Philippe Pinsolle, Quinn Emanuel Urquhart & Sullivan
This is an extract from the fourth edition of GAR’s The Guide to Advocacy. The whole publication is available here.
As a right to cross-examine a witness or expert generally does not exist in the civilian tradition of civil procedure (although some right may exist in criminal procedure), an advocate trained in civil law is likely to be unfamiliar with the concept of cross-examination. This, one may conclude, would cede an important advantage in international arbitration to trained advocates trained in common law. Not true. Cross-examination can be learned through experience and observation, and civil law-trained lawyers, just like common law-trained lawyers, can be quite effective at this exercise if they learn properly by watching others. Cross-examiners are found equally among the ranks of lawyers trained in both the civil law and the common law traditions.
This chapter seeks to explain how a civil law-trained practitioner may approach the techniques of cross-examination. It is based on real situations observed in real arbitrations and – it is hoped – provides practical advice to those civil law practitioners wishing to engage in cross-examination and will help common law arbitrators to understand certain idiosyncrasies of cross-examination conducted by civil law lawyers.
It has been said that the components of a successful cross-examination are to (1) understand its purpose, (2) prepare thoroughly, (3) select the right witnesses to cross-examine, and (4) execute well.While this chapter is not divided quite along those lines, these four points, which reflect common sense, underlie the themes addressed.
Fact witnesses – what not to ask
Cross-examination of factual witnesses should be focused on the key points in dispute and factual evidence within the knowledge of the witness. Common pitfalls include:
– Hilary Heilbron QC, Brick Court Chambers
- attempting to cross-examine on every single point in the case rather than confining the questions to the main disputed issues. Notify the tribunal in advance that is what you are doing, so no point can be taken that a subsidiary issue was not put to a witness;
- asking a witness what he or she thinks another person meant when writing a letter or a document. This is no more than conjecture and not evidence;
- asking a witness to construe words in a contract – that is for the tribunal; and
- asking hypothetical questions that are ex hypothesi not evidence.
Determining whether to cross-examine a witness
An advocate must first decide whether a witness should be cross-examined at all and, if so, on which topics. A key factor in making this decision is whether the applicable procedural rules, often found in Procedural Order No. 1, provide that the failure to cross-examine implies acceptance of the witness statement’s content, or the opposite. In the former case, it will be difficult to avoid cross-examination. In the latter, the question is more delicate, bearing in mind that to not cross-examine any witnesses at all or not cross-examine a key witness or expert is probably a bad idea. That said, there are cases where one party chooses, for tactical reasons, to multiply the number of witnesses or experts on the same topic. In such cases, it may be judicious to choose to cross-examine only some of them.
Given that international arbitration often operates on a chess-clock system, choices probably need to be made as to which witnesses are worth cross-examining.
There are four types of factors that an advocate should consider when selecting which witnesses to cross-examine.
There are certain technical consequences that flow from the decision not to cross-examine a witness. These consequences can be referred to as ‘hard’ consequences and must be taken into account when making the decision to cross-examine or not. Depending on what Procedural Order No. 1 (or its equivalent) provides, the content of the witness statement may or may not be admitted automatically, the arbitral tribunal retaining the discretion to weigh the probative value of the testimony. If the rule is unclear, it is worth seeking clarification with the tribunal prior to taking the decision to cross-examine, or not.
