Young ICCA Webinars: The Conduct of Cross-Examination in International Arbitration
Post Event Report
by Sara Nadeau-Seguin (Counsel, Teynier Pic) and Vivek Sharma (Student, Guru Gobind Singh Indraprastha University)
On 5 December 2020, Young ICCA virtually held a webinar on the conduct of cross-examination in the context of the 2020 Casablanca Arbitration day. Over 95 participants connected from all four corners of the globe, despite it being a Saturday afternoon. The event was opened by Young ICCA co-chair, Panagiotis Chalkias, who gave a brief welcome to the participants and overview of Young ICCA and its activities.
The first part of the webinar consisted in a presentation by experienced international arbitration specialists and seasoned cross-examiners of their best tips on what to do and what not to do during cross-examination, as well as on how to adapt to virtual cross-examination. Susan Kimani (Co-Registrar at the Mauritius International Arbitration Centre and Legal Counsel at the Permanent Court of Arbitration) moderated this first session, in which Jacob Grierson (Partner, ASAFO & Co, Paris), Filipa Cansado Carvalho (Independent Arbitrator, Lisbon) and Jalal El Ahdab (Partner, Bird & Bird, Paris) kindly took part.
The “dos” of cross-examination - Mr Jacob Grierson
Mr Jacob Grierson kicked off the discussion by emphasising that there is no one way of conducting cross-examination, particularly in international arbitration. The key is finding one’s own style. Mr Grierson then moved on to his nine tips on how to conduct a successful cross-examination:
- Remember what the point of each question is: Mr Grierson insisted on the importance of always recalling what the clear purpose of each question is. To that end, he suggested that some may find it useful to write down on their cross-examination script the purpose of each line of questioning, in bold, or in italics, so that it can easily be referred to during the cross-examination. On what one should do when there is a key question for a case, but the witness’ answer is unknown, Mr Grierson recalled that there exists no strict obligation, under international arbitration, to put one’s entire case to a witness. There has to be a balancing exercise, therefore, between focussing on the main parts of one’s case and not altogether avoiding topics with a witness which would later make it difficult to run certain arguments with the tribunal (for instance as to the witness’s credibility).
- Ask closed and leading questions: Mr Grierson’s second tip was to ask closed and leading questions, both to minimise the risk of the witness grandstanding and to show that the cross-examiner the one who controls the cross-examination.
- Keep it simple: Mr Grierson stressed that there is no need to overcomplicate questions. This helps both the witness and the arbitral tribunal to understand the questions being asked, without the need for the cross-examiner to explain or rephrase the questions.
- Build things up piece by piece: Mr Grierson underscored the importance of building up momentum, rather than immediately rushing to the best point. He insisted that it is important to reflect on what is the best and the right time to get to the punch line.
- Don’t be a slave to your script: Mr Grierson insisted that it is important to listen to the answers of the witness and be able to react with flexibility, including by departing from your script if required.
- Remain calm and dispassionate at all times: Mr Grierson’s sixth tip was not to show any emotion during the cross-examination, regardless of how well or poorly the cross-examination is going. He explained that it is important to refrain from smiling or thanking the witness when things are going as planned, because that may then make it very easy for the tribunal and the opposite party to see when things are not going so well.
- Be receptive to questions from arbitrators: In some cases, the tribunal may interrupt the cross-examination to ask whether a question is even necessary. In such cases, Mr Grierson’s suggestion was to take the tip from the tribunal and drop the question.
- Prepare well: It is important to think through every question to try and anticipate what the witness will answer. It is equally important to read the documents of the case very carefully.
- Find every opportunity to practice: Mr Grierson’s last tip was to find every opportunity to practice cross-examination. He also reminded the participants that it is not possible to learn everything overnight and there will likely be uncomfortable experiences along the way.
The don’ts of cross-examination - Ms Filipa Cansado Carvalho
Ms Filipa Cansado Carvalho began by addressing a question from the audience on how to cope with moments of panic when one encounters an unexpected situation during cross-examination. She reminded the audience that different people can perceive the same situation differently. What subjectively feels like panic to the cross-examiner may therefore not be perceived as such by the external observers, including the tribunal. She also encouraged the practice of having a few safe questions ready that one can easily turn to while one catches one’s breath and regains control over the situation. She then continued with her six tips on the don’ts of cross-examination (which should be understood as guidelines rather than rules):
- Don’t do it (cross-examination, that is, unless you have a clear and attainable goal): She insisted that it is important to think carefully whether each witness needs to be cross-examined taking into account your case theory and the record. When a witness is not cross-examined, she explained, all the tribunal will have is usually his or her witness statement, which are no more than words on a piece of paper. When, however, a witness is called for cross-examination, these words become a person, which might or might not be a good thing for your case.
- Don’t ask questions to which you don’t know the answer: It is risky to ask questions when you have no idea what the witness might say While no one ever really know what the witness will say, by studying the record one can ask questions for which the record provides a right answer; if the witness then gives a different answer, her suggestion was to try and bring the witness back by using the documents of the case.
