Anne Véronique Schlaepfer and Vanessa Alarcón Duvanel, White & Case LLP
This is an extract from the fourth edition of GAR’s The Guide to Advocacy. The whole publication is available here.
Formerly, a chapter discussing direct examination in international arbitration would have been seen as devoid of any interest, since direct examination is in most cases substituted by witness statements, the witnesses appearing at the hearing for the purpose of cross-examination and to answer questions asked by the arbitral tribunal. (Re-direct examination remains available, of course, but although its difficulty is often underestimated, it is hardly a controversial exercise.) Nowadays, direct examination is of renewed interest, as a result of various publications advocating the practice of oral direct examination at the hearing in place of witness statements, which are sometimes considered as pure-lawyer products and therefore useless to decide a dispute.
For the purposes of this chapter, we first review some of the main advantages and disadvantages of oral direct examination and witness statements. We then turn to the preparation and performance of oral direct examination and briefly address the preparation of witness statements since these also constitute, in the broad sense, examination in chief.
Advantages and disadvantages of oral direct examination and witness statements
One of the main advantages of international arbitration is that parties and arbitral tribunals are free to define the procedure as they deem fit for the case at issue.
Among other things, this means that parties and arbitral tribunals may organise their hearing as they see fit. In particular, they may decide whether witnesses will be heard and, if so, if direct examination will be conducted orally at the hearing or will be replaced by witness statements submitted in advance (with oral direct examination excluded or significantly limited).
Ideally, witnesses should testify in the language of the arbitration
To the extent possible, witnesses should testify in the language of the arbitration. If they are not fully conversant in that language, they should be assisted by a translator who will help them whenever necessary. Systematic translation (in particular consecutive translation) should be avoided as much as possible. You lose a lot in terms of content and understanding of the witness’s message. Counsel sometimes think that, for strategic reasons, it is better to have the witness testify in his or her native language. I firmly believe that this is wrong, as long as, of course, the witness is able to speak reasonably well the language of the arbitration.– Bernard Hanotiau, Hanotiau & van den Berg
Excessive freedom being often a source of anguish for human nature, practitioners have developed over the years the practice of submitting witness statements. These documents are meant to replace oral direct examination at the hearing. The witnesses are summoned to appear at the hearing only to be cross-examined by counsel representing the opposing party and to be asked questions by the arbitral tribunal. Counsel for the party that submitted the witness statements retains the option of asking questions in re-direct examination. This trend is reflected in the IBA Rules on the Taking of Evidence in International Arbitration:
The Parties may agree or the Arbitral Tribunal may order that the Witness Statement or Expert Report shall serve as that witness’s direct testimony.
This practice is currently being challenged by practitioners who support direct examination at the hearing as a more appropriate means for arbitral tribunals to determine the value and weight of the testimony given by the witness. Direct examination would allow arbitral tribunals to better understand the case at issue and would render the hearing more lively and interesting. Moreover, arbitral tribunals would remember more easily the story told in the witness’s own words than the content of often lengthy, and boring, witness statements written by lawyers. They would also be in a position to direct the witness to the issues that matter and avoid the irrelevant testimony often contained in witness statements. In short, the suggestion would be to abolish witness statements altogether and to replace them with direct examination.
By contrast, supporters of witness statements advocate their efficiency in significantly reducing the duration of the hearing and in providing clear explanations, formulated in a language that arbitrators understand.
Without entering into a lengthy discussion of the pros and cons of witness statements versus direct examination at the hearing, we consider it useful to highlight the following:
- Direct examination instead of witness statements may appear adequate in given cases, but it is unlikely to become the norm. Direct examination would more than double the duration of hearings (one would need to take into account the duration of the direct examination itself and the necessary time to adapt the cross-examination and the questions from the arbitral tribunal to the content of the explanations given in direct examination). Given the concerns expressed nowadays by parties as to the duration and costs of international arbitration, the future of direct examination at hearings does not look particularly bright.
