Cross-Examination in International Arbitration: Making the Adjustment by David Coddon

PRACTICE GUIDE Prepared by David Coddon, November 8, 2013 CODDICOMM CONSULTING LLC

Cross-Examination in International Arbitration Making the Adjustment

1. DIFFERENT APPROACHES TO THE TAKING OF EVIDENCE...............................................2 A. COMMON LAW...................................................................................................................................................2 B. CIVIL LAW ..........................................................................................................................................................2 C. INTERNATIONAL ARBITRATION .....................................................................................................................3 2. A PRIMER ON CROSS-EXAMINATION .......................................................................................3 A. DEFINITION AND SIGNIFICANCE ....................................................................................................................3 B. STRATEGIC ADVICE FROM A COMMON LAW PERSPECTIVE ......................................................................4 3. ADAPTING COMMON LAW TECHNIQUES TO INTERNATIONAL ARBITRATION .........7 A. CULTURAL DIFFERENCES ................................................................................................................................7 B. SPECIFIC CHALLENGES AND SUGGESTIONS ..................................................................................................7 4. CONCLUSION ....................................................................................................................................8

INTRODUCTION 1.

Lawyers from common law countries are used to aggressive, zealous, and even hostile cross-examination. In many cases, they may view an opposing witness as a pawn put in place and manipulated by opposing counsel. Not surprisingly, this inculcates a warlike mentality, in which the witness is an enemy who must be defeated at all costs.

Lawyers from civil law countries are, not surprisingly, shocked and often appalled by this attitude. In the civil law tradition, witnesses are widely respected individuals who are performing a valuable service for the court. The rude or aggressive questioning of a witness is considered highly inappropriate, even ‘barbaric.’

This Practice Guide is provided for informational purposes only and should not be considered legal advice.

PRACTICE GUIDE Prepared by David Coddon, November 8, 2013 CODDICOMM CONSULTING LLC countries may be confused or offended by aggressive cross-examination, and witnesses might feel mistreated. 4.

Given this, the challenge for lawyers from common law countries is to adapt the techniques they have learned to a culture that is not used to aggressive crossexamination. Generally, most of the tactics developed and practiced by common law lawyers are equally applicable in an international arbitration setting. There are, however, certain adjustments that must be made.

This PRACTICE GUIDE gives general advice on cross-examination from a common law perspective and discusses how to adapt this advice to international arbitration.1

1. DIFFERENT APPROACHES TO THE TAKING OF EVIDENCE A. Common Law 6.

Most common law countries follow the adversarial approach to the taking of evidence. Each party presents its version of the underlying facts to the trier of fact (the jury or the judge), which then determines whose version is closer to the ‘truth.’

This system relies on the parties themselves to produce evidence and establish the underlying facts. Each party calls and examines its own witnesses and experts, and then is given an opportunity to examine its opponent’s witnesses and experts. The questioning of witnesses is almost always done orally. The judge is a largely passive observer, whose role is limited to ensuring that the parties comply with applicable evidentiary rules. The judge will rarely, if ever, take an active role in the process.

In theory, the adversarial system should expose bias, deceit, and ulterior motives by allowing each party to systematically challenge its opponent’s version of the facts. Through the strict application of evidentiary rules, moreover, the court can ensure that this process is fair, transparent, and reliable. B. Civil Law

Most civil law countries, on the other hand, follow the inquisitorial approach. The judge takes the lead role in investigating and determining the underlying facts. The parties and their representatives merely assist the judge in the performance of this task.

This discussion draws on Lawrence W. Newman and Ben H. Sheppard, Jr., Take the Witness: CrossExamination in International Arbitration, JurisNet, LLC, 2010, which provides an excellent overview of the topic.

This Practice Guide is provided for informational purposes only and should not be considered legal advice.

PRACTICE GUIDE Prepared by David Coddon, November 8, 2013 CODDICOMM CONSULTING LLC 10.

The judge appoints and examines witnesses and experts. Unlike the adversarial system, which relies on the oral examination of witnesses, the inquisitorial system places much more emphasis on written witness statements. Moreover, because the judge takes the lead in the questioning of witnesses, evidentiary rules play a much less important role in the inquisitorial process.

11.

In theory, this approach should allow the court to determine the ‘objective truth.’ By taking power and control away from the parties, and giving it to the court, the system should prevent parties from planting ideas in witnesses’ heads and using ‘tricks’ to manipulate the process. C. International Arbitration

12.

International arbitration often involves parties, lawyers, and arbitrators from common law and civil law backgrounds. As such, the fact-finding process usually involves a blend of the adversarial and inquisitorial approaches.

13.

