Nature of the Answer—More than ‘Yes’ The same is true, only more so, if the witness said more than the appropriate ‘yes’ 10.21 in answering the question. In that event, why did the witness say more than was necessary to answer the question? What did that ‘more’ contain, and can it be used to benefit your client’s case? 107

The Nine Basic Principles

F.  Failure to Answer—In General 10.22 Matters become even more complex if you believe that the witness did not answer

the question. There are many reasons why that may have happened. Did the witness not understand the question? Is there some other explanation consistent with the witness being honest and not trying to be evasive? Or did the witness really want to evade the question in order to avoid a painful admission or for some other reason? Did the witness want to get before the tribunal a fact that the direct testimony (whether a written witness statement or oral testimony) did not contain? Was the witness trying to manipulate the examination to the disadvantage of your client in some other way?

10.23 Your understanding of why the witness did not answer the question will condition

what you choose to do next. Should you take steps to obtain an answer? Or should you try to have the witness clarify in ways that will not damage your client’s case why the witness cannot answer? Or should you try to position the witness in some other way that seeks to accomplish what you set out to do with the cross-examination?

10.24 Your understanding of why the witness did not answer will also provide some idea

of what dangers may be encountered as the examination proceeds. That is because it will tell you whether the witness is trying to be honest or is instead intending to be hurtful to your client’s case.

G.  Failure to Answer—the Honest Witness 10.25 Suppose, first, that your sense is that the witness is honest and was not trying to

avoid answering the question. An honest witness will usually work with you to get an answer to the question and so you could proceed on the assumption that the witness is willing to do that.

10.26 On that assumption, you could ask the question again, perhaps saying ‘Let me ask

you that again’ or ‘That was not my question. Let me ask it again’. Or you could preface a follow-up question by saying something like ‘Let me ask you the same thing in a different way’. Or you could seek the same information by asking a question that uses part of what the witness said. Or you could ask a series of questions the effect of which is to obtain that information.

10.27 You would not, however, normally end such a series of questions by saying ‘so your

answer to my initial question is “yes”, isn’t it?’, since that risks being ‘one question too many’—a subject which we explore again in the next chapter. Nor would you normally want to ask whether the witness understood the initial question, since doing that risks drawing the witness into a conversation with you that you cannot 108

Listen to the Answer control. These are not invariant rules, however, and there may be witnesses with whom you will rightly deem it advantageous to ask these or other questions that you would normally avoid. If the witness is in fact honest, the follow-up questions suggested in paragraph 10.26 10.28 will generally produce an answer to the initial question. If they do not, you can be reasonably confident that your first impression was wrong, that the witness is not willing to be cooperative, and that the approach to the witness should therefore be changed.

H.  Failure to Answer—the Witness with an Agenda Suppose you conclude that the witness’s failure to answer the question was a mani- 10.29 festation of an agenda the witness has, and that the witness’s agenda is something other than simply answering the questions honestly to the best of the witness’s ability. You may have been able, before the cross-examination began, to infer the existence of such an agenda from what you know about the witness. Or you may conclude that there is such an agenda because the witness is not willing to cooperate. Or what you discern of the witness’s emotional and psychological state as the cross-examination proceeds may suggest the existence of such an agenda, even if the witness has not been uncooperative as yet. In any of these situations you will have to be prepared to deal with the witness’s uncooperative behaviour when it emerges. How would you go about getting such a witness to answer the questions? Getting 10.30 the questions answered is important. You are asking them because you believe the answers will advance your client’s case. In addition, your maintaining control of the witness and of the cross-examination 10.31 is relevant to how the arbitrators perceive your standing as an advocate. Loss of that control could prejudice the arbitrators in how they perceive you and in how readily they find your arguments persuasive. But the larger purposes of the cross-examination may well be served even if the 10.32 witness refuses to answer the questions, or evades them, or uses them to make speeches aimed at helping your adversary’s case. If that happens, what can you do to use what the witness does to accomplish what you had set out to do with the cross-examination? There are many answers to that question, but it is worth noting here that if a witness 10.33 repeatedly evades your questions or uses them as a basis for making speeches, the arbitrators will quickly understand what is going on and may well begin to discredit the witness. If a witness does these things, it is thus crucially important for you to remain especially aware of how the arbitrators are reacting to what the witness is doing. 109

The Nine Basic Principles

I.  Another Illustrative Hypothetical Case 10.34 Let us now use another imaginary case to illustrate some of these points. As the

examination proceeds, the examiner tries to understand where the witness is with respect to the case. Is the witness being cooperative or resistant? Has the witness’s attitude changed? What should the examiner do given where the witness seems to be?

10.35 Here are the essential facts of that imaginary case. 10.36 The examiner represents a client who bought stock in August 2009 in a company

called Thieves, Inc. in reliance upon a report issued by Bad Advisors LLC, dated 30 June 2009. Thieves, Inc. filed for bankruptcy in September 2009 and the client lost his entire investment and is suing Bad Advisors to try to recover what he lost. His claim is that the 2009 report was misleading, and that Bad Advisors issued that report either knowing that it was misleading or not caring whether it was misleading or not. Assume the claim is valid under the relevant law.

10.37 John Jones, the analyst at Bad Advisors who prepared the report, is to be

cross-examined. The cross-examination is intended to suggest that Thieves, Inc. paid the CEO of Bad Advisors to obtain a false favourable report. The examiner has no direct evidence of such a payment but believes it occurred. That belief is based on two things.

10.38 One is that Jones’s reports on Thieves, Inc. for 2005 through 2008 were negative

while Jones’s report for 2009 was positive even though there had been no improvement at Thieves, Inc. The earlier reports stated that ‘only a moron would invest in Thieves, Inc. because it is a bunch of thieves’. The 2009 report said that Thieves, Inc. would be ‘a superior investment suitable for widows and orphans’. The examiner further believes that Jones may well not know about any payment to the CEO, but that Jones is nonetheless quite sure something was strange and probably improper about the 2009 report.

10.39 The other basis of the examiner’s belief about a payment to the CEO is a written

witness statement affirmed by Jones’s former secretary to the effect that (a) Jones worked on his reports alone in his office and instructed her that he was not to be disturbed even though he left the office door open so that he could see and hear her, (b) the CEO shouldered her out of the way while Jones was working on the 2009 report and went into Jones’s office where they had a conversation, and (c) she was fired in early July 2009 for insubordination.

10.40 Consider this imaginary cross-examination, and the comments appended to it:

Q: You work for Bad Advisors LLC, don’t you, Mr Jones? A: Yes.

110

Listen to the Answer Q: I’m going to refer to them as Bad Advisors. You’ll understand that I mean Bad Advisors LLC when I say that, won’t you? A: Yes. Q: You’ve worked for Bad Advisors since 2001, isn’t that right? A: Yes. Q: In that work you analyse companies as potential investments, don’t you? A: Yes. Q: You have analysed many different potential investments, haven’t you? A: Yes. Q: And when you have completed an analysis you write it up in a report, isn’t that right? A: Yes. Q: You have had occasion to analyse Thieves, Inc., right? A: Yes. Q: More than once? A: Yes. Q: Your first analysis was in 2005, wasn’t it? A: I have made many analyses but I don’t recall the dates.

This is not an answer to the question, though it may be an entirely truthful answer. 10.41 What should the examiner do next? To decide that, the examiner needs to know 10.42 exactly why the question was asked, since that will dictate what to do next. Let us suppose that the examiner asked the question as a prelude to establishing that 10.43 the CEO had never told Jones what to put in a report prior to the 2009 report. The examiner also wants to get Jones to provide as much information as possible about the preparation of the 2009 report, ideally enough to lead Jones to admit things that will support an inference that the CEO told him what to write in that report. Before the examiner asks the next question it will also be necessary to decide as best 10.44 as possible why Jones did not answer the question. Was he just being honest? Or was he also trying to establish a basis for an inference that his memory is vague? If the latter, is he also trying to make it as hard as he can for the examiner to establish that he consciously wrote a false report in 2009? Suppose the examiner concludes that Jones honestly does not recall in which year he first wrote a report on Thieves, Inc., but that he is also trying to make the examiner’s life difficult. The examiner has the reports for 2005 through 2009. The next step will be to show 10.45 the 2005 report to Jones and ask him whether it is his report from 2005, perhaps by asking questions like these: Q: Let me show you an analysis of Thieves, Inc. in a report dated 30 June 2005. You wrote that report, didn’t you? A: Yes.

111

The Nine Basic Principles Q: You did not write a report on Thieves, Inc. before this report, did you? A: I don’t know. 10.46 Perhaps that, too, is an honest answer but it seems more likely that Jones is working

on establishing the vagueness of his memory. The examiner probably does not need to push for an admission that the 2005 report is the first one. Indeed, the question was probably asked just to see what Jones would do, and the answer probably showed that he was going to continue to be evasive. So the examiner can leave that non-answer, which could of course be an honest answer, and go on, perhaps with these questions. Q: This 2005 report says that Thieves, Inc. would not be a good investment, doesn’t it? A: I don’t know.

10.47 More vagueness. How would he not know? So the examiner confronts him with the

report, and reads from it.

Q: Look at your conclusion on the first page. You say, and I quote, ‘only a moron would invest in Thieves, Inc. because it is a bunch of thieves’. You wrote that, didn’t you? A: If that’s what appears there that’s what I wrote. Q: No one told you to write that, did they? A: Not that I can recall. Q: You don’t have any doubt that no one told you what to write, do you? A: I don’t know. 10.48 Well, now the examiner knows that Jones is starting seriously to fence. How much

risk the examiner now takes depends on what the examiner thinks about how Jones prepared his reports and how much evidence there is that can be used relating to that subject. The examiner has the written witness statement of Jones’s secretary about how Jones prepared reports and what happened in connection with the preparation of the 2009 report. So the examiner is willing to risk asking something like this: Q: It’s the fact, isn’t it, Mr Jones, that you prepared all your reports in your own office at Bad Advisors? A: Yes. Q: And you instructed your secretary that no one was to disturb you while you were working on them, didn’t you? A: I don’t remember.

10.49 That answer is getting less credible, as a look at the arbitrators will probably show.

And his employer’s people are getting nervous, as a glance at them and their counsel will show. So perhaps now the examiner raises the temperature a little by asking something like this: Q: If your secretary were to testify that you gave her those instructions you wouldn’t say she was wrong, would you? A: I don’t care what she says.

112

Listen to the Answer Would the examiner want to push for an answer better than that? What would be 10.50 gained? So the examiner goes on, with the reports for 2006, 2007, and 2008. In each instance the examiner reads out the language and goes through the same litany about no one having told him to write what he did. Then the examiner comes to the 2009 report, and asks something like this:

10.51

Q: All right, Mr. Jones, now we have come to 2009. This is your report for 2009, isn’t it? A: Yes. Q: Look at your conclusion on the first page. It says, and I quote: ‘Thieves, Inc. is a superior investment suitable for widows and orphans.’ You wrote that, didn’t you, Mr Jones? A: If that’s what it says that’s what I wrote. Q: You had a conversation with the CEO of Bad Advisors before you wrote that, didn’t you? A: I don’t think so. Q: Isn’t it the fact that the CEO came to your office while you were working on this 2009 report? A: I don’t recall. Q: Your secretary told him you were not to be disturbed, didn’t she? A: I don’t know. Q: Didn’t she tell you that she had told him that? A: I don’t recall. Q: Didn’t the CEO tell you that she had refused to let him into your office? A: I don’t recall. Q: Didn’t the CEO also say he would fire her for being insubordinate? A: I don’t recall. Q: Didn’t the CEO shoulder your secretary out of the way and come into your office? A: I don’t recall.

Shouldn’t the examiner stop here? How could he not recall that? Haven’t the arbi- 10.52 trators grasped what is going on? What is the point of digging any deeper? We will return to this question in the next chapter. Now let us vary this imaginary case to make in a different way the point about 10.53 listening to the witness’s answers. Suppose that the cross-examination of Jones is interrupted by a recess after the examiner has asked about the 2008 report and before the examiner has come to the 2009 report. Suppose further that, during that recess, Jones begins to think about his relationship with Bad Advisors LLC and to feel angry about it. When the cross-examination resumes after the recess, the examiner starts by asking Jones the same question about the 2009 report as in the prior version: Q: All right, Mr Jones, now we have come to 2009. This is your report for 2009, isn’t it?