Make sure the tribunal knows where you are heading
In conducting cross-examination, it is good practice to let the tribunal know from the outset what the main goal for each line of questions is and how these questions aim to support your broader case. A road map of the cross-examination themes would also be helpful for arbitrators. It is not unusual that tribunals will ask counsel in the course of their cross-examination to explain where they are going with a particular line of questions and how many more questions they have. Counsel tend to give a road map of their opening and closing statements but not of their cross-examination, which can be puzzling. It is unhelpful for tribunals to sit through hours of cross-examination, the broader aim of which may not always be obvious. Relatedly, counsel should be mindful that some civil law arbitrators who are not familiar with common law practices may not necessarily fully appreciate, or indeed understand, how cross-examination works. By letting arbitrators know of the main aim and structure of their questions, counsel can keep arbitrators engaged throughout the cross-examination.– Stavros Brekoulakis, 3 Verulam Buildings
An equally important consideration relates to the background and personalities of the arbitrators. Here, it must be borne in mind that, given his or her training and experience, more senior common law arbitrators may be more likely to draw an adverse conclusion from the decision not to cross-examine a witness than a civil law arbitrator may be. However, this does not mean that civil law arbitrators give less weight to cross-examination. Most will have extensive experience in international arbitration and, therefore, will be very familiar with the procedure. For example, as arbitrator, I consider cross-examination to be a very important component of the process of evaluating witness or expert evidence.
An advocate should further consider the number of witnesses testifying on behalf of the opposing party and the time available to cross-examine them. Regardless of how time is allocated between the parties, it is not unlimited during a hearing. As always, the advocate should focus only on what is most important. Alternatively, the advocate may seek not to cross-examine a witness in the hope that the arbitral tribunal will not unduly focus on their witness statement if it does not hear them at the hearing.
Avoid harassing or needlessly embarrassing a witness
Tribunals appreciate counsel who maintain a respectful, moderate tone throughout their cross-examinations. Harassing or needlessly embarrassing a witness will not sit well with the tribunal. In fact, an overly aggressive approach may lead the tribunal to sympathise with the witness – an outcome that is best avoided. I was involved once in a hearing where a witness broke down in tears in response to unnecessarily hostile questioning. Even though the questioning exposed a falsehood in his witness statement, some members of the tribunal did not focus on that falsehood because they were distracted by the unpleasantness experienced by the witness.– Stanimir A Alexandrov, Stanimir A Alexandrov PLLC
When multiple witnesses testify on the same topic, an advocate may be tempted to cross-examine only the ‘weakest’ witness. This may well work, if the weakest witness can be identified. However, if time allows, another possibility is to cross-examine them all. This is because the tribunal’s decision on that topic is likely to be driven by the lowest common denominator. A key rule is to never return to a topic that has been successfully explored with a previous witness. When two witness statements overlap and a satisfactory answer has been obtained on a given topic when cross-examining the first witness, it is generally not a good idea to broach this topic again with the second witness. At best, the second witness will merely confirm the answer of the first witness. At worst, the second witness will give a different answer, thus confusing the record on a point that had initially been scored.
First, as has been noted by others, the single most important components of preparation are rigour and thoroughness. The famous golf professional Gary Player is reported to have said: ‘The harder I practise, the luckier I get.’ The same applies to preparation for cross-examination: there is simply no substitute for hard work. Knowing the file perfectly will enable the cross-examiner to navigate between topics.
Second, and this is directly linked to the previous remark, an advocate should keep in mind that cross-examination is not, and cannot be, a linear exercise. The facts and the arguments do not proceed linearly, and the advocate should therefore be prepared to think laterally or, more exactly, according to a matrix system. One question on a given topic may lead to another interesting topic, and a good cross-examiner has the ability to open a parenthesis, explore this second topic, and then come back to the initial topic. For this reason, I find it much more effective to prepare topics instead of questions. An advocate will only be able to ask clear and cogent questions if he or she has a clear and cogent understanding of the topics and the facts. An effective way of doing so is by visualising the case through a matrix with the arguments and facts for each topic.
Third, a civil law-trained practitioner should make sure to practise formulating questions. On cross-examination, questions should, in principle, be closed, leaving as little leeway as possible to the witness. At the same time, the question should lay the groundwork for a future question, which the advocate should always attempt to anticipate. It is particularly important for the civil law-trained advocate to practise this technique, as he or she will probably not be as familiar with it as the common law-trained advocate. That said, the exercise is not mechanical, and it is simply wrong, for example, to say that you should ask questions only if you know the answer to them. A seasoned cross-examiner can go fishing with a lot of success.