Whether this ‘blend’ reflects an equal balance of the two approaches, or is tilted in favor of one or the other, is determined on a case-by-case basis. The general rule is that, unless the parties agree otherwise, the arbitral tribunal has broad discretion to determine the applicable rules of evidence, subject to due process and public policy requirements. Under Article 19 of the Model Law on International Commercial Arbitration:

14.

[…] the power conferred upon the tribunal includes the power to determine the admissibility, relevance, materiality, and weight of any evidence.

15.

In addition, there are transnational rules and guidelines, such as the IBA Rules on the Taking of Evidence in International Arbitration, that the parties may adopt, in whole or in part.

2. A PRIMER ON CROSS-EXAMINATION A. Definition and Significance 16.

Cross-examination is “the questioning of a witness at a trial or hearing by a party opposed to the party who called the witness to testify.” There are four defining features: (i)

It is an oral procedure. The use of written questionnaires does not constitute cross-examination.

(ii)

It is conducted by counsel. An examination conducted by a judge or arbitrator is not a cross-examination.

This Practice Guide is provided for informational purposes only and should not be considered legal advice.

PRACTICE GUIDE Prepared by David Coddon, November 8, 2013 CODDICOMM CONSULTING LLC (iii)

The witness has been called by the other party. The main feature of cross-examination is that one party is questioning the other party’s witness.

(iv)

It is conducted during the dispositive phase of a trial. This excludes pre-trial depositions.

17.

Common law systems make a fundamental distinction between direct examination and cross-examination. ‘Direct examination’ is when a party questions its own witness. The purpose of direct examination is to adduce evidence in the most natural and reliable way—through the mouth of the witness with little or no interference or influence from the lawyers. The judge’s role is to ensure that the lawyer is not “putting words in the witnesses’ mouth.” Accordingly, ‘leading questions’ (i.e., questions that suggest a desired answer) are not allowed on direct examination. They would give the lawyer too much control over the witness and allow him to manipulate the testimony.

18.

On the other hand, ‘cross-examination’ is when a party questions a witness who has been called by the opposing party (an ‘adverse witness’). In this case, not only are leading questions allowed, but, as a matter of strategy, an effective cross-examiner should only ask leading questions. This will allow him to control the witness and tell his party’s story.

19.

In the United States, the right to cross-examine a witness is sacrosanct—arguably on a par with freedom of speech or the right to vote. It has been called the ‘great engine of truth’ and is enshrined in the constitution, which establishes the right of a criminal defendant to confront adverse witnesses. Indeed, the prohibition against hearsay evidence, which forms the heart of the Federal Rules of Evidence (“FRE”), is mainly based on the need to preserve cross-examination.

20.

Cross-examination allows parties to challenge the credibility of adverse witnesses. It does so by exposing possible bias, confusion, error, or ignorance. Moreover, it helps combat problems associated with witness perception and memory. B. Strategic Advice from a Common Law Perspective

21.

Given the importance of cross-examination, it is not surprising that most common law lawyers have been taught the virtues of zealous, even hostile or confrontational, crossexamination. This approach to cross-examination has also been influenced by movies and television shows that feature heroic attorneys who expose corrupt and deceitful witnesses through brilliant cross-examination.

22.

Generations of trial attorneys in the United States have been taught the “ten commandments of cross-examination.” These ‘commandments’ were originally

This Practice Guide is provided for informational purposes only and should not be considered legal advice.

PRACTICE GUIDE Prepared by David Coddon, November 8, 2013 CODDICOMM CONSULTING LLC written by Irving Younger, a distinguished professor and legendary master of the art of cross-examination. They have undergone various iterations throughout the years, but, whether they are called ‘commandments,’ ‘guidelines,’ ‘principles’ or ‘techniques,’ the fundamental advice is the same and has been almost universally embraced and followed by accomplished trial attorneys. 23.

Ben H. Sheppard, a distinguished cross-examiner in his own right, has written eight ‘techniques’ of cross-examination that essentially restate Younger’s commandments but are adapted to a modern audience.2 All of these techniques serve a common purpose: controlling the witness and telling your party’s side of the story: (i)

Be Prepared. i. Determine the objective of cross-examination (discredit witness's testimony? use witnesses' testimony to corroborate favorable testimony of other witnesses?) ii. Identify key points you want to make and determine how crossexamination will help you make them. iii. Make an outline of all questions. Streamline the outline so that you can adjust as needed. iv. Be prepared to contradict ‘wrong’ answers by pointing to contradicting documents.

