Young ICCA Skills Training Workshop: The Dos and Don’ts of Cross-Examination
Post Event Report
By Hyunyang Koo, Lee & Ko
The news that Young ICCA was organizing its Skills Training Workshop on cross-examination in Seoul grabbed the attention of young arbitration practitioners in town. On 5 November 2018, many young arbitration practitioners gathered in Samseong, Seoul to explore the hands-on tips on cross-examination. The workshop was organized by KCAB International and the Young ICCA Steering Committee, Ms. Saemee Kim, Lee & Ko, Mr. Taehee Ahn, KCAB International and Mr. Issey Park from Al Tamimi & Co and guided by Ms. Nhu-Hoang Tran Thang, Lalive and Young ICCA Co-Chairand Ms. Charis Tan, DWF and Young ICCA Event Coordinator. Lee & Ko, KCAB International and Al Tamimi & Co kindly sponsored the event.
The Workshop started off with Ms. Kim’s welcome remarks on behalf of the Young ICCA Steering Committee, followed by a keynote speech from Mr. Nikolaus Pitkowitz, Graf & Pitkowitz. Based on many years of experience, Mr. Pitkowitz discussed and compared different aspects of cross-examination in civil and common law jurisdictions. He then took the audience through the steps of preparing the witness for cross examination. He emphasized that counsel should always bear in mind that the ultimate purpose of the cross examination is to convince the Tribunal that “we have a better case”. In order to do so, it is important for counsel to conduct direct examination which provides the witness the opportunity to make a favorable impression on the Tribunal. Additionally, the witness should be able to react to the Tribunal during the cross-examination. On the other hand, Mr. Pitkowitz advised that when cross-examining the other party’s witness, it is better to attack the substance of its factual statement, rather than attacking him or her personally. Before closing his helpful speech, Mr. Pitkowitz addressed the importance of having actual experience of cross-examination as it cannot be taught and requires a lot of practice.
After a short break, the panel discussion moderated by Professor Joongi Kim, Yonsei University, began. Five experts from international arbitration participated as panelists; Mr. Harold (Hyun-Shik) Noh, Quinn Emanuel Urquhart & Sullivan, Mr. Harald Sippel, Asian International Arbitration Centre, Mr. Don Jeon, Freshfields Bruckhaus Deringer, Ms. Wendy Lin, Wong Partnership and Mr. Simon Chapman, Herbert Smith Freehills.
Mr. Noh began the discussion by providing hands-on tips in preparing the witness for cross-examination. He shared the importance of the witness being familiar with his or her own witness statement and reviewing the relevant documents to make sure that his or her testimony is consistent with the evidentiary record. He also shared some real-life examples where he (Mr. Noh) dealt with challenging situations with his witnesses. After Mr. Noh’s helpful comments, Mr. Sippel took over and engaged the audience with conduct of a role play exercise with Mr. Noh to emphasize how critical it is to prepare the witness for its cross-examination. The discussion was then led by Mr. Jeon, who provided helpful tips of the “Dos” when cross-examining the other party’s witness in the hearing. He touched upon practical points, including how to ask leading questions and establish foundations for getting admissions or favorable statements from the witnesses. When it came to cross examining an expert witness, he emphasized the importance of challenging his or her area of expertise and independence. After Mr. Jeon’s discussion, Ms. Lin provided her own “Don’ts” in cross-examination. She advised not to go over the issues that have already been argued extensively, but rather attack the witness from a different angle. She also provided an interesting practical advice to visualize the post hearing brief when preparing the questions for cross-examination and suggested that counsel avoid extensive cross-examination. She also mentioned it is important to stop cross examining the other party’s witness at an appropriate time. Mr. Chapman wrapped up the discussion by providing some tips on re-direct. Based on his experience, Mr. Chapman found that it is difficult to get the right answers from re-direct and it is better to address those points in the closing submissions. If, however, re-direct is necessary, it is important to prepare the witness for the questions so that the witnesses will have the answers ready.
After the panel discussion, the Workshop ended with closing remarks from the panelists and organizers. The venue was packed with around 60 participants and people had an enjoyable networking session, sharing their experience with other young arbitration practitioners with delicious refreshments and hand-made beers which were generously prepared by the organizers.
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