Fourth, an advocate should remember that his or her preparatory materials should include much more than the witness’s witness statement. If the witness is an expert, be aware of that expert’s works. If the witness is a fact witness, be prepared to engage the witness on a broader factual matrix than the scope of the witness statement (or statements), and be familiar with documents on record that concern this witness, even though no questions may be asked on point.
Finally, an advocate should clearly identify in advance the points that he or she needs to score in the cross-examination, and never lose sight of these points. Only once this strategy has been clearly defined can the advocate make a realistic judgement about whether a point has been scored (or cannot realistically be scored) and move to the next.
Approach and style
Each advocate has his or her own approach to, and style in, cross-examination, and none is necessarily better than another. There are enormous differences even among common law-trained practitioners – for example, between the styles of US-trained and England-trained lawyers. The question really comes down to how an advocate wishes to be perceived. However, there are a few key parameters within which advocates must operate if they are to perform an effective cross-examination.
How to deal with clear untruths
Whether the arbitration is held under common law or civil law rules, it is depressing, but no longer surprising, to see how often the witness statements of fact witnesses contain deliberate untruths, as do their responses to cross-examination questions. (It is even more depressing that some supposedly reputable lawyers have had a hand in these witness statements.)
One objective of cross-examination of fact witnesses is, of course, to reveal at least some of these untruths. This is generally accomplished by putting before the witness documentation or other witness statements from the same side that contradict the testimony. A laundry list of lies is not necessary, as revealing just a few key untruths will generally lead arbitrators, especially common law arbitrators, to discredit other contentious points made by that witness.
However, a second objective of cross-examination that is often ignored is using an opposing witness to lend support to points in your own side’s favour. Even the most carefully crafted witness statement can yield valuable support to facts that buttress the position of the other side, and self-incrimination is extremely difficult to counter.
Civil law arbitrators and cross-examination – a conundrum
There are two important differences between cross-examinations before common law and civil law arbitrators. First, in general, civil law arbitrators are more inclined to consider it normal that witnesses with an interest in the matter at hand will not necessarily tell the truth, and these arbitrators may be less influenced by a cross-examination that reveals such untruths than a common law arbitrator would be.
A corollary of this first point is that civil law arbitrators tend to give great credence to documentary evidence and to favour such evidence over contradictory oral testimony. At the same time, civil law arbitrators can be more reticent than common law arbitrators to permit a document production exercise that would result in the disclosure of relevant documents. This is a circle that must be squared to the greatest extent possible.
The second difference between civil law and common law arbitrators is that the civil law arbitrator tends to be more protective of the serenity of proceedings and of the dignity of a witness on the stand. A harsh tone, raised voice, or insulting comments by the cross-examiner may lead the civil law arbitrator to become protective of a witness, which is quite the opposite of what cross is intended to accomplish.
In sum, because cross-examination is an art, not a science, the lawyer/artist questioner had best be ultra-sensitive to colours, style, brush stroke and even the frame of the painting that they hope the arbitrator will admire.– Stephen Bond, Covington & Burling LLP
First, advocates must ensure they control the witness at all times. A cross-examination is by design an uneven exercise, and the cross-examiner has the advantage. This is because the advocate is the only one entitled to formulate the questions and the witness is more or less blind as to where the advocate is heading with the next question. The advocate must make sure never to give up this advantage. Too often arbitrators see advocates not being able to control their witness and this produces a disastrous impression.
Pick up on the tribunal’s signals
The key consideration when dealing with witnesses is credibility. As counsel, it can be extremely frustrating to feel that the tribunal is not ‘getting’ your witness, or not appreciating how your brilliant cross-examination of a witness undermines his or her evidence. And for a tribunal, it can be frustrating and even painful to watch a witness taken through endless evidence that the tribunal sees as pointless.