113

The Nine Basic Principles 10.54 As in the prior version, Jones answers:

A: Yes. 10.55 The examiner then asks the next question that was asked in the prior example:

Q: Look at your conclusion on the first page. It says, and I quote: ‘Thieves, Inc. is a superior investment suitable for widows and orphans.’ You wrote that, didn’t you, Mr Jones? 10.56 But now, instead of saying ‘If that’s what it says that’s what I wrote’, Jones says:

A: Yes, that’s what I wrote. 10.57 The examiner immediately realizes—or should immediately realize—that some-

thing has changed in Jones. Instead of the vagueness that Jones was putting forward in the answers to the previous reports of 2005 through 2008, Jones has suddenly answered this question about the 2009 report unambiguously, clearly, and responsively. The examiner does not know why Jones has changed, but the examiner ­realizes that the change in Jones means that the cross-examination must also change. So the examiner has to decide how to change it. The safest possibility, however, is probably to ask the same follow-up question as in the prior version: Q: You had a conversation with the CEO of Bad Advisors before you wrote that, didn’t you?

10.58 This time, instead of saying ‘I don’t think so’, Jones says:

A: Yes. 10.59 Now the examiner realizes that it may be possible to get the true story, since Jones

now seems to be willing to be forthcoming. So the examiner takes the risk of asking a so-called ‘journalist’ question: Q: What did the CEO say to you in that conversation?

10.60 And hits the jackpot.

A: He told me he had been paid $500,000 to have me write a favourable report and that I should say that Thieves, Inc. was a superior investment suitable for widows and orphans. He added that he would give me $100,000 extra if I did that. 10.61 Should the examiner leave it there? Would it make sense to ask Jones whether he was

in fact paid the $100,000? Is there a risk in going further? Is there a risk in not going further? We return to those questions in the next chapter.

114

11 BASIC PR INCIPLE NO. 6: DO NOT ASK FOR CONCLUSIONS

A. Stick to the Facts 11.01 B. The Consequences of Not Sticking to the Facts 11.06 C. Explicit Requests for Agreement 11.09

D. Indirect Requests for Agreement 11.18 E. Avoid ‘One Question Too Many’ 11.20 F. When to Stop 11.49

A.  Stick to the Facts You must not ask the witness to agree with the inferences you contend should be 11.01 drawn, or the conclusions you contend should be reached, from the facts the witness has admitted. That is true even though you will want the arbitrators to draw those inferences or reach those conclusions in resolving the dispute. Your purpose in cross-examination is to elicit facts, not to seek agreement with the inferences or conclusions you contend those facts support. Similarly, you must not make comments to the arbitrators during the 11.02 cross-examination. Cross-examination is an interaction between you and the witness. The arbitrators will be, or at least should be, paying close attention to the questions and answers, and to your non-verbal signals as well as those of the witness. You must let the arbitrators figure out for themselves what is going on during the cross-examination. Just stick to the facts. Cross-examination is simply not the place for argument. Your purpose in 11.03 cross-examination is to diminish the adverse impact of the witness’s testimony on your client’s case. You do that by obtaining the witness’s admissions or denials of the facts you present to the witness in your short, simple, unambiguous leading questions. Arguments about inferences and conclusions are to be left to the closing argument phase of the proceeding.

115

The Nine Basic Principles 11.04 In your closing argument, which may be oral or written or both, you will argue

to the arbitrators that the facts established during the proceeding, including but not limited to the facts elicited during your cross-examination of witnesses, should lead the arbitrators to draw the inferences and reach the conclusions that you want. Your arguments will be most effective if you help the arbitrators draw those inferences and reach those conclusions themselves. It is desirable, if at all possible, for you to be perceived as trying to help the arbitrators and for you to avoid lecturing the arbitrators as though they were a group of students. People are always more satisfied with, and more wedded to, things they feel they have figured out for themselves than they are about things that have been force-fed to them.

11.05 As with most rules, this rule is subject to exceptions. There will be times when

it will be of benefit to your client’s case to ask the witness to agree with an ­i nference or a conclusion you will want to argue to the arbitrators in the closing argument phase of the proceeding. There will be times when you will need to speak to the arbitrators during a cross-examination, for instance to ask them to direct a witness to answer a question, or to seek their help as a result of something your adversary has done. But those are most definitely exceptions, things that are out of the ordinary and done rarely. Mostly you will simply put q­ uestions about facts to the witness and do your best to get the witness to answer them.

B.  The Consequences of Not Sticking to the Facts 11.06 If you do not stick to the facts but instead ask the witness to agree with an inference

or a conclusion, you invite the witness to say whatever the witness wants to say. There are all sorts of things the witness may say in response to that invitation. Most if not all of them will be hurtful to your client’s case. They will almost always reduce the beneficial impact of what the witness admitted just before you asked the witness to agree with you about something.

11.07 The witness may simply reject the inference or conclusion explicitly, saying

only something like ‘No, I don’t agree with that’. That, of course, is not helpful to what you are trying to achieve. But the witness may—and more likely will—choose to expand on that rejection and provide an explanation for the disagreement. You don’t want the witness to do that. The witness may even expand on the facts apparently admitted, and explain why some of what seems admitted was actually not admitted. A truly creative witness may find further ways to be hurtful.

11.08 None of this is good for your client’s case. All of it should be avoided.

116

Do Not Ask for Conclusions

C.  Explicit Requests for Agreement Some questions explicitly ask the witness to agree with inferences or conclusions. 11.09 These are questions like: ‘What you have said means. . . ., doesn’t it?’ Or simpler forms of the same thing, such as ‘And that means. . . ., doesn’t it?’ Or variants like: ‘So what you are saying is. . . .’ These requests that the witness agree with an inference or conclusion are different 11.10 from the fact questions that begin with something like ‘You would agree with me, wouldn’t you, that . . .’ Questions in that form are often useful when you are trying to establish common factual ground with the witness. So, to pick a perhaps silly example, you might ask the witness: ‘You would agree with me, wouldn’t you, that there are 24 hours in a day?’ Fact questions of that type do not create any particular risk. But such fact questions are not what we are concerned with here. We are concerned 11.11 with questions of the kind indicated in the first paragraph of this section and, while it may seem easy to avoid these kinds of questions, there is often an almost overwhelming temptation to ask them. You may be conscious of that temptation, in which case it is relatively easy to resist it. But you may also not be conscious of that temptation, which makes it all the more dangerous. You may experience feelings of triumph, or of relief, or of both, when a witness has 11.12 admitted a series of facts. Such feelings often arise when you were uncertain about what the witness would admit, which will often be the case. You may be tempted to ask the witness to agree with an inference or a conclusion when what the witness has admitted is particularly important to your client’s case and you plan to make a major argument to the arbitrators based on what the witness has just admitted. And you may be tempted to ask the witness to agree with an inference or a conclusion when you think that no other inference or conclusion can be drawn from the admitted facts. You may be tempted in many other circumstances. You must resist the temptation except in the rare instance where asking the witness to agree with the conclusion is more likely than not to help your client’s case. You may also feel that temptation even when the witness has been entirely willing 11.13 to admit the facts requested. This point can be illustrated by what can happen when you question a witness about a document. Witnesses may readily admit that they wrote the documents involved, signed them, 11.14 had read them before signing them, and understood and agreed with their contents. But a witness may nonetheless not agree with you as to what a document means. It is almost always unwise to ask the witness to agree with what you will later argue to the arbitrators about the meaning of the document.

117

The Nine Basic Principles 11.15 The risk is not just that the witness may say something you don’t want to hear. In

addition, the arbitrators will often understand the point you are trying to make without the need for you to ask the witness to agree with that point. A question ­asking the witness to agree with the point may thus tend to take away from the arbitrators the desirable feeling that they have figured it out for themselves. It may also risk alienating them if they feel that the question is wasting their time. And those risks are in addition to the possibility that the witness may say something that you don’t want to hear, and that you don’t want the arbitrators to hear.

11.16 Of course, in the case just described, the witness’s refusal to agree about what the

document means may be so preposterous that it undermines the witness’s credibility. In that situation the request for agreement may well do no harm and may even do some good. Again, however, the arbitrators may want to feel that they figured things out for themselves.

11.17 It is also true that some lawyers seem able to use explicit requests for agreement very

effectively and can thus get away with using them with some regularity. But for most lawyers, and in most situations, it is almost always better not to ask the witness to agree with an inference or conclusion.

D.  Indirect Requests for Agreement 11.18 What is true for explicit requests for agreement is equally true for questions which

indirectly ask the witness to agree with an inference or a conclusion. Such indirect requests generally come from our use of language as it is ordinarily spoken. Our ordinary language often contains conclusory or judgemental statements. We often say things like ‘it took a long time’ or ‘that was reasonable’. Questions that contain such statements are just as unwise and inappropriate as those which explicitly ask the witness to agree with an inference or a conclusion.

11.19 But questions that use the conclusory or judgemental statements of ordinary l­ anguage,

adjectives and other qualifiers, are more difficult to avoid because of the way we commonly speak. It is all too easy to ask if something ‘took a long time’ or was ‘reasonable’ or ‘expected’ or ‘justified’. Formulations of that sort can lead to serious difficulties. As a result, you need to be extremely careful not to use questions that indirectly ask a witness to agree with an inference or a conclusion. You need to be consciously aware of the risk so that you do not unconsciously ask a question that creates it.

E.  Avoid ‘One Question Too Many’ 11.20 Asking the witness to agree with a contention as to an inference or conclusion is

an example of the so-called ‘one question too many’. The concept ‘one question

118

Do Not Ask for Conclusions too many’ means a question that need not have been asked and that, when asked, enables the witness to diminish or even destroy the impact of the admissions made in response to the questions that preceded it. Such unnecessary questions are to be avoided. Consider the questions at the end of the hypothetical case discussed at the end of 11.21 the previous chapter. In the first version of that hypothetical case, these were the questions with which the 11.22 examiner ended the examination of Jones: Q: Didn’t the CEO tell you that she had refused to let him into your office? A: I don’t recall. Q: Didn’t the CEO also say he would fire her for being insubordinate? A: I don’t recall. Q: Didn’t the CEO shoulder your secretary out of the way and come into your office? A: I don’t recall.

In our hypothetical case the examiner stopped there, which made sense. There was 11.23 no way Jones could have forgotten that the CEO had shouldered the secretary out of the way, so his saying that he did not recall that event was not credible and undermined his credibility. But suppose the examiner had decided to dig deeper and had asked this question: Q: Your secretary was fired in July 2009, wasn’t she?

And had received this answer:

11.24

A: She left the company then. I don’t know if she was fired.

The answer Jones gives to this question tends to dull the impact of the previous 11.25 incredible answer that he does not recall whether the secretary was shouldered out of the way. Because Jones’s previous answer undermined his credibility, the examiner didn’t really need this further question. It is an example of ‘one question too many’. The same issue can be raised about the alternate version of the hypothetical case. In 11.26 that alternate version of the case, the final questions are: Q: You had a conversation with the CEO of Bad Advisors before you wrote that, didn’t you? A: Yes. Q: What did the CEO say to you in that conversation? A: He told me he had been paid $500,000 to have me write a favourable report and that I should say that Thieves, Inc. was a superior investment suitable for widows and orphans. He added that he would give me $100,000 extra if I did that.

119

The Nine Basic Principles 11.27 Should the examiner leave it there? Would it make sense to ask Jones whether he was

in fact paid the $100,000? Is there a risk in going further?

11.28 Suppose the examiner did ask that question:

Q: Did he pay you that $100,000? A: No, and I was thinking about that during the recess and got angry and so I decided I would stop fencing with you and would tell you the whole story. 11.29 That answer may tend to undermine Jones’s credibility because it shows that he may

well be prejudiced against the CEO and against Bad Advisors. But how likely is it that he made up the story of the $500,000 and $100,000?

11.30 If the examiner does not ask this question, however, it may well be asked on re-direct

and the argument would then be made that Jones has made the whole thing up. Perhaps, therefore, it is worth asking the question during the cross-examination in an attempt to do what is possible to undercut that argument by bringing the fact out before the adversary does. The decision whether or not to ask the question is not an easy one, and the examiner needs to make it on the spur of the moment.

11.31 That leads to a famous example, but actually a misleading one, of what is some-

times claimed to have been ‘one question too many’.1 The witness testified on direct examination that the defendant bit the claimant’s ear off during a fight.

11.32 The cross-examiner, representing the defendant, asks:

Q: Did you see him bite the ear off? A: No. Q: Then how can you say that he bit the ear off? A: I saw him spit it out. 11.33 The claim, of course, is that the second question is ‘one question too many’. The

theory is that if the examiner had not asked that question the witness’s lack of actual knowledge would have been demonstrated because he admitted he did not see the defendant bite off the ear. That lack of actual knowledge, it is claimed, would have discredited the witness’s testimony.

11.34 But that theory is incorrect—almost naïve, one might say. In the first place, a com-

petent direct examination would have asked that second question so as to forestall its being asked on cross-examination. Even if the second question had not been asked on the direct examination, and the cross-examiner had not asked it on the cross-examination but had left the cross-examination with the witness’s statement that the witness had not actually seen the ear bitten off, the question would have

1  This brief example has circulated among lawyers for many years. We don’t know where it originated.

120

Do Not Ask for Conclusions been asked, with equal or greater effect, on the re-direct examination of the witness that would have followed: Q: You testified on cross-examination that you did not see him bite the ear off, didn’t you? A: Yes. Q: Then how can you say that he bit the ear off? A: I saw him spit it out.