- The fact that arbitral tribunals would hear the explanations directly from witnesses in their own words (instead of reading a statement) is no guarantee that the explanations will be any clearer, more focused and relevant; and more lively. Counsel and witnesses who are confused when writing will probably not perform any better orally. This becomes even worse if they are not well prepared for the hearing. Moreover, the idea that arbitrators would be able to direct the witness to the relevant issues and be more efficient may prove theoretical, particularly in complex cases. Witness statements help arbitral tribunals determine in advance which aspects of the dispute are known to the witnesses, their field of expertise, etc. This preparatory work, which allows arbitral tribunals to identify in advance relevant questions, is not possible (or at least is made more complex) without witness statements.
- Not all witnesses are fluent in the language of the arbitration and interpretation is often unprecise, especially when the testimony relates to complex technical issues. The advantage of hearing a witness’s own words is seriously reduced if the witness has difficulty finding the right words or needs an interpreter.
- As to the criticism that witness statements are merely documents drafted by lawyers and therefore of no evidentiary value, in most cases this is incorrect. Even if counsel is involved in the drafting of a witness statement, the ideas and the knowledge are (or should be) those of the witness. Often, the latter’s personality transpires through the text of the witness statement. In short, witnesses are not puppets and witness statements should reflect what they have to say about the case at issue. Otherwise, the risk is significant that their oral testimony during cross-examination will differ from their witness statement, even if the cross-examiner is not particularly talented. A witness statement that does not reflect the witness’s ideas and understanding of the case is a recipe for failure. If done seriously, preparation of witness statements is actually part of the hearing preparation.
- There is nonetheless another reason that would militate in favour of some direct examination. Arbitral tribunals often test witnesses’ credibility and the reliability of the explanations contained in their witness statement during cross-examination and by their own questions at the hearing. If a witness is not called to be cross-examined, there is a risk that the written testimony will be forgotten, especially if several other witnesses are heard during the hearing. It may therefore be a strategic decision not to call a witness for cross-examination. Moreover, it may also be interesting to hear a witness speak ‘freely’ about specific issues before being cross-examined. This is why some arbitral tribunals allow limited direct examination before cross-examination, even if a witness statement has been submitted.
The value of direct examination
In my experience, it is usually a good idea to conduct a direct examination. The tribunal can benefit from hearing the witness make his or her main points in his or her own words.
A brief direct examination is usually sufficient to remind the tribunal of the witness’s main points and to allow the tribunal to begin to assess his or her credibility.– Stanimir A Alexandrov, Stanimir A Alexandrov PLLC
A missed opportunity
Written witness statements may save time and money, but to the extent they fully supplant oral direct testimony, they come at a price. As much as a witness may have been rehearsed in anticipation of oral direct testimony, he or she nevertheless speaks directly to the tribunal and creates an immediate impression of veracity and persuasiveness – or not. All that is lost in a written witness statement whose authorship might well be counsel’s, not the witness’s. Yes, even with written witness statements, witnesses perform orally on re-direct, but that may come a bit late.
As arbitrator, I frequently invite counsel to supplement their witness statements with brief direct questioning of up to 20 minutes so as to allow the witness to engage in at least a modicum of self-presentation and to underscore a few key testimonial points. To my surprise, counsel decline that invitation more often than not, giving the witness an opportunity to do nothing more than make one or more corrections or amendments to the witness statement.
This is a missed opportunity. I urge tribunals to issue such invitations and urge counsel to avail themselves of it.– George A Bermann, Columbia University School of Law
Determining whether to examine a witness or file a witness statement
Whether the testimony is made orally at the hearing or by means of a witness statement filed in advance, there are some key issues counsel needs to consider when selecting witnesses.
First, it is important to determine who knows what. It is not particularly wise to have an individual testify on a given subject when it is obvious that somebody else would be better placed to do so. Presenting a witness is a strategic decision. Counsel needs to identify the added value that the testimony will bring to the case, as well as the risks involved.