Often the full scope of the failure to engage the tribunal will only be apparent when the award is issued, and it’s too late to do anything about it then. Obviously, it is the duty of an advocate to try to engage the tribunal with all parts of the evidence that are relevant. At the same time, counsel can and should help themselves by being more alert to subtle (and not-so-subtle) signals from the tribunal that it is time to move on. Good counsel should be able, and would do well, to be more focused on picking up signals as to which direction the tribunal is heading earlier on, when there is still time to do something about it.– Jackie van Haersolte-van Hof, London Court of International Arbitration
Second, it is essential that the tribunal can follow the advocate’s line of questioning. An advocate should never forget that the ultimate audience is the tribunal, and the advocate’s behaviour and framing of questions should be directed at persuading the tribunal. At the very least, the advocate should make sure that the tribunal does not get lost along the way. In this respect, I consider a relaxed style, with perhaps a little touch of humour, to be the most effective. In my experience, it is counterproductive in international arbitration to be too aggressive. If an advocate is too harsh with a witness, a tribunal may be inclined to try to rescue that witness.
Third, an advocate should recognise that his or her task is to elicit the aspects of the testimony that have been prepared and contrast those aspects with the parts that have not been prepared. Significant resources are poured into international arbitration cases and a tribunal is likely to assume that a witness has been prepared. Quite often, the clarity and style of an answer will differ depending on whether the answer has been prepared, or not, and the tribunal will pick up on this.
Making use of witness statements
A witness statement is the written testimony of the witness and usually forms the basis of a cross-examination. Therefore, the first issue to check, again in Procedural Order No. 1 or its equivalent, is whether the cross-examination is restricted to the content of that statement. This will help the advocate frame the approach to the questioning. If the rule is unclear, an option is to seek clarification, but another tactic is to say nothing, and wait to see whether the opposite side raises an objection.
On objections‘The wise advocate keeps objections to the minimum’
Why do some advocates in arbitration insist on recording objections ‘for the record’? There is no appeal on the merits in arbitration, and arbitrators’ findings of fact are definitive. There is therefore no point in this habit; it can only annoy the tribunal. Some advocates who have inadequate trial experience make astonishingly foolish objections, such as complaining that a cross-examiner has asked a ‘leading question’. Cross-examination is all about leading questions such as: ‘Everything you wrote in this latter is untrue, isn’t that so?’
The wise advocate keeps objections to a minimum, perhaps ever so slightly rolling his eyes to show the tribunal that his opponent is wasting time by asking questions of his own witness that suggest the answer – ‘You took that precaution because you had learned that this person could not be trusted, is that right?’ – or asking improper questions of an adverse witness – but there will be no objection because the tribunal is wise and will give little weight to the product of poor questioning, so there is no need to use precious time by objecting. None of this means that proper objections should be suppressed when they make a difference, such as lack of foundation (‘She has never seen that document.’), privilege (‘This calls for revealing confidential legal advice.’) and harassment (‘He has answered that question twice already.’).– Jan Paulsson, Three Crowns LLP
An advocate must in any event decide how to use the witness statement. As already mentioned in the section on Preparation, I do not consider a cross-examination to be a linear exercise, and am accordingly not inclined to go through a witness statement from beginning to end. As also mentioned above, an advocate should form a clear idea of which points need to be scored from a particular witness. The clearer the objective of the cross-examination, the easier it will be for an advocate to choose which topics to focus on, from what can be quite a lengthy witness statement.
Finally, an advocate should keep in mind that witness statements are usually drafted by lawyers, and the language, while not necessarily false, will have been carefully considered. A witness will usually be more straightforward in a hearing, and the lawyer’s spin in drafting the statement may be exposed. An advocate should therefore elicit the lawyer’s phrasing and, to the extent that an answer in cross-examination differs from the witness statement, an advocate should be prepared to point that out immediately.
Handling and presenting documents
There are two purposes to handling and presenting documents in cross-examination.
The stated purpose is to confront a witness with a document to verify the accuracy of that witness’s testimony.