The example thus does not demonstrate ‘one question too many’, since the fact of 11.35 the ear having been bitten off would have been brought before the fact finder in any event. What it demonstrates is that it was unwise for the examiner to try to disprove that fact by asking the witness questions about what the witness saw. Since the witness was prepared to give clear and persuasive eye-witness evidence 11.36 that the defendant had bitten the ear off, a more sensible approach would have been to attack the credibility of the witness on some ground other than what the witness claimed to have seen. For example, the examiner could have tried to demonstrate that the witness was prejudiced against the defendant and thus was making up things that had not occurred. The examiner could have done that by asking ­questions intended to attack the witness’s credibility so as to demonstrate that prejudice—provided, of course, that the examiner had a good-faith basis to ask such questions. That is the same thing as in the version of Jones’s cross-examination in which he admits being angry at the CEO and Bad Advisors because he was not paid the $100,000 he had been promised. A famous example of how a witness’s story can be attacked on the basis that the 11.37 witness could not have seen what he claimed to have seen, and thus was not credible, involves Abraham Lincoln, who was a brilliant trial lawyer before he became President of the United States. There seems not to be any extant transcript of Lincoln’s cross-examination in the case, but there are many versions that present more or less the same story. The version in paragraphs 11.39–11.42 was found on the internet.2 In this case, Lincoln demonstrated both that the witness could not see what the 11.38 ­witness claimed to have seen and that as a result the witness was lying. Lincoln was defending a man accused of murdering another man during a fight. 11.39 The prosecution called a witness to prove that the defendant had in fact committed the murder. Lincoln conducted the following cross-examination: Q: Did you actually see the fight? A: Yes.

2

  See .

121

The Nine Basic Principles Q: And you stood very near to them? A: No, it was one-hundred fifty feet or more. Q: In the open field? A: No, in the timber. Q: What kind of timber? A: Beech timber. Q: Leaves on it are rather thick in August? A: It looks like it. Q: What time did all this take place? A: Eleven o’clock at night. Q: Did you have a candle there? A: No, what would I want a candle for? 11.40 Notice what Lincoln does with this question from the witness. See Chapter 13

about questions from the witness.

Q: How could you see from a distance of one-hundred fifty feet or more, without a ­candle, at eleven o’clock at night? A: The moon was shining real bright. Q: Full moon? A: Yes, a full moon. 11.41 Lincoln has given the witness an opportunity to lie here, and the witness does so, as

the following will demonstrate.

11.42 Having received this answer, Lincoln placed before the witness an almanac that

showed the status of the moon on the night in question, and then continued:

Q: Does not the almanac say that on August 29th the moon was barely past the first quarter instead of being full? A: (No audible answer from the witness) Q: Does not the almanac also say that the moon had disappeared by eleven o’clock? A: (No audible answer from the witness) Q: Is it not a fact that it was too dark to see anything from so far away, let alone one­hundred fifty feet? A: (No audible answer from the witness) 11.43 Notice that Lincoln here does not stick to the facts but instead asks the witness

to agree with the conclusion Lincoln wants the trial jury to reach. There are other examples of this working well, but they are not common.

11.44 The point of these examples is that you need to decide how to attack the witness.

If, like the witness in Lincoln’s case, the witness who claimed to have seen the defendant spit out the ear could have been shown to have been unable to see what happened, his credibility would have been destroyed. If a witness can be shown to 122

Do Not Ask for Conclusions hate the person against whom the testimony is given, perhaps a fact finder can be persuaded not to believe the testimony. Here is a different kind of what may have been, or perhaps was actually not, ‘one 11.45 question too many’, taken from a criminal case tried in a New York court.3 The witness, an undercover narcotics agent, testified that he had found several hundred pounds of mannite in the defendant’s car when the defendant was arrested in Harlem in New York City. The witness further testified that mannite is used to dilute pure heroin before it is sold on the street. There was no way for the defence to disprove that the mannite had been found in 11.46 the defendant’s car. The defence lawyer chose (perhaps unwisely but perhaps very cleverly) to cross-examine and the following exchange took place: Q: Would it surprise you if I told you that mannite is used as a laxative for cows? A: Yes, it would surprise me very much.

The courtroom erupted in laughter and the prosecutor had to resist the temptation 11.47 to ask ‘When you were conducting surveillance in Harlem did you see any cows?’ because of concern that such a question would have made the trial into even more of a circus. But for our purposes here, was the defence lawyer’s question a good one? Was it ‘one 11.48 question too many’ or was its real, and very clever, purpose to create a circus atmosphere and try to make the prosecution look silly? Would it have been better to ask whether the witness knew that mannite can also be used as a dietary supplement? Should the lawyer have simply not asked any question at all?

F.  When to Stop Avoiding ‘one question too many’ is a subcategory of the larger and utterly vital 11.49 principle that you should end any cross-examination at an appropriate time and not continue it beyond that time. Ideally you should end your cross-examination when you have scored a significant 11.50 ‘hit’ on the witness. As noted earlier in this book, you will have planned where you would like to end, you will have prepared a final question or questions relating to a final issue, and your plan is for that end to be that kind of ‘hit’. But things often

3  United States v. Owens and Sizemore, United States District Court, Southern District of New York, 1975. The indictment, 72 Cr. 1159, United States v. Sisca, et al., charged a large number of defendants with the sale of narcotics. Owens and Sizemore were fugitives at the time of the first trial in 1973—see United States v. Sisca, 361 F. Supp. 735 at n.1 (S.D.N.Y. 1973), affirmed, 503 F.2d 1337 (2d Cir.974), cert. denied—and they were tried separately in 1975 after they had been apprehended. The quoted language is taken from a lawyer’s memory.

123

The Nine Basic Principles don’t work out as you plan for them to, and so you will have to be open to ending your cross-examination the first time it feels right to end it. 11.51 Figuring out when it feels right to end a cross-examination can be very challenging.

Very many cross-examinations have been prolonged far beyond the point where the examiner should have stopped, almost invariably to the disadvantage of the examiner’s client. The basic rule has been expressed in this way in many different places: When you have struck oil, quit boring.

11.52 Here is an example from yet another New York criminal case.4 11.53 The witness, testifying in his own defence, said that his image appeared on a secu-

rity video because he was trying to mediate a dispute between a bank clerk who was sitting at a desk and a woman standing there and arguing with him. The following cross-examination took place: Q: What did the woman look like? A: Just a woman. Q: How tall was she? A: The usual height for women.

11.54 At which point the cross-examiner said ‘No further questions’ and sat down. It was

clear that the witness was simply making up a story and nothing more that might be asked would demonstrate that fact with any greater clarity.

11.55 Keeping the examination within reasonable limits of time is particularly impor-

tant in international arbitrations. That is in part because the arbitrators have (or at least should have, given the written submissions they received before the hearing) thorough knowledge of the case. It is also because the arbitrators will almost certainly want the case to move as rapidly as possible, and certainly within the framework of the time plan agreed upon between the parties and the arbitrators.

11.56 Deciding when to stop depends in the first instance on what you wanted to

accomplish with the cross-examination. You will have decided, in preparing the cross-examination, the main points you wanted to make—three at most, preferably only one. If those points have been made, stop.

11.57 But if even one of those points has been made, and if it has had (or you think from

watching them that it has had) adequate impact on the arbitrators, stop there even though the other points have not been made. You have succeeded in accomplishing 4  The quoted material is taken from a lawyer’s memory of a case tried in the United States District Court, Southern District of New York, in 1975. The defendant was convicted and did not appeal, so there is no reported decision in the case and the testimony was almost certainly not transcribed. The lawyer no longer remembers the name of the defendant.

124

Do Not Ask for Conclusions a significant part of what you wanted to accomplish. You cannot be sure that further questions will meet with equal success. The same is true if you unexpectedly score a particularly powerful ‘hit’ on the 11.58 ­witness, even if it is not one of the three points you had planned. If that happens, stop there. If you continue, things will almost certainly go downhill from where that ‘hit’ was made. The risk in prolonging a cross-examination beyond where it should have been 11.59 stopped, moreover, is not only that the witness may be rehabilitated or reduce the effectiveness of what you have accomplished. There is the further real risk of irritating the arbitrators, which of course is something to be avoided if at all possible.

125

12 BASIC PR INCIPLE NO. 7: DO NOT LET THE W ITNESS R EPE AT THE DIR ECT TESTIMONY

A. The Nature of the Risk B. Avoiding Repetition of Direct Testimony C. Dealing with a Repetition D. Inconsistent Statements by the Witness E. The Nature of the Inconsistency 1. What the inconsistency relates to

12.01 12.06 12.09 12.17 12.23 12.25

2. Evading or explaining the inconsistency

F. Use of Inconsistent Statements— In General G. Use of Inconsistent Statements— the Resistant Witness H. Other Intended Repetitions

12.30 12.34 12.54 12.63

A.  The Nature of the Risk 12.01 You must not permit the witness to repeat any part of the direct testimony,

except in those instances where you deem it advantageous to your client to have the witness repeat something under your careful control. That is particularly true of things in the direct testimony which are seriously hurtful to your client’s case. Of course, if the direct testimony was not seriously hurtful, you will probably have decided not to cross-examine at all and this principle will not come into play.

12.02 Any witness you cross-examine is likely to be adverse to the interests of your client,

to be non-neutral. Rather than stating the facts without bias or prejudice, such an adverse witness will often be inclined to testify in ways that are intended to hurt your client’s case. Such a witness may leave out facts, employ misleading emphasis, or use various other devices in an effort to favour the party that called the witness. One such device is to repeat parts of the direct testimony that are especially hurtful to your client’s case.

126

Do Not Let the Witness Repeat the Direct Testimony Some witnesses are more than merely adverse, they are truly hostile towards your 12.03 client. They may be hostile because of something in their relationship with that ­client, or for any number of other reasons. Like any adverse witness, a witness who is affirmatively hostile will often want to repeat things from the direct testimony that are hurtful to your client’s case. But such a witness may sometimes want, in addition, to hurt your client—and not 12.04 just your client’s case—as badly as possible. Such a truly hostile witness may then seek out as many opportunities as possible in which to inflict harm. The result may then be that the truly hostile witness will try to add in things that are even more hurtful than the direct testimony was. And that may be so even when there is no personal hostility between the witness and your client as a person. Clearly you do not want to permit either kind of adverse witness—the ordi- 12.05 nary adverse kind or the truly hostile kind—to do more damage during the cross-examination than was done during the direct examination. Keeping the ­witness from repeating any part of the direct testimony is an important part of achieving that goal. Sometimes, the best solution may be not to cross-examine such a witness at all.

B.  Avoiding Repetition of Direct Testimony If you decide to cross-examine because of the hurtful things in the direct testimony, 12.06 you will not want the arbitrators to hear those things again from the witness. That is true notwithstanding that those things are there to be read in the witness’s written witness statement, or in a transcript in the rare case where the direct testimony was given orally. Reading things from the cold page typically has far less impact on the arbitrators than hearing them spoken out loud by a witness who appears before them. That is even more so when the witness says those things in response to a cross-examiner’s question. If, as may often happen, you want the arbitrators to focus on some specific things 12.07 in the direct testimony, the witness should not be permitted to repeat those things. Instead, if there is a written witness statement or a transcript of oral testimony you will read them out loud yourself. If there is no writing to which reference can be made, you will state them from memory. Using short, simple, unambiguous leading questions limited to a single, simple 12.08 fact will call for simple answers and will tend to limit the witness’s ability to repeat things from the direct testimony. But you cannot completely control what the witness does. Despite your best efforts a witness may respond, even to a question of that type, by repeating something hurtful.

127

The Nine Basic Principles

C.  Dealing with a Repetition 12.09 A repetition of something hurtful says something about the witness’s bias or preju-

dice and tends to undermine the witness’s credibility. It would be unwise, however, for you to confront the witness about that during the cross-examination. Doing so risks drawing you into an argument or some other conversation with the witness that you cannot control and that should therefore be avoided. It also risks emphasizing the hurtful material and increasing its adverse impact.

12.10 Making the argument about credibility to the arbitrators in the closing argument

phase of the proceeding would avoid the first of the risks mentioned in the preceding paragraph, but not the second one. So you will hope that the arbitrators will see for themselves, without external help, that the repetition bears on the witness’s credibility.

12.11 As a general proposition, the best course is to ignore the repetition and continue with

the existing line of inquiry. That will be particularly appropriate if, as will quite likely have been the case, that line of inquiry had been directed towards c­ ontradicting or undermining the content of the testimony that the witness repeated. Although you may want simply to continue that line of inquiry, it may be wise when doing so to modify the questions, and even the direction in which they are headed, so as to try to blunt the repetition.