Second, it is necessary to check a witness’s recollection of the facts and understanding of the (for instance, technical) relevant issues. Counsel needs to listen to what the witness has to say about a given topic. Verifying that the witness’s memories match the documentary evidence is of key importance. Without any hint of bad faith, one’s recollection of facts or impressions might significantly differ from the record. If that is the case, this needs to be identified early on, before the decision is made to file the witness statement or to carry out a direct examination of the witness.
Third, even if a witness statement is filed, counsel needs to check whether the witness is able to orally address the issues at stake. (Even if there is no direct examination, the witness may have to do so during cross-examination or in response to questions put by the arbitral tribunal.) Is the witness convincing? Is the witness able to make a clear statement using words that arbitrators understand and to answer a question without volunteering information that is either not requested or, worse, damaging? Has the witness mastered the language of the arbitration?
These points need to be assessed before the decision is made to select a witness.
The purpose of direct examination and witness statements
The purpose of direct examination and witness statements is to convince the arbitral tribunal that the position of the party presenting the witness is correct. Hence, the testimony (be it oral or in writing) must be clear, coherent and consistent with other means of evidence on record.
As indicated above, even when witness statements are filed, the procedural rules may provide that a short direct examination of the witness may take place. In most cases, the duration is limited; it is often no longer than 30 to 45 minutes. In such cases, it is for counsel to determine whether to perform any direct examination and, if so, on what issues.
The 10-Minute Rule
All too often, counsel will agree that written witness statements ‘shall stand as witness’s evidence in chief’.
Of course this saves time. But spending 10 minutes with your own fact witnesses, taking them through the highlights of their testimony by direct examination will allow them to settle into an unfamiliar setting; remind (one hopes not introduce) the tribunal of the highlights of their testimony; and create (one hopes) a favourable impression.
In the case of experts, wise counsel will seek a provision in Procedural Order No. 1 to allow an expert 15 to 20 minutes to provide an oral overview of how he or she approached his or her report; to highlight the important conclusions reached; and to indicate important reasons why there is disagreement between experts of the same persuasion. The effect is to remind the tribunal of the essentials of the expert’s report.– J William Rowley QC, Twenty Essex Chambers
Address embarrassing facts in direct examination
With the generalised use of witness statements, the importance of direct examination is often underestimated. It is a serious mistake. When discussing with the arbitrators the presentation of evidence at the hearing, counsel should always insist on a short direct examination of at least 15 minutes. As a warming-up exercise, direct examination is indispensable. Lawyers with an experience of being cross-examined limited to mock cases have no idea of the stress of the person giving evidence for the first time. The bull entering the fighting arena knows the feeling. Answering some questions from a known and friendly face before being put on the grill is always comforting. Second, when counsel is aware of facts that may be embarrassing for the witness, there may be an advantage in addressing them first in direct examination, so as to obtain explanations that the witness might be not able to give spontaneously in cross-examination. In any case, the cross-examiner will lose any effect of surprise that could have impressed the arbitrators and his or her task will be more difficult. It is particularly useful in matters of credibility.
I will never forget a construction case in which an engineer of the constructor had not indicated in his witness statement that he had divorced the daughter of the CEO of the owner seven years before starting his work for the constructing firm. In direct examination, counsel asked the witness: ‘Do you know Mr Smith, the CEO of the owner?’ The witness answered ‘Yes, he was my father-in-law for five years.’ Laughter in the hearing room. Then counsel asked: ‘Was he a nice father-in-law?’ Answer: ‘Very nice indeed, I like him very much.’ Next question: ‘Why did you not mention that fact in your witness statement?’ Answer: ‘Because it has nothing to do with this case.’ This was a good job. How could counsel for the other side then have raised the issue in cross-examination to suggest that his unfortunate marriage had left a grudge against his client in the witness’ mind?