- Don’t ask the ‘one question too many’: Ms Cansado Carvalho explained that the ‘one question too many’, during cross-examination, is a question that you do not need to ask and which gives the witness the opportunity to diminish or destroy the points that you have made so far. If, however, there is an obvious question that is the logical continuation of your line of questioning and which gives the witness an opportunity to destroy your entire case, then the problem is probably the line of questioning that you chose rather than the ‘one question too many’. She stressed the importance of resisting the temptation to ask the witness to agree to a legal conclusion that you want to elicit from the facts or give them an opportunity to explain.
- Don’t be aggressive with the witness: Ms Cansado Carvalho warned that by being aggressive with a witness, one risks generating the idea that the witness is damaging your case and creating sympathy for that witness in the eyes of the tribunal, which is counterproductive. If the witness launches into long speeches, she suggested that the cross-examiner might allow this once or twice, but then suggested polite ways of interrupting the witness such as reminding him or her that the schedule is tight, and that the point of the cross-examination is for the witness to answer specific questions.
- Don’t misuse your documents: Ms Cansado Carvalho urged participants not to ask the witness about documents that he/she is likely to be not aware of, simply to validate the content of the document in question or show it to the Tribunal as she believes this is not effective. In her opinion, one should also avoid giving witnesses the opportunity to give different interpretations about the contents of documents which are clear.
- Don’t forget about beginnings and endings: Ms Cansado Carvalho reiterated that preparation is key for cross-examination and should include careful preparation of beginnings and endings. Beginnings because first impressions matter for the Tribunal and the witness and a strong beginning helps to establish control and endings because research shows that humans remember beginnings and endings better than the middle and that the way the cross-examination ends may affect the Tribunal’s perception of the entire exercise.
Virtual cross-examination - Mr Jalal El Ahdab
Last but not least, Mr Jalal El Ahdab shared his tips on how to conduct a virtual cross-examination, a timely topic as the pandemic has forced the legal community to work remotely.
Mr El Ahdab began with a few general remarks on the process of cross-examination, which provides more flexibility to practitioners in the context of international arbitration, as opposed for instance to UK/US litigation where very precise rules of evidence govern testimonial evidence. Accordingly, even if there are techniques which they should be acquainted with, he invited participants not to be too obsessed by what is “formally” permissible and what is not, but be rather focused on the purpose of the exercise, which he thinks is mainly about testing the credibility of the witness.
Moving on to tips for virtual cross-examinations, Mr El Ahdab underscored the importance of getting to know the IT techniques and instruments. By that, he meant that it is important for virtual cross-examiners to know and understand the basics of video conferencing applications, such as Zoom. He also suggested organising a demo hearing with IT specialists to get more familiar with the process. He stressed the importance of having a good Wi-Fi connection, and of testing it prior to the start of the cross-examination. He further noted that bandwidth is important. In some cases, the Wi-Fi might be working just fine, but the video quality is poor due to low bandwidth. To avoid that risk, he suggested disconnecting other devices linked to the Wi-Fi router for the duration of the cross-examination. With respect to sound quality, he suggested that one should invest in a quality microphone, which will truly help to have one’s points heard clearly.
Further, Mr El Ahdab also discussed the background that should appear behind a witness during a virtual cross-examination. In his opinion, a witness should have a casual but professional background. He however cautioned against a billboard that is too professional or too formal, which may seem contrived, especially for a fact witness. It should also be clear that the witness is alone in the room and has only his or her statements on the table before him or herself.
The mock cross-examinations
The second part of the workshop consisted in mock cross-examination sessions based on a mock case concerning dispute arising out of a share purchase agreement. Participants were allocated to different break-out rooms where they were given the chance to cross-examine well-prepared mock witnesses – Susan Kimani, as well as Sofia El Baghdadi (Practitioner, Casablanca), Munia El Harti Alonso (PhD candidate, Washington D.C), Radu Giosan (Quinn Emanuel & Sullivan, Paris), Amir Mahdavi (Curtis, Mallet-Prevost, Colt & Mosle, London), Leyla Orak Çelikboya (Altay Law Office, Istanbul), Jodie Reinford (Hogan Lovells, Dubai), Nadia Smahi (Bär & Karrer SA, Geneva), Othmane Anice (ASAFO & Co, Casablanca) and Aïda Amor (PhD candidate, Paris), under the attentive eye of international arbitration practitioners, acting as a tribunal - Jacob Grierson, Filipa Cansado Carvalho, Jalal El Ahdab, as well as Thomas Granier (ASAFO & Co, Paris) and Matthew Brown (Houthoff, New York). They were then given feedback on the cross-examination they had conducted, followed by a short brief discussion amongst the various participants.
The event was closed by Young ICCA Events Coordinator, Ana Coimbra Trigo, who thanked the faculty members and the participants for their attendance and wished everyone happy holidays.
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