12.12 There may be cases where your client’s case can be advanced by directly confronting

the witness on the facts contained in the repetition, though such a confrontation always carries the risk of your being drawn into an argument or other uncontrolled conversation with the witness. It is also said that sometimes counsel have been able to pretend that the content of the repetition helped rather than hurt the client’s case. That would seem to be a very difficult thing to do successfully. Failure in t­rying to do it could clearly be extremely damaging. It is consistent with a great deal of thinking on the subject, and with the greater part of experience, that ignoring the repetition is usually the best way to deal with it.

12.13 Simply ignoring the repetition, however, is not enough. How you ignore it matters.

Ideally, you will manage to let the repetition pass in such a way that an observer— that is, the arbitrators—will not sense that you feel that the repetition was hurtful to your client’s case. Similarly, it is important that the witness not realize that you have been hurt. You don’t want the witness to feel the triumph of the hunter who has wounded a prey and now moves in for the kill.

12.14 You will thus want to avoid an awkward pause, or body language that shows ­concern

or anxiety, or any use of the voice that exhibits malaise. Any of these things can override any benefit that may derive from ignoring the repetition.

128

Do Not Let the Witness Repeat the Direct Testimony You will also want to be especially careful in asking the questions that follow the 12.15 repetition. It is important that none of those questions is asked in a way that the arbitrators may perceive as hostile or defensive, or that gives the witness the impression that you are feeling vulnerable. Questions asked in those ways can have a s­ imilarly disadvantageous effect on your client’s case. It is thus crucial, if ignoring the repetition is to have the desired effect, that you ask 12.16 questions in ways that do not disclose emotional or psychological discomfort and that your voice and body language are well controlled.

D.  Inconsistent Statements by the Witness One of the circumstances—probably the most common—in which you will in fact 12.17 want to have part of the direct testimony repeated arises when the witness’s testimony is inconsistent with some other statement by the witness made prior to the main hearing at which the witness is to be cross-examined. Such a ‘prior inconsistent statement’ could be a writing, such as a letter or a memorandum by the witness, or perhaps even an oral statement the witness made to someone whom you can call as a witness. Such a prior inconsistent statement can be one of your most potent weapons, 12.18 ­particularly if the witness does not know that you have it and so may not be prepared to deal with it. Properly used, a prior inconsistent statement may have a devastating effect on the witness, on the witness’s credibility, and on the weight the arbitrators give to the witness’s testimony. In an international arbitration, however, it is not terribly likely that you will be able 12.19 to surprise a witness with a prior inconsistent statement. If the testimony is given by means of a written witness statement, which will usually be the case, counsel in preparing that statement will have made a careful effort to take into account everything the witness has said prior to its preparation. Even if the direct testimony is to be given orally, counsel in preparing the witness to testify will have made a similar careful effort. Any prior inconsistent statement is thus likely to have been made after the prepara- 12.20 tion of the written witness statement or counsel’s preparation of the witness who will testify orally. If the statement was made in writing, the great likelihood is that it was submitted to the arbitrators, and exchanged between counsel, prior to the main hearing. Thus counsel will have had an opportunity to review it with the witness before the witness testifies and to help the witness find a way to deal with it. But of course counsel may not have done this, or the witness may not remember 12.21 what counsel did, and so the fact that the prior inconsistent statement was available

129

The Nine Basic Principles to the witness prior to the hearing does not necessarily mean that the witness is really prepared to deal with it. Even if the likelihood of surprise is less in an ­international arbitration than it would be in some other environment, therefore, the possibility remains of using a prior inconsistent statement that will surprise the witness. 12.22 Not all inconsistent statements are appropriate for use, however, and you must be

very careful in deciding whether or not to use any particular inconsistent statement. You must be sure that the inconsistent statement that is used is in fact suitable for advancing your client’s case.

E.  The Nature of the Inconsistency 12.23 An inconsistency must have two characteristics if it is to make sense to use it on

cross-examination. First, it must relate to a matter that makes a real difference to the issues that the arbitrators are to decide. Second, it must be a real inconsistency that the witness cannot evade or explain away.

12.24 The use of an inconsistent statement about an insignificant matter, or one where the

inconsistency can be evaded or explained away, may well weaken the overall effect of a cross-examination. In addition, the chances are great that the use of such an inconsistency will irritate the arbitrators, which is of course to be avoided. 1.  What the inconsistency relates to

12.25 Some inconsistent statements, perhaps many of them, simply do not matter. But

some matter very much.

12.26 Here is an example. 12.27 The witness testifies that a very large entry in a company’s financial records is

a­ ccurate. In addition, that witness is the only person still alive who has knowledge relating to that entry. The accuracy of the entry, in turn, is crucial to the case of the party adverse to your client, and the witness was called by that adverse party. You have a letter that the witness wrote and signed that explains in irresistible detail why the entry is fraudulent, and that letter will destroy the case of the adverse party.

12.28 That kind of inconsistency is obviously likely to be useful. But even that kind of

inconsistency has risks. The witness may try to evade it or explain it away. The witness may say that facts learned since writing the letter undermine what the letter says. The witness may say that the letter was written when the witness was confused by medication that had disoriented the witness’s mind. The witness may claim that the letter is a forgery, or was a joke. And on and on.

12.29 But at least this is the kind of inconsistency that one could imagine using. It relates

to an issue central to the case, and it will be difficult for the witness to find a credible 130

Do Not Let the Witness Repeat the Direct Testimony way to evade it or to explain it away. The evasions and explanations suggested in the previous paragraph are not very likely to be credible, and you should have been prepared to deal with them by learning about how and why the letter was prepared and as much about the witness as possible. 2.  Evading or explaining the inconsistency The example just given is one in which the witness would not find it easy to evade 12.30 or explain away the inconsistency, though perhaps a clever witness could succeed in doing so. But at least that inconsistency could be said to be an inconsistency of 180 degrees. 12.31 Either the entry was accurate or it was not—there is no middle ground to which the witness can retreat as to a refuge. Even a claim that the entry was inadvertently inaccurate will not defeat your use of the devastating letter proving that it was fraudulent. But not all inconsistencies are 180-degree inconsistencies. Many inconsistencies 12.32 are much less dramatic: they could be said to be 90-degree inconsistencies, or even 45-degree or 10-degree inconsistencies. The smaller the difference between the testimony and the inconsistent statement, the easier it will usually be for the witness to evade or explain away the inconsistency. So you will want to have an inconsistency as close to 180 degrees as possible, an incon- 12.33 sistency with no middle ground, or anyway very little middle ground—an inconsistency like testimony that the traffic light was green as compared with an inconsistent statement that it was red.

F.  Use of Inconsistent Statements—In General Any inconsistent statement that is appropriate for use can be used for either or both 12.34 of two purposes. One of the purposes is to attack the witness’s credibility on the ground that the wit- 12.35 ness has told inconsistent versions of the same events. That is what the inconsistent statements about signing the contract were used for in Chapter 6, section G. An attack on the witness’s credibility can, at least in theory, be limited to the specifics 12.36 of the inconsistency between the two statements. In that event, you will argue that the witness is simply not to be believed about the subject matter of the inconsistency, but is otherwise truthful. Trying to get the arbitrators to disbelieve only a part of the witness’s testimony can be difficult, however, since people tend either to believe or to disbelieve all of a witness’s testimony. Put differently, people tend to believe that a witness is either to be believed in everything or to be believed in nothing. 131

The Nine Basic Principles 12.37 The tendency just mentioned means that the inconsistency can be used—and

­ sually will be used—to make a broader attack on the witness and to maintain that u nothing the witness says is to be believed. Obviously that attack has a greater chance of success if you can catch the witness in more than one inconsistency. The more inconsistencies you can find and use, the greater the likelihood that you will destroy the credibility of the witness.

12.38 The other purpose in the use of inconsistent statements is to prove that the content

of the inconsistent statement, and not that of the direct testimony, should be taken to be the truth. Obviously you will use the inconsistent statement for this purpose only if you think it is more truthful than the direct testimony.

12.39 For either purpose, you will need to contrast the content of the inconsistent statement

with the content of the witness’s direct testimony. To do that, the content of the direct testimony must first be unambiguously established. It is essential that the witness be tied irrevocably to what the witness actually said in the direct testimony, so that the witness cannot, when confronted with the inconsistent statement, deviate from the actual content of the direct testimony in an attempt to evade the inconsistency.

12.40 So you will start by reading out loud (or if there is no written witness statement

or transcript then reciting from memory) the pertinent part of the witness’s direct testimony. Your questions could look something like this:

Q: In your witness statement, Mr Witness, you said (that is page x, line y): [You read the pertinent part of the direct testimony.] That is what you said in your witness statement, isn’t it? A: Yes. Q: You don’t have any doubt that you in fact said what I have just read to you, do you? A: No. Q: And you are telling this tribunal that what you said, as I have just read it to you, is the truth, right? A: Yes. 12.41 Notice that these questions are intended to tie the witness to what the witness said

in the witness statement. It would be proper to indicate where in the witness statement the material being referred to appears. If the direct testimony were given orally and if there is a transcript, it would be customary to specify precisely where in the transcript the material that will be read appears.

12.42 Depending on how you experience the witness’s state of mind, and the atmosphere

in the hearing room (including your sense of the arbitrators), you may want to continue with questions like the following:

Q: You don’t have any doubt that the statement I have just read to you is the truth, do you? A: No.

132

Do Not Let the Witness Repeat the Direct Testimony Q: There is nothing in that statement you would want to change, is there? A: No. Q: And you had affirmed when you made that statement that you would tell the truth, didn’t you? A: Yes.

Often the point about affirming to tell the truth will be made earlier, and with more 12.43 extensive questions. In any event, having committed the witness to the content of what the witness said, and to its being truthful, the examiner will proceed to produce the inconsistent statement, perhaps with questions like these: Q: Let me show a document that has been marked as Exhibit 621. Do you see that? A: Yes. Q: That is a letter you wrote, isn’t it? A: Yes.

Of course the witness could ‘fence’ here, saying something like ‘I am not sure’, but 12.44 let us assume the witness will not do that. Q: That is your signature at the bottom of the letter, isn’t it? A: Yes.

Again, the witness could ‘fence’, saying something like ‘Well, it could be but I am 12.45 not sure’. Let us again assume the witness will not do that, but if you are careful you will probably have further proof that the witness in fact wrote the letter and will be prepared to use that proof if necessary. Q: You read that letter before you signed it, didn’t you? A: Yes.

That could be a dangerous question, but again you ought to know and be able to 12.46 prove that the witness signed the letter. Q: Let me read to you a part of what you wrote:

You read the material that is inconsistent with the witness statement.

12.47

Q: You wrote that, didn’t you? A: Yes.

If the document containing the inconsistent statement had been sworn to, the 12.48 examiner would bring out that fact and the fact that the witness had been sworn to tell the truth in that document. Q: What you say in the letter is different from what you say in your witness statement here, isn’t it? A: I don’t understand your question.

133

The Nine Basic Principles 12.49 This question actually asks the witness to agree with the conclusion that the two

statements are ‘different’. If possible the examiner will simply bring out the inconsistency with appropriate questions without first asking the witness to agree with that conclusion.

12.50 The inconsistency is now squarely before the arbitrators. What you do next depends

on the circumstances. You will want to contrast the witness statement with the inconsistent statement, using as many questions as needed to make the inconsistency irresistible. In that contrasting process, you will want to point out the specific factual inconsistencies individually.

12.51 You could, if appropriate, ask ‘Which of those statements is the truth?’ Or ‘Which

of those statements should this tribunal accept as the truth?’ Or other similar questions.

12.52 But you will want to avoid words like ‘lie’ or ‘liar’, which are ‘fighting words’ and

may provoke a fight. You will never want to ask the American TV question: ‘Were you lying then or are you lying now?’ Nor will you normally want to ask why the witness has made the two inconsistent statements.

12.53 We have provided an example of a cross-examination using an inconsistent state-

ment (Chapter 7, section B).

G.  Use of Inconsistent Statements—the Resistant Witness 12.54 In the example just given, we have assumed that the witness will cooperate with

you. We have thus assumed that the witness will agree that the witness statement contains what you say it does. We have also assumed that the witness will agree that the inconsistent statement contains what you say it does, and that the witness made that statement. But the witness may not always be so cooperative and it may be challenging to get those agreements from the witness.

12.55 That may particularly be so in an international arbitration. In that environment the

witness is almost certain to know that you have the inconsistent statement because, with the rarest of exceptions, that statement will have been included in the materials exchanged by counsel in the pre-hearing phase of the arbitration. Counsel who called the witness will almost certainly have reviewed the inconsistent statement with the witness and helped the witness decide what the witness wants to say about it when cross-examined. This is one of many situations in which the environment in an international arbitration is very different from the environment in a domestic court, at least a domestic Anglo-American court, where the witness may not know you have the inconsistent statement and the element of surprise may thus play a greater role.