This is an exceptional example, but the tactical approach may be reproduced in more ordinary situations: an embarrassing letter that is on the record and has not been mentioned so far, the existence of a meeting that the witness participated in and where decisions were taken that do not help your client, and so on. Yet, besides the issues of credibility or impeachment of the witness, which can be raised freely in cross-examination, a caveat is necessary depending on whether or not the scope of cross-examination has been limited by the arbitrators to the content of the witness statement. If not, do not hesitate: attack before being attacked. If it has been limited to the content of the witness statement, be prudent. You must assess whether the embarrassing fact can be linked with issues that the witness statement deals with. If not, refrain. Otherwise, you could open a window through which the cross-examiner could touch issues he or she is not authorised to entertain at the hearing.– Yves Derains, Derains & Gharavi
In some cases, procedural rules provide that direct examination must be limited to correcting errors contained in the witness statements or to addressing issues that could not have been addressed at an earlier stage. This may be the case, for instance, if new facts have arisen since the last filing of witness statements, or if some issues have been addressed for the first time in the opposing party’s last submission, without the witness being given the opportunity to comment on them in writing.
Quantum experts tend to be too long, too technical
Determining the quantum of a claim is a very complex exercise for the arbitral tribunal. It needs therefore to be assisted by the quantum experts and counsel as much as possible. The parties sometimes feel frustrated by the reasoning of the tribunal on quantum in the award. In the first place, they should blame their counsel and experts. Quantum experts tend to be too wordy, too technical and unable to clearly express their reasoning in terms that are easily understood by laymen, and this, even in the so-called didactic presentations before their cross-examination.
Counsel, on the other hand, tend not to include enough developments in their submissions, such as post-hearing submissions, on a clear, step-by-step presentation of their quantum claims. Substantial efforts should be made on both sides.
Tribunals should also request that quantum reports presented by the respondent should not be limited – as they often are – to a criticism of claimant’s quantum report but should always provide alternative calculations.
As for language, what I have said concerning translation of witness evidence is even more important in relation to expert evidence. Having a technical or quantum expert testify in a language other than the language of the arbitration is a big mistake, if not suicidal.– Bernard Hanotiau, Hanotiau & van den Berg
The scope of direct examination may also be a little broader and allow witnesses to address a few the key issues in their statements.
As long as direct examination is limited to correcting errors in a statement, it is not a very risky exercise. In fact, correction of errors is important and the witness should always be up front about them. In addition, correction may defuse the harmful effect of a line of questions on cross-examination designed to highlight the contradiction.
When it comes to addressing new points or to developing aspects addressed in writing in the witness statement, the difficulties linked to the conduct of direct examination should not be underestimated. Very often, one hears that direct examination is a good warm-up before cross-examination and a good opportunity to score points when the witness is still relaxed.
In reality, most witnesses are not relaxed at the beginning of their examination. Even if the question is put by the counsel they know, with whom they have been preparing for the hearing, it may not be that easy for witnesses to express themselves clearly at that specific moment. Hence, it is important to define before the hearing whether it is opportune to have any direct examination and, if so, to determine with the witness what questions will be asked and in which terms.
Moreover, arbitral tribunals do not appreciate direct examination that is a mere repetition of what is in the witness statement or that gives rise to unclear answers. In such cases, no points will be scored and the arbitral tribunal will mainly be waiting for the real exercise, namely the cross-examination.
How to prepare a witness statement – properly
The most careful written work that an advocate in international arbitration must handle is not the memorials, but rather the fact-witness statements, and, depending upon the expert witnesses’ experience, perhaps also their reports.
Much damage has been done to fact witnesses on cross-examination by counsel’s lack of care in the preparation of their written statements. The most disastrous such experience I have known as arbitrator was when a less-developed country respondent government chose to staff the case entirely with its own in-house lawyers. A key government witness on cross-examination was repeatedly questioned about each paragraph in his written statement, which was exceedingly strongly worded. At each paragraph, he was asked, ‘Did you really mean to say that?’, and each time he responded along the lines of, ‘Well, I would have preferred to say it less sharply.’ When finally asked, ‘If you didn’t agree with the language of your statement, why did you sign it, saying it was truthful?’, the witness turned, pointed to one of the government’s in-house counsel and exclaimed, ‘Because when he called me to come to his office to sign my statement, he said I had to sign it as is because it had already gone to the other party!’