The collateral purpose, which an advocate should always keep in mind, is to present the tribunal with a series of documents in chronological order with the witness’s commentary. The effect of doing so will be to establish in the tribunal’s minds a certain impression about the sequence of the relevant facts, the credibility of the witness, the documentary record and the questions that the tribunal must decide. Perhaps more importantly, this exercise will force the tribunal to read the most important documents both in context and in chronological order.
The impression that an advocate wishes to create in the tribunal’s mind should be well thought out in advance, because it will influence what kind of questions he or she will ask, and it forms part of the preparation process described above. If the advocate is well versed and clear on the objectives of the cross-examination, the documents, the facts, the issues and the submissions, including the witness statements, then he or she will be able to ask the types of questions that will create the desired impression in the tribunal’s mind. Some of those questions will be directed at the witness’s opinion about documents, and others will concern background and context. Those questions only become clear to advocates once they clearly understand the objective.
Equally important is the handling of documents. I consider it a good habit to always give a copy of a document to a witness (both in the original language and a translation, if necessary), to avoid a future objection. I find it most helpful to collect these documents in a witness bundle that can be organised by topic and chronologically. A witness bundle makes it as easy as possible for the tribunal to follow the documentary record and can be a useful tool in deliberations.
Making and dealing with objections
Objections are another specific feature of cross-examination with which civil law lawyers may not be familiar. The first point to keep in mind when making objections is that they are a tactical tool, and can be used to disrupt the opposing counsel’s cross-examination. However, an advocate should be sure to make only technically justified objections. Doing otherwise will jeopardise the credibility of the advocate, who may lose the sympathy of the tribunal.
There are at least two instances in which an objection is appropriate. First, an objection can be used defensively when a witness is caught in a difficult position. Second, an objection may be used offensively when the tribunal is becoming irritated with a cross-examiner’s line of questioning. In the latter case, a good advocate will detect when the tribunal is likely to intervene and will refrain from making the objection. It is always preferable that the tribunal intervene in a spontaneous fashion. Regardless of the intended function of the objection, the use of objections should be scarce, as too many objections will produce an opposite effect to that sought.
Finally, there is the question of how to make an objection. My personal preference is not to interrupt the lawyer asking the questions, as it may be perceived as aggressive and could even lead to a shouting match between counsel. Rather, I prefer to wait until the lawyer has finished asking the question and then to make the objection directly to the tribunal.
Advocates should also expect to receive objections to their questions. While a seasoned lawyer may have more flexibility in asking questions, as long as that flexibility is not abused, junior lawyers will be held to very strict standards. Nonetheless, junior advocates should not become too rattled by objections. Rather, they should always keep in mind that the game of making objections is a tactical one.
To avoid being flustered by an objection, the advocate should understand that there are options. First, if the objection is technically justified, the advocate should quickly concede the point and move on. Second, if the objection is not justified, the advocate has further options: he or she can either ignore it or raise it with the tribunal (not the other side) by enquiring whether there was a problem with the question or whether the tribunal wishes the question to be reformulated.
A difficult witness can come in different forms. There are witnesses from whom there are not many points to score, either because there is not much to ask or because they are very well prepared. An advocate may find himself or herself unable to score many points with the opposing side’s key witness. In this case, an advocate should simply do his or her best and stick to easy points. A good cross-examiner will realise quickly whether a particular witness is likely to lead to useless testimony but will nonetheless test that witness sufficiently prior to making the decision to give up. This is because witnesses who have been well prepared may nonetheless lower their guard after some time in cross-examination. That point must be tested prior to deciding to stop the exercise.
Another type of difficult witness is the combative witness, who will seek to give long, monologue-like answers, or aggressive answers. An advocate should not fear to politely and courteously admonish the witness. For example, in response to an evasive answer, an advocate might say: ‘The question was whether or not you received the letter on 5 April, and I still expect an answer.’ An effective way to deal with a long-winded answer is to ask the witness whether he or she still remembers the question.
It is the advocate’s responsibility to control the situation. However, in the event that the advocate cannot control the witness, the last resort is for the advocate to appeal politely to the tribunal for an intervention.
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