134

Do Not Let the Witness Repeat the Direct Testimony If the witness knows that you have the inconsistent statement, the witness may have 12.56 tried to prepare for it by muddying the direct testimony, making that testimony less clearly inconsistent with the statement you have than the testimony otherwise might have been. And, as noted in paragraph 12.19, adversary counsel will surely have tried to deal with any prior inconsistent statement in the course of preparing a written witness statement. The witness may dispute that the direct testimony contains what you claim it does, 12.57 though that is not likely to happen if there is a written witness statement or a transcript. The witness may concede that the direct testimony, however it was presented, contains what you claim it does but then try to put some ‘spin’ on the words in an attempt to change their meaning. Or the witness, while agreeing that you have accurately repeated the direct testimony, may simply disavow its correctness in whole or in part so as to reduce the extent of the inconsistency. You will have wanted to think through what the implications of the witness’s doing that may be, and what you should do as a result. If there is a written witness statement signed, and perhaps even sworn to, by the 12.58 ­witness, manoeuvres like those just described will be difficult for a witness to accomplish. An attempt by a witness to disavow something in a written witness statement may provide you with an opportunity to demolish the entire statement, and thus the entire witness. But just because it is difficult does not mean the witness will not try to retreat from the direct testimony. If the witness does try to make that kind of retreat, you will have to decide what 12.59 to do. What you decide to do will depend in part on the purpose for which you intended to use the inconsistent statement. If your purpose was to show that the witness is not credible because of having told 12.60 two inconsistent versions of the same events, you will need to push the witness to agree that the recital of the direct testimony was accurate. You will need to ask more questions that will push the witness into a corner from which there is no escape. If the witness still refuses to accept the accuracy of the recital, you will at least have shown the arbitrators something about the witness that is useful to your client’s case. If, on the other hand, your purpose was solely to use the inconsistent statement to 12.61 prove the truth of its contents, demonstrating the inconsistency is somewhat less crucial. In that instance, it may be sufficient to accept confirmation simply that the witness’s direct testimony addressed the same subject as the inconsistent statement. Once the witness adequately accepts the accuracy of the direct testimony, you still 12.62 need to get the witness to acknowledge the genuineness of the inconsistent statement. That presents similar problems, to which can be added the possibility that, depending on the nature of the inconsistent statement, the witness may simply deny

135

The Nine Basic Principles having made that statement. What you will do if that happens is much the same as what you will do to get the witness to accept the recital of the relevant part of the direct testimony.

H.  Other Intended Repetitions 12.63 There can, of course, be other situations in which you will want to repeat some por-

tion of the direct testimony. That could happen, for example, if there is some point in that testimony which you particularly want to emphasize to the arbitrators.

12.64 A couple of examples will make the idea clear. Such a point could be one where the

disagreement between the parties that is dispositive of the dispute is especially clear from the testimony you want to bring to the arbitrators’ attention. Or such a point could be one where you have evidence to be emphasized later on that will demolish the adversary’s position and you want to establish the groundwork from which the arbitrators will be able to see the importance of that demolition when it later occurs. Other examples could be multiplied almost without end.

12.65 When you have one of these purposes in mind, you will proceed in the same way

as with an inconsistent statement. You will read the relevant part of the direct testimony to the witness and get the witness to agree that the witness so testified and that the testimony thus given is the truth.

136

13 BASIC PR INCIPLE NO. 8: DO NOT LET THE W ITNESS EX PL AIN

A. Maintaining Control B. ‘I can’t answer that yes or no’ 1. The cooperative witness 2. The recalcitrant witness

C. ‘I don’t understand the question’ D. ‘Let me explain that’

13.01 13.04 13.06 13.14 13.20 13.25

1. The witness’s speech 2. Your response a. Using the content of the speech b. Using simple questions c. The witness’s anxiety level d. What to avoid

E. ‘Let me ask you a question’

13.27 13.35 13.38 13.39 13.43 13.50 13.53

A.  Maintaining Control You must maintain control over the witness to the greatest extent you can. You 13.01 must therefore not let a witness explain anything, either about the answers to the questions put on cross-examination or about anything else. You must also keep the witness from giving a speech instead of answering your questions. The idea is to enable you to keep control of the witness and of the cross-examination rather than risk letting the witness take control away from you. There is an important exception to this. If you feel sufficiently sure that an explana- 13.02 tion the witness wants to give will be helpful to your client’s case, it can be desirable to let the witness give that explanation. But this exception contains the obvious risk that you will lose control of the witness, and of the cross-examination, since you can never be absolutely certain of what the witness will say. As a result, this exception is rarely applicable and very careful thought must be given before you permit a witness to explain anything. Witness attempts to explain things arise in a great variety of contexts. Some of those 13.03 contexts are very challenging. Others can be dealt with relatively easily. The following discussion explores some of the more common ones.

137

The Nine Basic Principles

B.  ‘I can’t answer that yes or no’ 13.04 Sometimes a witness will respond to a question by saying something like: ‘I can’t

answer that yes or no.’ That may be a perfectly innocent response, given by a cooperative witness who does not have any agenda other than a desire to answer your questions as accurately as the witness can. But it may also be an attempt by an adverse or hostile witness, a recalcitrant witness, to find an opening to give a speech about something hurtful to your client’s case, a speech you do not want to hear or have the arbitrators hear.

13.05 Your immediate reaction to such a response from a witness should be to try to figure

out why the witness gave it. That reaction, of course, should not be visible to the witness, or to the arbitrators, or to anyone else. You must think through what to do, and come to a decision, so quickly that the existence of that process is not apparent to anyone other than you. 1.  The cooperative witness

13.06 Suppose you conclude that the witness wants to be cooperative and honestly feels

unable to answer the question yes or no. There are at least two possible explanations for why the witness might feel that way.

13.07 One possible explanation is that the question really was for some reason not subject

to a yes-or-no answer. That could be so if the question was unclear, or ambiguous, or had some other defect. So the first part of your thought process will be to decide whether the question was in fact defective.

13.08 If you conclude that the question was defective, you ought simply to ask a different

question that does not contain the defect. Depending on what you sense of the witness’s feelings and of the atmosphere in the hearing room, you may perhaps precede that different question by saying something like ‘Let me ask you that in a different way’ or ‘Let me ask you a different question’. But such a prefatory statement is not necessary. It is principally useful to give the witness, and the arbitrators, a feeling that you are being fair-minded.

13.09 The other possible explanation is that the witness did not understand the question,

even though the question itself did not contain any defect. You may be able to sense from the witness’s tone of voice or body language, or both, that the witness did not understand the question.

13.10 Here, again, the wisest course is simply to ask a different question, either with or

without the prefatory language. Given that the witness did not understand the question, however, it is often wise to try to further simplify what is being asked.

138

Do Not Let the Witness Explain But it may not be easy to do that. If the question was a short, simple, unambiguous 13.11 leading question limited to a single, simple fact and containing about 25 words, simplifying it may not be possible. You will then have to find a different route to getting an answer, perhaps by going back to an earlier stage of the line of questions that is involved and trying to come at the question involved in a different way. With a cooperative witness, however, you will rarely ask anything like ‘Did you 13.12 understand my question?’ To ask that question is to invite the witness to explain what the witness thinks about the original question. That invitation is likely to lead to a discussion in which you could well lose control of the witness and of the examination. Even if that invitation does not have that effect, the discussion is unlikely to be useful in accomplishing what you want to accomplish with the examination. You would never want to ask anything like ‘Why not?’ when the witness says ‘I can- 13.13 not answer that question yes or no’. That wide-open ‘journalist’ question invites the witness to say absolutely anything the witness wants to say. It is thus an even more dangerous invitation to an even more unhelpful discussion that is even more likely to be damaging to the cross-examination. 2.  The recalcitrant witness Suppose, however, that you conclude that the witness does not want to be coop- 13.14 erative. That will often be the case in an international arbitration, where the witness being cross-examined will usually be at least adverse, and may even be truly hostile, to your client’s case. Such a witness may well have, and quite probably will have, an agenda other than trying to answer the questions in the most accurate way possible. Such a witness may then try to use the tactic of saying ‘I can’t answer that question yes or no’ to find an opening in which to say things that are hurtful to your client’s case. Despite the differences between the cooperative witness and the recalcitrant wit- 13.15 ness, however, you will still need to decide whether the question has a defect. If it does have a defect, you will ask another question that does not have a defect, either with or without a prefatory statement of the kind suggested in paragraph 13.08. As with the cooperative witness, but even more so, you will never ask ‘Why not’ 13.16 when the witness says ‘I can’t answer that question yes or no’. But unlike the situation with a cooperative witness, it may sometimes make sense 13.17 to ask a recalcitrant witness ‘Did you understand my question?’ The reason is that a recalcitrant witness can sometimes be unambiguously shown to be evasive if the examiner asks that question, gets a ‘yes’ answer, and then asks ‘Then why have you not answered it?’ That is especially true if you first ask the question and get the non-answer, then ask ‘Did you hear my question?’, followed by ‘Did you

139

The Nine Basic Principles understand it?’, and finally by ‘Then why have you not answered it?’ But that device should be used sparingly. 13.18 Suppose, however, that the recalcitrant witness answers ‘no’ to the question ‘Did

you understand my question?’ In that event you are in a different situation. You do not enter into a discussion of why the witness did not understand the question. You simply continue to ask questions, using a series of questions that do not include the one the witness claims not to have understood.

13.19 If the witness, instead of simply answering ‘no’, goes on to elaborate on the ‘no’, you

confront a situation like that discussed in the next section.

C.  ‘I don’t understand the question’ 13.20 A witness may say ‘I don’t understand the question’, or something else that has simi-

lar meaning. What you do then is much the same as what you do when the witness says ‘I cannot answer that yes or no’, with this important exception: you never ask the witness why the witness does not understand the question.

13.21 When a witness says ‘I don’t understand the question’ you must engage in the same

thought process as described in the preceding sub-chapter so as to decide whether the witness is honest or instead has an agenda. But what you do after you decide whether you think the witness is honest or has an agenda is different here from what it was there.

13.22 When the witness says ‘I don’t understand the question’, you simply ask another

question. You may precede that new question with a prefatory comment like ‘Let me ask you that in a different way’ or ‘Let me ask you something else’. Or you may ignore what the witness said and simply ask another question. But whether you use a prefatory comment or not, your response will always be to ask a new question rather than to engage in any discussion with the witness about the question the witness claims not to have understood.

13.23 There is never anything ever to be gained by discussing with the witness why the

witness did not understand the question. That is true if the witness honestly did not understand the question. It is at least equally true if the witness makes that response in order to seek an opening to interfere with your cross-examination.

13.24 Of course it matters whether or not the witness in fact did or did not understand the

question. If the witness understood the question but denies that, you will be dealing with a witness who intends to try to interfere with your cross-examination. It is thus useful to try to figure out whether or not the witness in fact did not understand the question. But your response—asking another question—will be the same whether or not the witness in fact understood the question. 140

Do Not Let the Witness Explain

D.  ‘Let me explain that’ Sometimes a witness will say something like ‘Let me explain that’ and, without wait- 13.25 ing for you to say anything, will launch into a speech about something. Sometimes a witness will simply proceed to give a speech about something instead of answering your question, without any preface at all. Sometimes a witness may answer your question ‘yes’ or ‘no’ but then add something along the lines of ‘but you see’ or ‘but that leaves out’ and then go on to make a speech. When a witness does any of these things you need to decide, initially, whether to let 13.26 the witness say whatever the witness wants to say, or whether instead to try to stop or limit the witness’s speech. In making that decision, you must watch the arbitrators carefully, because their reactions will help you decide what to do. 1.  The witness’s speech Simply letting the witness speak has some advantages.

13.27

To begin with, letting the witness speak avoids the problem of trying to stop the 13.28 witness. Of course you can break into the witness’s speech and say something like ‘Please just answer my question’, but the witness is likely to respond by saying something like ‘That is what I am trying to do, counsel’. If the witness does that, you do not have any very effective reply. It will not do to enter into a discussion with the witness as to whether or not the speech is a properly responsive answer to the question. The reality, moreover, is that you simply cannot stop a witness who is determined 13.29 to make a speech. The tactic just mentioned may sometimes work, but often will not. Efforts to find an opening in which to tell the witness that re-direct examination will provide an opportunity for the witness to say whatever the witness wants to say likewise will not stop a witness who is determined to continue. In addition, such efforts can easily make you look arrogant or condescending. That is not desirable. Beyond that, the arbitrators may want to hear what the witness has to say. If they 13.30 do, you will not want to frustrate them. If you try to stop the witness, one of the arbitrators may well say ‘Wait a minute, counsel. I want to hear what the witness wants to say’. You don’t want that to happen. It is far safer to let the witness speak and let the arbi- 13.31 trators stop the witness when they have heard what they want to hear. In addition, the fact that the witness has decided to make a speech says a lot about 13.32 the witness. The arbitrators will draw their own conclusions about the witness from

141

The Nine Basic Principles the fact, and the content, of the speech. You, too, will want to learn from the fact and the content of the speech as much as possible about the witness. 13.33 So you will want to listen carefully to what the witness says and how the witness

says it. You will want to know what the speech suggests both as to the witness’s agenda and as to what you may want to do to deal with the witness once the witness has finished the speech.