Follow these rules:
- Have the witness write out his or her own statement first, in the witness’s native language (unless truly fluent in the procedural language(s) of the arbitration) after discussing its expected contents.
- Review it with the witness to ensure that it does what it is intended to do. Any revisions should be fully approved by the witness so that the statement truly represents his or her testimony. Only then can it be signed.
- Then have any necessary translations done and certified.
The ultimate goal is for the witness to be able to say that he or she wrote that witness statement himself or herself, that counsel then reviewed it with the witness, that any modifications were made with the full agreement of the witness, and thus that it was not ‘written by the lawyers’ and stands as the witness’s own statement. Period!– Charles N Brower, Twenty Essex Chambers
Incidentally, if witness statements are sometimes considered an additional submission made by lawyers, direct examination may create the same impression if the witness merely repeats words learned by heart during hearing preparation.
To sum up, if witness statements have been filed, direct examination must take place only when it is useful, for instance to correct an error, explain a document that is unclear, or complete the testimony, or when specific issues have arisen after the submission of the witness statements. A clear explanation given in direct examination may be powerful and prevent the same issue being addressed in cross-examination if the cross-examiner gets the impression that the point is settled and that nothing will be achieved by addressing it again.
Open or leading questions?It is critical to know the backgrounds of your arbitrators
Whether to ask leading questions if given an opportunity to conduct a direct examination is one of those questions where it is critical to know the backgrounds of your arbitrators. Common law lawyers are likely to view putting leading questions to a witness on direct examination as inherently unfair and improper. Even if they allow you to do it, they will discount the testimony, because they will consider it essentially to have been fed to the witness by the lawyer. Civil law lawyers are less likely to care, because they generally give less weight to witness testimony.– John M Townsend, Hughes Hubbard & Reed LLP
Performing direct examination
As has been indicated, in most cases, namely when witness statements have been filed, direct examination introduces the witnesses and, sometimes, shows that they have mastered the issues addressed in their statement. This may help form the arbitral tribunal’s opinion on the case.
Direct examination is the opportunity to bring the case to life with witnesses who are using their own words and expressions to bring a human face to the story. Studies of the psychology of decision-making have shown that first impressions will stay in the arbitrators’ mind and colour their reception of information heard later during cross-examination. To achieve this, direct examination must be dynamic, structured and meaningful. Counsel must showcase the witness and ask simple open questions. Put in simple terms, in direct examination, the witness must do the talking, not counsel, who should nonetheless maintain control over the substance of the testimony.
Clear, short, factual and direct questions help to control the witness. In particular, they prevent an overconfident witness from embarking on a long narrative answer covering many facts, which generally leads to more confusion than clarification for the arbitrators. The persuasive value of a testimony is diminished if the witness cannot remember the question at the end of a convoluted answer.
Contrary to what some practitioners believe, there is no rule that prohibits the use of leading questions in direct examination in international arbitration. However, leading questions are tantamount to oral argument by counsel. The arbitral tribunal may therefore assess the quality of counsel’s presentation, not the evidentiary value of the witness’s testimony. As a result, leading questions defeat the purpose of direct examination.
Counsel’s preparation for direct examination
In direct examination, lawyers must know the answers to their questions, which requires a good level of preparation.
Direct examination is the only witness examination that can be fully prepared in advance. Structure, knowledge and fluency are critical to efficient direct examination. Conversely, a lack of preparation may lead to a disorganised examination and more confusion for the arbitrators. Counsel’s preparation also impinges on the witness’s credibility and the persuasiveness of the testimony. To be adequately prepared, counsel should do the following:
- Identify the objective of the direct examination.