(ii)

Ask Leading Questions. These help the attorney control the witness through a series of short "questions" that are really simple statements of fact. i. Ask questions that must be answered 'yes' or 'no' and avoid open-ended questions (i.e., avoid who/what/when/where/why questions). ii. Do no let the witness explain his testimony. iii. Vary the form of leading questions to avoid monotony. There are three forms of leading questions that may be used: 1. A statement of fact with slight inflection of voice ("you attended the shareholder's meeting?")

Ben H. Sheppard, “Taking Charge: Proven Tactics for Effective Witness Control,” in Newman and Sheppard, Jr. This Practice Guide is provided for informational purposes only and should not be considered legal advice.

PRACTICE GUIDE Prepared by David Coddon, November 8, 2013 CODDICOMM CONSULTING LLC 2. Questions that end with "is that correct," "yes," "right, "true." (“you attended the shareholder's meeting, is that correct?”) 3. Questions ending with a contraction of the operative verb ("you attended the shareholder's meeting, didn't you?”) (iii)

Only ask questions to which you already know (and can prove you know) the answer. If you do not know the answer, and the answer could possibly hurt your case, do not ask the question.

(iv)

Ask clear, simple questions. i. Keep questions brief and to the point, and use plain language. ii. Avoid complicated grammatical constructions. iii. Remember who the audience is (if a jury, explain in clear language without being patronizing). iv. Know who the judge or arbitrator is and what they expect. v. Cover one fact in each question. vi. Be Patient; Take 'Baby Steps.’

(v)

Do not let the witness merely repeat direct testimony. This will waste time and will only emphasize and possibly strengthen their direct testimony.

(vi)

Do not quarrel with the witness. This is ineffective and it risks alienating the trier of fact.

(vii)

Save the Argument for Closing. i. Once you make a point, move on! ii. Do not allow the witness to correct or explain himself. iii. Let the cross-examination speak for itself (i..e, if done correctly, the trier of fact will draw the conclusions you want them to, so there is no need to spell it out for them).

(viii)

Use Cross-Examination to Highlight Favorable Documents. Simply read the passage and only ask if you have read the words correctly.

This Practice Guide is provided for informational purposes only and should not be considered legal advice.

PRACTICE GUIDE Prepared by David Coddon, November 8, 2013 CODDICOMM CONSULTING LLC 3. ADAPTING COMMON LAW TECHNIQUES TO INTERNATIONAL ARBITRATION A. Cultural Differences 24.

Lawyers from common law countries are used to aggressive, zealous, and even hostile cross-examination. In many cases, they may view an opposing witness as a pawn put in place and manipulated by opposing counsel. Expert witnesses are often considered nothing more than ‘hired guns,’ often in the pay of big corporations and insurance companies who have essentially ‘bribed’ them to lie to the court. Not surprisingly, this inculcates a war-like mentality, in which the witness is an enemy who must be defeated at all costs.

25.

26.

As a cultural matter, international arbitration is largely in line with the civil law approach. Even when the tribunal has adopted common law cross-examination procedures, the conduct of the arbitration will normally be much more collegial, polite, and ‘low key’ than a typical trial in a common law court. Arbitrators from civil law countries may be confused or offended by aggressive cross-examination, and witnesses might feel mistreated. B. Specific Challenges and Suggestions

27.

28.

In addition to the basic techniques discussed above, advocates from common law countries should keep the following advice in mind: (i)

Cross examination should be conducted in a civil and respectful manner.

(ii)

An advocate should rarely plan on making his case by crossexamination.

This Practice Guide is provided for informational purposes only and should not be considered legal advice.

PRACTICE GUIDE Prepared by David Coddon, November 8, 2013 CODDICOMM CONSULTING LLC (iii)

The advocate should be prepared for an unexpected answer. In international arbitration, there is a relative lack of control over a witness’s answers. Unlike common law litigation, in which a witness is “locked in” by sworn testimony in deposition, and there is plenty of adverse information available from discovery, civil law systems involve written statements that are carefully crafted by lawyers. Moreover, arbitrators are less willing than most common law judges to discipline witnesses who are being evasive.

(iv)

While it is still important to use plain language, advocates must not ‘dumb down’ language. Unlike juries, international arbitrators are typically sophisticated neutrals who will not enjoy such questioning.

(v)

Due to added time pressures, it is even more important to keep questions short and to the point.

4. CONCLUSION 29.

Lawyers from common law countries, who have spent years internalizing the idea that aggressive cross-examination is an essential tool of effective advocacy, must make several substantive and stylistic adjustments when appearing before an international arbitral tribunal. Above all, they must adapt the time honored techniques discussed above to a culture that generally places greater value on civility and written witness statements.

This Practice Guide is provided for informational purposes only and should not be considered legal advice.