13.34 You may or may not want it to be apparent that you are listening carefully to what

the witness is saying and watching carefully how the witness is saying it. You may consider it better for your client’s case to seem uninterested or dismissive of the witness’s speech. But either way, you will in fact listen and watch very carefully. 2.  Your response

13.35 When the witness has finished speaking, you will have to decide what to do in

response to what the witness has done.

13.36 One possibility is to ignore the witness’s speech and proceed as though it had not

occurred. That will often be the best thing to do. It will suggest that the speech makes no difference to your client’s case. It will suggest to the witness that speeches will not accomplish what the witness wants. It will avoid the risk of entering into an uncontrolled conversation with the witness with the attendant risks of losing control of the witness and of the examination.

13.37 But sometimes ignoring the speech is riskier than trying to do something about it.

There are many possible approaches, including the following. a. Using the content of the speech

13.38 One possibility is to find something in the speech which provides a predicate for a

series of questions that you think will be helpful to your client’s case. Particularly if the witness has been careless in the speech and has said something demonstrably false about some fact, using this approach may ensnare the witness in great difficulties. This approach, however, contains a very considerable risk of getting into an uncontrolled conversation with the witness, which of course you will not want to do. b. Using simple questions

13.39 As an alternative, you may choose to ask a short, simple question, perhaps preceded

by a question like ‘Have you finished?’

13.40 That short, simple question could be the very one that provoked the speech, repeated

verbatim. If you ask that question, the witness may well say ‘I just answered that’. If the witness does that, however, the examiner can perfectly well say ‘Please answer it again’. That process can be repeated until it is clear to the arbitrators that the witness 142

Do Not Let the Witness Explain is evading the question rather than answering it. There is, however, the risk that the arbitrators will perceive this as a waste of time, which could alienate them. An alternative is to reformulate the original question, with or without using in the 13.41 reformulation something from the speech the witness gave. This alternative may tend to reduce the risk of appearing to waste time. It may also make it easier to ask further questions in an effort to work the witness into an awkward position. Still another alternative is to ask a question about something that is different from 13.42 the inquiry that provoked the speech, followed by a series of such questions. Doing that confronts the witness again with questions that are properly answered only ‘yes’ or ‘no’, but addressed to a different subject. That approach may gradually discipline the witness—or, to put it differently, teach the witness not to make speeches. c. The witness’s anxiety level Using a series of any of these simple questions may operate to raise the witness’s 13.43 anxiety level and enable you to discipline the witness. It is a relatively rare witness who feels entirely comfortable during cross-examination. That discomfort can provide you with openings to regain control over the witness or to establish it for the first time. You will be able to sense whether the witness is feeling an increase in anxiety and 13.44 becoming less recalcitrant. If you sense that this is happening, it may become possible to manipulate the witness towards cooperation, no matter how unwilling the witness may be to go there. What you do can profoundly affect the witness’s state of mind, the witness’s psy- 13.45 chological comfort or discomfort. We have already mentioned using the witness’s name. Here is another example.1 The witness was a retired high-ranking officer in Army Intelligence who considered 13.46 himself a real ‘tough guy’. He was cross-examined by an English QC in a demonstration of cross-examination technique. As the cross-examination proceeded, the cross-examiner perceived that the witness 13.47 had an emotional and psychological need to look the cross-examiner in the eye as the questions were put and answered. Recognizing that need, and desiring to discomfit the witness, the cross-examiner started looking at the wall instead of at the witness. Of course the cross-examiner continued to watch the witness out of the corner of his eye, and also continued to be as aware as possible of everything else that was going on in the room. But the witness could not see that the cross-examiner was

1  This example is taken from a lawyer’s memory of a course in the United States sponsored by the National Institute for Trial Advocacy.

143

The Nine Basic Principles keeping an eye on him and began to feel increasingly insecure. As the examination proceeded, the witness became less and less confident in the evasive answers he was giving and finally more or less broke down. 13.48 It took courage for the cross-examiner to try this tactic, and it is probably the rare

witness on whom it would work, but its effect was remarkable. And it provides yet another example of the cross-examiner’s power over the witness and how that power can be used to control the witness.

13.49 But some witnesses are irretrievably recalcitrant and simply not subject to being

disciplined. When you are dealing with such a witness you will need to proceed differently. A useful way to deal with such a witness is to let the witness give speeches until it is clear that the witness is trying to manipulate the system. Often you will be able to find a way within the witness’s manipulative behaviour to catch the witness in something less than entirely truthful. You can then demonstrate to the arbitrators that the witness is not credible, either as to the specific subject or entirely. d. What to avoid

13.50 What you do not want to do is to say to the witness something like ‘So what you are

saying is . . .’. The witness may simply say ‘no’, or may launch into a further speech.

13.51 Nor will you want to say to the witness ‘So the answer is yes, isn’t it?’, because that

too will evoke either a ‘no’, or a further speech, or both.

13.52 These are further examples of the principle, discussed in paragraph 11.01, that you

should not ask the witness to agree with conclusions you want the arbitrators to reach.

E.  ‘Let me ask you a question’ 13.53 Sometimes a witness will say something like ‘Let me ask you a question’. Sometimes

a witness will simply ask you a question without first asking permission to do so. That is often a very challenging situation.

13.54 As a general proposition, the best way to deal with this situation is to ignore what the

witness has done and proceed with your next question. The arbitrators know that you are the one who asks questions and the witness is the one who answers them. The arbitrators thus know that the witness has no right to ask you a question.

13.55 Ignoring the witness’s request, or the witness’s actual question if one has been posed,

tends to protect you from the risk of getting into an uncontrolled conversation, or even an argument, with the witness. You always want to keep that risk as small as possible. 144

Do Not Let the Witness Explain But ignoring what the witness has done is not always a feasible way to proceed. One 13.56 can imagine situations in which the arbitrators might think it entirely legitimate for the witness to ask you a question in light of how the examination has proceeded. Or the witness may be persistent and repeatedly ask you a question, or even say something along the lines of ‘Why haven’t you answered my question?’ Ignoring the witness in these situations would be difficult and probably not beneficial to your client’s case. If ignoring what the witness has done is not feasible, you have other options. One 13.57 possibility is to use the question to advance the examination, as the counsel in the X-ray case in Chapter 8, section C did. That is clearly the best approach if you can manage to use it. Another possibility is to tell the witness that the re-direct examination will provide an opportunity to say whatever the witness wants to say. Yet another possibility is to tell the witness that the rules are that you are the one who asks the questions. But it is challenging to manage to say either of these latter things without appearing condescending or arrogant. Thus, except in circumstances where you can use a response to the question to advance your client’s case, you will simply ignore what the witness has done and will continue to ask questions of the witness.

145

14 BASIC PR INCIPLE NO. 9: EX ERCISE SELF-CONTROL—DO NOT ARGUE, OR GET ANGRY, W ITH THE W ITNESS

A. Controlling the Witness Requires Your Self-control at All Times 14.01 B. Arguing with the Witness 14.02 1. Loss of control 2. Loss of persuasiveness

C. Avoiding Argument

14.03 14.06 14.10

D. Getting Angry with the Witness 14.14 E. Avoiding Anger 14.17 F. Self-control 14.34 G. Your Need for Personal Integrity 14.39

A.  Controlling the Witness Requires Your Self-control at All Times 14.01 You must exercise self-control and act with integrity and dignity at all times, not

only during the cross-examination but also during the entire arbitration proceeding. That is a vitally important principle. As a part of that principle, you must not argue, or get angry, with the witness.

B.  Arguing with the Witness 14.02 If you argue with the witness you will almost certainly lose control of the witness

and of the cross-examination. But that is not all. You will also almost certainly lose dignity and that loss of dignity will, in turn, almost certainly mean that the arbitrators will see you as less persuasive. 1.  Loss of control

14.03 Loss of control will mean that the witness essentially has complete freedom to say

whatever the witness wants. There will be no way for you to control what the witness 146

Do Not Argue, or Get Angry, with the Witness—Exercise Self-control says during an argument, nor will there be any need for what the witness says to be responsive to what you say. The witness will be able to say anything at all, and you will not be able to bring the argument to an end. No matter what you do, the witness will be able to continue to talk. Of course the arbitrators may at some point decide that they have heard enough— 14.04 or too much—and will themselves end the argument. But that will not erase the damage the argument did. Part of that damage is the damage done to your client’s case. That part of the damage 14.05 results from your loss of control over what the witness says, with the result that the witness may say any number of hurtful things, whether or not they were said during the direct testimony. 2.  Loss of persuasiveness But damage to your client’s case is not the only damage that arguing with the 14.06 ­witness will do. Such arguing will also damage your standing with the arbitrators. Remember that you have tremendous power over the witness. You ask the questions 14.07 and can insist that they be answered. You choose the subject matter of the questions, and the sequence and tempo at which they are put. You are assumed to be experienced in arbitration hearings, whereas this may be the witness’s first experience. Your power over the witness means that you lose status if you lose dignity. In a sense 14.08 you become like an angry parent screaming at a child. Your loss of status means that you lose some of your persuasive force as an advocate. You do not want that to happen. Your power over the witness also means that there is always the risk that the ­witness 14.09 will be seen as the underdog in the examination. If that happens, the underdog may evoke the arbitrators’ sympathy. Some clever and manipulative witnesses may even try to accomplish that consciously. You don’t want that to happen either. Maintaining dignity is an important part of keeping it from happening.

C.  Avoiding Argument Given the foregoing, you will want to avoid arguing with the witness. Being aware 14.10 of what can lead to an argument will help you do that. As noted earlier, a cross-examination is an interaction between two people, an exam- 14.11 iner and a witness. It follows that whatever you may know about interacting with another person is relevant to how you conduct your cross-examination. What you know presumably includes how to avoid an argument, as well as how to start one. 147

The Nine Basic Principles 14.12 Beyond that, however, there are some things that are more likely than others to

provoke an argument. Calling the witness a liar is one. Being rude or overbearing or condescending to the witness is another. Getting angry with the witness is still another.

14.13 There are many more things you may unwisely do that may provoke an argument,

but getting angry with the witness deserves special discussion.

D.  Getting Angry with the Witness 14.14 All of the bad things associated with arguing with the witness are equally true if

you become angry with the witness. But getting angry is, as a general proposition, even worse than simply arguing. There are, it is true, claimed to be instances of a cross-examiner who was (or pretended to be) furiously angry with a witness and was able to accomplish many good things as a result. But those instances (if they in fact occurred) are rare. For most of us, anger with the witness is an undiluted negative.

14.15 There are many reasons for this. One is that real anger interferes with judgement

and leads a person to do foolish or undesirable things. Real anger can lead you to lose dignity, with the consequences sketched in paragraph 14.08. Real anger can also lead you to lose focus on the examination itself, even to lose focus on your client’s case. At a minimum, real anger can lead to loss of control over the witness and even over yourself.

14.16 Anger, whether real or feigned, also tends to alienate those who observe it, which in

an arbitration very significantly means the arbitrators. You obviously don’t want to alienate the arbitrators.

E.  Avoiding Anger 14.17 So you will want to avoid getting angry. How do you do that? 14.18 Once again your ordinary experience in dealing with other people comes into play.

You know (or should know) from that experience how to exercise self-control. You know what can prompt you to feel angry. You also know what you can do to keep those feelings of anger from causing you to lose control of yourself. Each of us is different. Each of us has to some extent different ways of dealing with things that may provoke anger. You need to deal with the issue of anger in the ways that work best for you.

14.19 Anger is often said to be a cover for some other emotion, often for feelings of anxi-

ety. What that means is that when a person is anxious, whether or not the person is aware of feeling anxious, the person may become angry. So it becomes important for 148

Do Not Argue, or Get Angry, with the Witness—Exercise Self-control you to explore what may make you anxious, whether or not you are aware of feeling anxious, and what your being anxious means for your conduct as a cross-examiner. It is well known that anxiety is often aroused when a person feels diminished con- 14.20 trol, or a complete loss of control, in a situation. It is equally well known that anxiety is often aroused when a person feels frustrated. In either of those instances, and in many others, the resulting anxiety, whether conscious or unconscious, may lead a person to feel angry. It is obvious how these notions can apply to the process of cross-examination. Consider the follow cross-examination. You are questioning a witness who owns 51 14.21 per cent of a company. You ask these questions: Q: You own 51 per cent of the company, don’t you? A: I own a majority. Q: That majority is 51 per cent, isn’t it? A: I told you, I own a majority.