- Establish the key points that must be proven through the witness.
- Be clear about what the arbitrator should believe after hearing the witness.
- Identify which issues are worth addressing in direct examination.
- Study the documentary evidence and allegations contained in the submissions filed by the opposing party that relate to the witness’s testimony.
- Identify some key documents that may be commented on by the witness in direct examination.
- Structure the direct examination in a clear and convincing manner. Strong points should be at the beginning or the end of the direct examination, as arbitrators tend to remember best what they heard first and last.
- Keep the questions short and simple (one proposition per question). Questions in direct examination should be open-ended, to give witnesses the opportunity to express themselves. Witnesses, who are not led by the question, must be able to understand what is expected from them.
- Practise before entering the hearing room. For instance, conducting a mock examination may be useful. It is a good opportunity for counsel to adjust questions if they appear unclear and for the witness to make sure that he or she is able to convey the message clearly.
- Direct examination should be well rehearsed. Nonetheless, counsel needs to listen carefully to the witness to be able to react if a follow-up question is needed or if it appears that the witness is not performing under pressure as expected (which may imply that direct examination should be stopped).
In the event that no witness statements have been filed, the order of appearance of the witnesses is another important aspect of direct examination. When witness statements have been filed it is for the cross-examiner to define the order (taking into account contingencies such as the witness’s availability).
Witness preparation for the hearing
It is now generally admitted that lawyers in all jurisdictions may prepare witnesses. For instance, the IBA Guidelines on Party Representation in International Arbitration provide that a ‘Party Representative may . . . meet or interact with Witnesses and Experts in order to discuss and prepare their prospective testimony’.
In fact, in international arbitration witness preparation is not only permitted but considered a duty of the lawyer.
Testifying in an international arbitration is not something many people look forward to. In fact most potential witnesses are intimidated and stressed at the idea of being asked questions by lawyers and arbitrators. Pre-hearing preparation is therefore essential and should cover both the content of the examination and the witness’s familiarisation with the arbitration process.
If it is improper to tell witnesses what to say, counsel can assist them in preparing how to communicate persuasively what they know about the case.
First, it is important for the witness to review the witness statement and the documents relevant for the testimony. When these documents are too numerous, it is more realistic to ask the witness to focus on the key ones.
Second, counsel needs to meet the witness, explain how the hearing will be organised and discuss, of course, the content of the oral testimony. If counsel intends to refer to exhibits during direct examination, it is good to inform the witness in advance.
Third, counsel needs to evaluate how the witness performs orally. In fact, this should have been done before filing the witness statement. Even if no direct examination takes place, the witness is likely to face cross-examination. It is of the utmost importance to check before filing a witness statement whether the witness is able to answer the questions, to speak clearly, to be convincing, etc. In any case, a rehearsal before the hearing is very useful and may help correct some aspects, for instance if a witness has a tendency to interrupt the person asking the questions or not to listen to questions.
Re-direct examination (also called re-examination) is a process available after cross-examination to rehabilitate the witness (if appropriate), correct mistakes, clarify obscurities and uncertainties, refute misleading inferences from cross-examination, and address new issues raised in cross-examination.
Using re-direct to correct a client’s mistake
I was counsel in a court case in Singapore many years ago. My client gave his evidence-in-chief and, in the course of cross-examination, fixed the date of the critical meeting. According to my instructions and the materials available to me, it was clear that my client had made an error. When it was time for me to re-examine, I had a dilemma of how to persuade my client to correct his mistake as to the date without asking him a leading question. In the Singapore courts, following common law principles, it is not permitted to ask leading questions in re-examination, and this rule is reflected to some extent in Article 8(2) of the IBA Rules of Evidence 2010, which disallows ‘unreasonably leading’ questions. However, our Evidence Act reflecting common law principles does allow a witness to be shown a document for the purposes of refreshing his or her memory. I then decided to find a page from the calendar for that month and had it placed before my client. There were certain milestone events in his chronology that were new and would fix a chronological sequence of events in his mind. I then asked him a series of questions, as follows.