That may be all you need, in which case it is easy for you to stop. But there is a risk 14.22 that the witness, having evaded the precise admission of 51 per cent, will feel enabled to take control of the examination away from you. There is the risk that the examiner will feel a loss of control, or will feel frustrated. There is the risk that what the witness has done will have an effect on the arbitrators that is undesirable from the point of view of your client. And there is the risk that your client may feel a loss of confidence in you because you have not gotten the admission you wanted. You must evaluate all of these risks in deciding whether to press on. Suppose you decide that the precise admission of 51 per cent is essential, either as a 14.23 demonstration of control over the examination or for some other, perhaps substantive, purpose in the case. So you may ask something like this:

14.24

Q: Your majority is 51 per cent, isn’t it? A: I told you already, I own a majority.

That can go back and forth without you getting the admission you want, that the 14.25 majority is 51 per cent. What should you do? There is, of course, a risk that you, feeling that control has been lost, will start to 14.26 get angry. That would be most unfortunate. You should instead do something else, perhaps continue with questions something like these: Q: 90 per cent would be a majority, wouldn’t it? A: Yes. Q: 75 per cent would be a majority, wouldn’t it? A: Yes.

149

The Nine Basic Principles Q: But your majority is not either of those, is it? A: No. Q: Your majority is 51 per cent, isn’t it? A: Yes. 14.27 That’s what you want to happen. But suppose the witness is feeling combative,

either as a matter of personality or for some other reason. The answers given just now might not be the answers the witness would give. One could imagine that the interaction might go like this instead: Q: 90 per cent would be a majority, wouldn’t it? A: So? Q: 75 per cent would be a majority, wouldn’t it? A: So? Q: But your majority is not either of those, is it? A: I told you I own a majority. Q: Your majority is 51 per cent, isn’t it? A: Don’t you understand what I said: I own a majority. What is wrong with you?

14.28 Now you have a different calculus to make. The witness is clearly being obstructive,

in addition to possibly being insulting. And it would be fair to think that the insult addresses not only you but also the arbitrators, since the arbitrators are in some sense entitled to have the witness be responsive.

14.29 So what would be the best thing for you to do here? 14.30 Perhaps you might say something like this:

Q: All right, Mr Witness, the documents will show beyond doubt that your majority is 51 per cent, even if you don’t care to admit that. Let us go on to something else. 14.31 And then you would indeed go on to something else, ideally something far removed

from what percentage the witness owns.

14.32 Where would this leave the cross-examination at this point? You would have main-

tained dignity and credibility. The witness would have lost both.

14.33 The point is that in dealing with a witness like this one you can feel, or perhaps even

fear, a loss of control. That can in turn produce anxiety, and the anxiety can in turn produce anger. You must learn how to keep it from doing that.

F. Self-control 14.34 Avoiding argument and anger are important, but self-control is about more than

not arguing with the witness or not getting angry. 150

Do Not Argue, or Get Angry, with the Witness—Exercise Self-control There are many things you cannot control in arbitration, but there is one thing 14.35 which you can control. That one thing is yourself. It is essential to effective cross-examination that you exercise self-control. Knowing yourself is a prerequisite to having control over yourself. For the purposes 14.36 of cross-examination you need to know certain quite specific things about yourself. You need, first, to know who you are. That is because you cannot be effective as 14.37 a cross-examiner unless your audience—the arbitrators and, perhaps, also the ­witness—senses your genuineness. Being an advocate may have elements of theatre. But acting a part rather than being yourself will almost invariably reduce your effectiveness and credibility, maybe even completely undermine it. You also need to know what your strengths and weaknesses are. In the context of 14.38 cross-examination, that means knowing what can make you anxious or angry and how to deal with those things. It also means knowing how well you can sense what is happening in another person, how good your memory is, how quickly you can process new information, how clearly you can express what you want to say in the language in which the arbitration is being conducted. In brief, it means knowing all those things about yourself that are relevant to the process of cross-examination.

G.  Your Need for Personal Integrity You will, of course, interact with people other than adverse witnesses in the course 14.39 of an arbitration—counsel for the other parties to the case, those parties themselves, and also the arbitrators. There may be others with whom you interact and it can happen that not all the interactions are pleasant. No matter how others may act, you should always act with the utmost integrity. You 14.40 should never deviate from what you honestly believe is the truth. Your word should be totally reliable, your ‘bond’. If you say you will do something, do it. If you say you will not do something, don’t do it. You should also always act with courtesy and dignity. That is true no matter how 14.41 provoked you may be by what others do. Treat the arbitrators, all counsel, all parties, and all witnesses with respect. Preserve your own self-respect and others will respect you. There is an anecdote, said to be true, about a barrister, F.E. Smith, later Lord 14.42 Chancellor, who appeared before a judge whom he loathed and who loathed him. The following exchange occurred:1

1

  This anecdote has wide currency among lawyers. We don’t know where we first heard it.

151

The Nine Basic Principles Judge: You are being obnoxious, Mr. Smith. Smith: The fact is we both are, My Lord, but I am trying to be and you can’t help it. 14.43 One cannot help but wonder who came out ahead in that exchange. 14.44 The need to act at all times with the utmost integrity, and with courtesy and dignity,

is not only of general applicability but is also relevant to your maximum success as a cross-examiner. It is vital that you be perceived as trustworthy and credible if you are to do as good a job as you can for your client, and these behaviours contribute to—may even be essential for—your being perceived in that way.

152

Part III CONCLUDING R EM AR KS

15 LE AR NING FROM EX PER IENCE We believe that the nine basic principles which we have discussed in this book con- 15.01 stitute a solid basis for your work in developing as a cross-examiner. They will help you to keep moving in the right direction. As you gain more experience as a cross-examiner you may develop further princi- 15.02 ples, or additional exceptions to the nine basic principles. As a rule that is a good sign, because cross-examination is no absolute science. Rather, it is a moving target, which is very dependent on the circumstances of the individual case. We believe, however, that any new principle, or exception, that you may develop as you mature as a cross-examiner should be consistent with the nine basic principles. If any of them is not, you should think again before applying that principle or 15.03 exception. In all likelihood that new principle, or exception, will not be conducive to conducting a convincing and effective cross-examination. It is important to keep in mind that cross-examination is not a goal in and of itself. 15.04 Cross-examination is rather a tool—sometimes a weapon—for you to use for the purpose of obtaining a favourable award for your client. To do this successfully you need to determine at an early stage exactly what you want to achieve with your cross-examination. This will depend upon your analysis of the facts and the law involved in the case against the background of your theory of the case. The nine basic principles which we have discussed must thus be seen in this broader perspective. Underlying what we say in this book are three fundamental themes.

15.05

First, international arbitration is very different from litigation in national courts, 15.06 be they in common law or civil law countries. The overarching distinctive feature of arbitration is its Fundamental Principle, i.e., the agreement of the parties. Arbitration is thus consensual in nature, which means that the parties determine the legal and factual framework of their arbitration, both of which vary from arbitration to arbitration. The parties appoint the arbitrators, directly or indirectly. As a rule the arbitrators are highly qualified and experienced lawyers who come to the 155

Concluding Remarks hearing at which your cross-examination will take place reasonably familiar with the facts and legal issues involved in your case. Very often the arbitrators come from different legal cultures and backgrounds. All these aspects must be kept in mind when planning and conducting your cross-examination. 15.07 Second, the common denominator of the nine basic principles is control of the

­ itness. Without controlling the witness you will seldom be able to achieve your w objectives in cross-examination. As we have explained, cross-examination is not about obtaining new information. It is about using known facts to the advantage of your client’s case. You do this by putting words in the witness’s mouth. You make the witness say what you want the witness to say. You lead the witness where you want the witness to go. You cannot do these things without maintaining control of the witness throughout your cross-examination. If you observe the nine basic principles, you will have a good chance of doing that. Loss of control can—and in most cases will—have disastrous consequences for your cross-examination.

15.08 Third, during cross-examination you should make points of a factual nature that

you will use in your closing argument. Every point you are making is one piece of the jigsaw puzzle that you must put together for the arbitrators. This you do in your closing argument, and that is when you draw the conclusions, or even better, allow the arbitrators themselves to draw the conclusions. If you ask for conclusions during the cross-examination you will seldom get the answers you want to get. This may endanger, or even destroy, not only your plan for the cross-examination, but also your entire game plan based upon your theory of the case.

15.09 When you prepare cross-examination, and when you conduct it, you must thus

always keep your closing argument in mind.

15.10 This is not the place to discuss oral closing argument. It requires a book of its own.

Suffice it to say that while you should always strive for a certain degree of rhetorical excellence, you are well advised to keep in mind what the Romans supposedly said about two famous orators in ancient Rome. When Cicero spoke the comment was: ‘By Jove that is a beautiful speech’. But when Caesar spoke the Romans said: ‘Let us march’. In other words, your closing argument must seek to induce the desired action: an award in favour of your client.

156

INDEX

ambiguity avoiding, importance of  9.28–9.51 anger 5.69 see also arguments avoiding 14.17–14.33 loss of control, and  14.03–14.05 loss of persuasiveness, and  14.06–14.09 loss of status and dignity, and  14.08–14.09 towards witnesses  14.14–14.16 answers body language, and  10.20 evaluation and reaction to  10.01–10.16, 10.34–10.61 explicit requests for agreement, and 11.09–11.17 failure to answer  10.22–10.33 honesty of witnesses, and  10.25–10.28 indirect requests for agreement, and 11.18–11.19 next question, influence on choice of 10.02–10.16 non-verbal signals, and  10.18, 10.20 tone of voice, and  10.20 as truth  vs. fact 9.12–9.13 witnesses who can’t answer either yes or no 13.04–13.19 witnesses with agendas, and  10.29–10.33 yes answers  10.19–10.20 yes answers plus more  10.21 anxiety anxiety-provoking questions  5.58–5.63, 5.66 causes of  14.20 dealing with and using  5.55–5.63 overcomplication of questions, and  9.24–9.26 witness anxiety levels  13.43–13.49 arbitral awards arbitration interpretation, powers of  2.27 challenging 2.26 correction, powers of  2.28 enforceability  2.32, 2.35 final and binding on the merits  2.25–2.31 nullification 2.29–2.31 purpose 2.25 refusal, grounds for  2.34 setting aside, grounds for  3.16 ultra vires/ultra pepita 3.16

arbitration agreements/clauses as bar to court proceedings  2.10–2.16 doctrine of separability  2.17–2.21, 2.24 introduction 2.01 legal capacity of parties  2.15, 2.20 validity of  2.15–2.16, 2.20–2.24 waiver of  2.10, 2.14 will of parties, importance of  2.03, 2.06–2.09 arbitration decisions binding nature of  2.03 challenging  2.23, 2.25–2.31 arbitration proceedings civil proceedings, differences from  3.02–3.08 evidence rules  3.03, 3.05–3.06, 3.25, 4.06–4.08 iura novit curia, inapplicability of  3.07 pre-hearing discovery  3.03–3.04 request for arbitration  3.01 stages 3.01 written witness statements  3.09–3.23 arbitrators appointment 3.01 background and qualifications  4.02, 4.04–4.05 compétence de la compétence principle 2.22–2.24 decision-making role  4.02–4.04 evidentiary powers  3.28–3.34, 3.49, 4.06–4.08 limitations on  2.08–2.09 making own conclusions  5.34 multiculturalism 4.05 observation of reactions of  5.53, 5.65, 10.33 rights and duties  4.06–4.08 arguments see also closing arguments anger, avoiding  14.17–14.33 anger, towards witnesses  14.14–14.16 avoiding  5.46–5.49, 5.67, 11.03, 14.10–14.13 causes of  14.12–14.16 counter-productiveness of  5.37–5.38 damage caused by  14.01–14.09 loss of control, and  14.02–14.05 loss of persuasiveness, and  14.06–14.09 loss of status and dignity, and  14.08–14.09

157

Index body language  5.51–5.52, 5.64, 10.20, 12.14 brevity advantages of  7.07, 7.10–7.12, 7.26–7.31 decision not to cross-examine, and  7.22–7.23 lack of, implications  7.13–7.21 need for  4.09, 7.07–7.31 principles of  7.03–7.04, 7.08–7.10 three main points maximum rule  5.70–5.72, 7.01–7.06 Cicero 15.10 closing arguments 15.08–15.10 credibility, mentioning in  12.09–12.10 preparation  5.12, 6.11–6.12 compétence de la compétence principle  2.22–2.24 conclusions see also closing arguments asking for, consequences of  11.06–11.08 explicit requests for agreement, and 11.09–11.17 indirect requests for agreement, and 11.18–11.19 not asking for, rule  11.01–11.59 purpose 11.04 rule exceptions  11.05 control of witnesses see also self-control alternative tactics  13.47–13.48 approaches to avoid  13.50–13.53 cooperative witnesses  13.06–13.13 importance of  5.21–5.23, 8.08–8.09, 9.22–9.23, 10.31, 13.01–13.03, 15.07 loss of persuasiveness, and  14.06–14.09 questions from witnesses, dealing with 13.53–13.57 recalcitrant witnesses  13.14–13.19, 13.44, 13.49 self-control, and  14.01–14.05 witnesses anxiety levels, and  13.43–13.49 witnesses not understanding the question 13.20–13.24 witnesses, speeches by  13.25–13.52 courtesy 14.39–14.44 credibility of evidence  3.31–3.34 of expert witnesses, undermining  7.42, 7.50–7.54, 8.15–8.27 inconsistent testimony, and  12.36–12.53 of information  6.22 leading questions, role in establishing 8.15–8.34 perjury, and  7.30 reference to, in closing arguments  12.09–12.10 cross-examination, generally see also preparation advantages of  3.34, 6.17 brevity, need for  4.09

counsel’s knowledge, importance of  5.40–5.44 decision not to cross-examine  7.22–7.23 decision trees  6.89 environment, adaptation to  5.73–5.74 environment, awareness of  5.64–5.65 experience, value of  15.02 explanation of  5.03–5.05 first rule of  6.14, 6.16 gentle approach vs. attack approach  6.68–6.72 narrative structure, benefit of  5.72 observing the observers  5.53, 5.65, 10.33 pitfalls 5.46 place in proceedings  5.02 purpose  1.09, 5.01–5.05, 5.45, 6.15, 11.01, 15.02 qualifiers, use of  9.40–9.44 rehearsals 6.95–6.96 risks of  5.08–5.10, 6.19 self-control, importance of  5.67–5.69 simplicity, importance of  9.01–9.03, 9.16–9.27 surprising a witness, possibility of  4.10 tempo 5.35 three main points maximum rule  5.70–5.72, 7.01–7.06 time available for  6.24 ultimate objective, determining  6.25–6.34 witness control, importance of  5.21–5.23, 10.31 dignity 14.39–14.44 loss of  14.08–14.09 discovery IBA guidelines  3.03, 3.25 pre-hearing discovery  3.03–3.04 doctrine of separability  2.17–2.21, 2.24 documents IBA guidelines on  3.50–3.52 preparation 6.73–6.80 production of  3.47–3.52 purpose 6.79 rebuttal documents  3.68 refusal to produce  3.04 duress/coercion 2.20 emotions and feelings see also anger; anxiety witnesses’ emotional state  10.17–10.18, 13.43–13.49 English language  1.03, 9.08 evidence 3.37 see also expert witnesses; witnesses; written witness statements admissibility standards  3.41–3.46 arbitrators’ powers  3.28–3.34, 3.49 control over  3.25–3.27 evidentiary weight, allocation of  3.33

158

Index exclusion of  3.42–3.43 fact witnesses  3.38 IBA guidelines  3.03, 3.25, 3.46 inspection of subject matter of dispute  3.39 introduction 3.24 perjury, availability of sanction  3.31 preparation of documents and exhibits  6.73–6.80 production of documents  3.47–3.52 recourse to courts for  3.52 reliability of information  5.41–5.44 rules of  3.05–3.06, 4.06–4.07 statement of evidence  3.01 truthfulness and credibility of  3.31–3.34 types of  3.35–3.40 witness testimony, general considerations  3.53–3.64 expert witnesses  3.39, 3.63–3.64 effective cross-examination of  7.32–7.54, 8.15–8.34 factual reliability, and  7.38 intellectual basis for opinion  7.39 standard learning in field, and  7.40 undermining credibility of  7.42, 7.50–7.54, 8.15–8.34 fact witnesses  3.38, 3.61–3.62, 3.64 facts answers as truth vs. fact  9.12–9.13 focus on, importance of  11.01–11.03, 15.08 not sticking to, consequences  11.06–11.08 studies, role in preparation  5.14–5.15 feelings and emotions anger 5.69 anxiety  5.58–5.63, 5.66 argument, avoiding  5.46–5.49, 5.67 psychological state of witnesses, influences of  10.17–10.18, 13.43–13.49 self-control 5.67–5.69 IBA Rules on Taking of Evidence admissibility standards  3.46 contents of witness testimony  3.66 production of documents  3.50–3.52 role of  3.03, 3.25 witness preparation  3.58 inconsistent testimony advantages of  12.17–12.22 characteristics 12.23–12.24 degree of inconsistency  12.31–12.33 evasion or explanations for  12.30–12.33 intended repetition  12.63–12.65 matter to which it relates, relevance of 12.25–12.29

oral statements differ from written statements 6.23 resistant witnesses, and  12.54–12.62 use of  12.34–12.62 integrity 14.39–14.44 international arbitration see also arbitration proceedings advantages 2.35 delocalized/a-national status of  2.05 domestic law, differences from  15.06 domestic law, independence from  2.05 enforceability  2.32. 2.35 introduction 2.01 lex arbitri 2.05–2.06 stages  2.02, 3.01 International Centre for Settlement of Investment Disputes (ICSID) 2.04 iura novit curia 3.07 leading questions  3.59, 3.69, 5.27–5.32, 7.13–7.19, 7.42, 7.50–7.54, 8.01–8.34 credibility of experts, and  8.15–8.34 features of  8.01–8.09 formulation of  8.15–8.34 open questions  5.25, 5.36, 8.10–8.14 rule to use only  8.05–8.09 lex arbitri 2.05–2.06 main hearing 3.01 multiculturalism 4.05 national law, role of 2.04 New York Convention (1958) 2.32–2.35 non-verbal signals importance of  5.50–5.63, 10.18, 10.20, 12.14 nullification of arbitral awards 2.29–2.31 parties to arbitration agreement as to binding nature of decision 2.03 autonomy, importance of  2.01 legal capacity of  2.15, 2.20 will of, importance  2.03, 2.06–2.09 perjury availability of sanction  3.31 credibility of witnesses  7.30 post-hearing briefs  3.01, 3.09, 3.22–3.23 rebuttal documents  3.68 preparation of cross-examination see also questions anticipating adversary counsel  5.13–5.14 closing arguments  5.12, 6.11–6.12 counsel’s knowledge, importance of  5.40–5.44 decision trees  6.89

159

Index preparation of cross-examination (cont.): documents and exhibit preparation  6.73–6.80 evaluation of evidence  5.17 evaluation of witnesses  5.17–5.19 factual studies  5.14–5.15 gentle approach vs. attack approach  6.68–6.72 hunches 6.43–6.52 importance of  6.01–6.04 information credibility  6.22 information gathering  5.11, 5.14, 6.21–6.22 oral evidence inconsistent with written statements 6.23 planning strategies  6.05–6.24 principles 5.11–5.20 rehearsals 6.95–6.96 role of  4.03 theory of the case  6.05–6.09, 6.13, 7.03 ultimate objective, determining  6.25–6.34 understanding applicable law  5.16 unexpected statements  6.20, 6.37, 7.04, 10.17, 11.58 working backwards  6.11–6.13 psychology of witnesses emotional state, influences on  10.17–10.18, 13.43–13.49 studies of  7.06 questions see also answers agreement, explicit requests for  11.09–11.17 agreement, indirect requests for  11.18–11.19 aim of cross-examination, and  6.30–6.32 alternative questions  6.90–6.93 alternative ways of asking  13.21–13.22 ambiguity, importance of avoiding  9.28–9.51 answers as truth vs. fact  9.12–9.13 anxiety-provoking questions  5.58–5.63, 5.66 argument, avoiding  11.03 causing damage to adversary position 6.39–6.42 choice of  6.35–56 compound questions  9.27 conclusions, not asking for  11.01–11.59 conclusions, rule exceptions  11.05 discursive questions  5.25–5.26 evaluation of answers, and  10.01–10.16 facts, focus on  11.01–11.03 final questions  6.58–6.60 first questions  6.61–6.62 follow-up questions  6.81–6.89 gentle approach vs. attack approach  6.68–6.72 hunches, and  6.43–6.52 leading questions  3.59, 3.69, 5.27–5.32, 7.13–7.19, 7.50–7.54, 8.01–8.34

one too many, not asking  11.20–11.48 open questions  5.25, 5.36, 8.10–814 overcomplication of  9.24–9.26 pauses between  10.09 preparation, importance of  5.24 reading written questions  5.38 repetition 5.66 rule 6.36–6.56 rule exceptions  6.39–6.56 sequence of  6.57–6.72 short questions  9.04–9.15 simple questions  9.01–9.03, 9.16–9.27 themes 6.65–6.66 threshold questions  6.14–6.15 tightening the question  9.08–9.13 when to stop asking  11.49–11.59 from witnesses, dealing with  13.53–13.57 witnesses who don’t understand the question 13.20–13.24 rejoinder to statement of defence 3.01 repetition dealing with  12.09–12.16 of direct testimony, avoiding  12.06–12.08 inconsistent testimony, and  12.17 intended repetition  12.63–12.65 of questions  5.66 risk of damage from  12.01–12.05, 12.09 witnesses credibility, and  12.09–12.10 reply to request for arbitration 3.01 reply to statement of defence 3.01 request for arbitration 3.01 Scarlett, J. 9.36–9.37 self-control anger  5.69, 14.03–14.09 control of witnesses, and  14.01–14.05 evasion by witnesses, and  5.67 importance of  5.67–5.69 personal integrity, and  14.39–14.44 self-awareness, and  14.34–14.38 simplicity importance of  9.01–9.03 simple questions  9.16–9.27 Smith, F.E. 14.42–14.44 statement of claim 3.01 statement of defence 3.01 statement of evidence  3.01, 3.68 theory of the case  6.05–6.09, 6.13, 7.03 tone of voice  10.08, 10.20 truth evidence, truthfulness and credibility of 3.31–3.34

160

Index fencing  10.34–10.61, 12.43–12.45 inconsistent testimony, and  12.38–12.53 lying, avoiding reference to  12.52 perjury  3.31, 7.30 vs. fact  9.12–9.13 ultra petita 3.16 ultra vires 3.16 UNCITRAL Model Law arbitration agreements as bar to court proceedings 2.11–2.12 doctrine of separability  2.19 nullification of arbitration awards  2.30 will of parties, importance of  2.08 validity of arbitration agreements compétence de la compétence principle 2.22–2.24 decisions in other jurisdictions  2.21 duress/coercion 2.20 legal capacity of parties  2.15, 2.20 Williams, E.B. 6.03 witnesses see also control of witnesses; inconsistent testimony with agendas  10.29–10.33 anxiety of dealing with and using  5.56–5.63 control of  5.21–5.23, 8.08–8.09, 9.22–9.23, 10.31, 13.01–13.03, 15.07 credibility  12.09–12.10, 12.36–12.53 eligibility criteria  3.53 emotional state of  10.17–10.18, 13.43–13.49 evasion by, and counsel self-control  5.67 expert witnesses  3.39, 3.63–3.64, 7.32–7.54, 8.15–8.34 explanations by, permissible exceptions  13.02 fact witnesses  3.38, 3.61–3.62, 3.64 failure to answer  10.25–10.33 failure to appear  3.57

fencing  10.34–10.61, 12.43–12.45 honesty 10.25–10.28 hostile witnesses  5.04 inconsistent testimony  12.36–12.53 leading of  3.59, 3.69, 5.27–5.32, 7.13–7.19 oral testimony  3.67–3.68 order of testimony  3.54–3.56 over-preparation 3.59–3.60 preparation 3.58–3.59 psychological state of  10.17–10.18, 13.43–13.49 psychological studies of  7.06 repetition of testimony  12.09–12.10 resistant witnesses  12.54–12.62 speeches by  13.25–13.52 statement of evidence, witness goes beyond scope of  3.68 surprising, possibility of  4.10 threshold question  6.14–6.15 unconscious deviation from accuracy  7.06 undermining, means of  6.30–6.32 witnesses’ speeches advantages of  13.25–13.52 responses to  13.35–13.52 written witness statements 3.09–3.23 advantages of  3.67, 6.15 contents of  3.66–3.67 facts and circumstances  3.18 IBA guidelines on content  3.66 IBA guidelines on discovery  3.03, 3.25 inconsistent testimony, and  12.58–12.62 initial submissions  3.14–3.18 legal grounds  3.17 new claims, amendments, set-offs and counterclaims 3.19–3.21 post-hearing briefs  3.01, 3.09, 3.22–3.23 prayers for relief  3.15–3.16 purpose 3.11–3.12 reluctant witnesses, and  12.58–12.62

161