QLook at the calendar for May 1995. You have given evidence in cross-examination that on 16 May 1995, event (A) occurred.
QYou have also given evidence in cross-examination that on 22 May 1995, event (B) occurred.
QLook at the calendar. On what day of the week was 16 May?
QWhat day of the week was 22 May when you said that event (B) occurred?
QDo you remember whether event (B) occurred before or after the weekend of 13–14 May?
AI remember that it was before the weekend.
QIn your cross-examination, you said that event (B) occurred on May 22, which is after the weekend.
QIn the light of what you have seen on the calendar and the evidence you have just given, what do you say was the date on which event (B) happened?
AI now realise that I made a mistake in my cross-examination. The correct date should have been 18 May, before the weekend.– Michael Hwang SC, Michael Hwang Chambers LLC
Determining whether to re-direct a witness
If re-direct examination is not the most enticing part of witness examination, it is certainly the most difficult. Determining whether to ask questions in re-direct examination requires advocacy experience and good knowledge of the case and of the witness. Preparing these questions in the limited time available for that purpose is far from easy.
To re-direct or not to re-direct?‘It’s best to be very cautious’
Whether to re-direct a witness is a very difficult decision for counsel. If a witness’s credibility has been attacked in cross-examination, counsel may feel obliged to attempt to restore that witness’s credibility through re-direct examination. However, if a witness is panicked and upset after being cross-examined, re-direct questions from counsel may serve only to worsen the witness’s flustered state and further harm his or her credibility. Even if the witness has testified well and counsel merely wants to expand upon an area of testimony for the tribunal, re-direct questions may backfire. Depending on a witness’s state of mind, he or she may not recognise the intentions of counsel and the witness may assume that he or she has done something wrong and backtrack on his or her testimony. I have seen that happen quite a few times. Thus, it is best to be very cautious when deciding whether to conduct a re-direct examination of a witness.– Stanimir A Alexandrov, Stanimir A Alexandrov PLLC
Re-direct is a difficult skill
Eliciting from a witness a favourable answer by means of an open-ended and non-leading question in re-direct is a difficult skill to acquire as the opportunities for practice are limited, given the existence of witness statements and the consequent absence of direct testimony in most cases. There are a few tricks that can be employed, such as drawing a witness’s attention to a document or providing alternatives from which the witness can choose. Re-direct should only be employed where counsel is reasonably confident of a clarifying or favourable answer, as the danger is that it can just reinforce a bad answer given in cross-examination. Questions should be limited, arise out of the cross-examination only and be selected with care, or the process can backfire.– Hilary Heilbron QC, Brick Court Chambers
Only re-direct when critical
Only re-direct if the point is critical, otherwise avoid the temptation. Witnesses become stressed trying to work out what point they have missed or answered incorrectly and, in trying to rectify the situation, all too often the witness just digs an even deeper hole.– Juliet Blanch, Arbitration Chambers
Re-direct examination takes place after cross-examination, which may last for hours or days and is exhausting for the witness (sometimes even for the other participants, notably the arbitral tribunal). If the witness did not perform well during cross-examination, his or her level of self-confidence may be significantly diminished. These factors must be taken into account before deciding whether to ask questions in re-direct examination.
Re-direct examination is essentially a ‘repair job’. It constitutes an opportunity for the witnesses to correct the wrong impression they may have created during cross-examination or, more bluntly, to correct any wrong information they may have given (witnesses may make mistakes during cross-examination).
To assess whether this repair job will work, it is important to determine why it is needed. Various situations may be contemplated.
First, in cases where the cross-examiner deliberately directed the witness to a section of a document without taking into account its whole content, potentially affecting the tribunal’s understanding of the document and the answer given by the witness, it may be useful to return to the point and to ask the witness to refer to the document as a whole. The purpose here is not so much to allow the witness to complete the answer (although this is, of course, important), but rather to ensure the arbitral tribunal is aware of the full content of the document. Even if arbitral tribunals regularly repeat that they know the documents on record, in cases where numerous exhibits have been produced, it may be wise to ascertain whether the key ones have been well understood by the arbitrators. Re-direct examination in such cases is relatively easy: if correctly directed to the relevant sections of the document, the witness should be able to answer fully, especially if, during cross-examination, it was apparent the witness wished to be given the opportunity to do so.
Second, if the cross-examiner’s question was not clear and it is obvious that the witness did not understand it properly, it may be worthwhile to address again the issue in re-direct examination, provided that the question is put more clearly.
Third, if the cross-examiner has asked a question based on documentary evidence on record but not addressed in the witness statement and, for whatever reason, the witness did not give a complete or convincing answer, the decision whether to come back on the same issue in re-direct examination is more difficult. It will heavily depend on why the answer given seemed unclear or incomplete. If the witness was merely not given the opportunity to develop an answer or if there are other documents on record supporting the answer counsel would wish the witness to give, it may be worth trying to improve the unconvincing impression created by the witness’s first answer. If, on the other hand, the unsatisfactory answer is a result of the witness being uncomfortable with the issue at stake, it is better not to reopen it.
Fourth, the most complex situation is where the witness gave an explanation that is either inaccurate, or inconsistent with documentary evidence or with the content of his or her witness statement (or the statement of another witness). The risk is quite significant that the witness will repeat what he or she has already said and further damage the case by confirming, or possibly elaborating on, the first ‘bad’ answer. As a result, it is often better not to reopen the issue in re-direct examination, especially if counsel knows that the point made in cross-examination concerns a weak aspect of the case or of the witness’s testimony.
The foregoing shows not only that counsel needs to be attentive during cross-examination to be able to identify the points that may be worth addressing in re-direct examination and understand any tacit message that the witness may express through body language. It also highlights the importance of witness preparation, which allows counsel to determine the witness’s strengths and weaknesses and decide whether re-direct examination on a given point is appropriate.
If counsel decides that re-direct examination is opportune, the following needs to be taken into consideration:
- Again, re-direct examination takes place at a point in time when the witness is already tired and may not be at their sharpest. Long re-direct examination is therefore risky. Moreover, a long re-direct examination often suggests that cross-examination was effective. For these reasons, in most cases, it is better to limit re-direct examination to a few questions.
- Re-direct examination must be within the scope of cross-examination. To clarify for the listeners (and the transcript) that the question concerns a point addressed during cross-examination, it may be helpful to refer to the specific question or document shown during cross-examination. Incidentally, this also helps the witness understand what counsel is aiming at.
- If questions in direct examination must be simple and as short as possible, this is even more important for re-direct examination. The tired witness must be able to understand the question. This is why it is good, when possible, to show the witness a document relating to or illustrating the question.
- The questions must be open to allow witnesses to rebuild their credibility (if needed). As in direct examination, leading questions do not allow the arbitrators to evaluate the answer of the witness. The arbitral tribunal only gets the following negative message: counsel is aware that a point had been made in cross-examination, which needs to be corrected by counsel, who lost confidence in the witness’s ability to do so.
If direct and re-direct examination seem less attractive and challenging than cross-examination (young practitioners dream about conducting their first cross-examination, not their first direct or re-direct), these exercises do have strategic importance and form part of the advocacy skills that counsel in international arbitration should have.
Moreover, witness statements should be viewed as part of, or as a means to conduct, direct examination, even if they are in writing. To a large extent, the same concerns should govern the preparation of witness statements and direct examination.
Subscribe here for related content, breaking news and market analysis from Global Arbitration Review.
Covering commercial and investment arbitration, Global Arbitration Review is the unofficial broadcaster for members of the international arbitration community, keeping them feeling up to date and informed.