Young ICCA Webinars: Young ICCA and Young ISTAC – Cross-Examination
Post Event Report
by Erdem Küçüker, MCIArb, Istanbul University, Faculty of Law
On 7 September 2020, Young ICCA organized an informative webinar on cross-examination in international arbitration, in partnership with Young ISTAC. The webinar was well attended, with 85 participants, including practitioners and students, joining from various parts of the world.
The faculty of the webinar comprised Mr. Yalın Akmenek (Esin Attorney Partnership, Member of Baker McKenzie International, Istanbul), Ms. Ceyda Cengizer (Altermind, Paris), Dr. Janet Walker (Chartered Arbitrator, Toronto) and Ms. Angeline Welsh (Essex Court Chambers, London). The webinar was co-moderated by Ms. Alina Papanastasiou (Three Crowns, London; Events Coordinator of Young ICCA) and Ms. Leyla Orak-Çelikboya (Altay Law Firm, Istanbul; Foreign Committee Member of Young ISTAC). The first part of the webinar was devoted to a panel discussion, and the second part was reserved for a cross-examination demonstration based on a mock case shared with the participants in advance of the webinar.
Following Ms. Papanastasiou’s introductory remarks, the speakers were invited to address the topic of how to prepare cross-examination. Ms. Welsh focused on how counsel should prepare for cross-examination, noting that counsel should first ask themselves what they want to get from the cross-examination and look for something more than what is already on record. Ms. Walker then shared her tips on how young lawyers can help their more senior colleagues prepare for cross-examination and get ready to undertake important roles during the hearing.
The panel discussion continued with Ms. Cengizer’s input on whether and to what extent counsel are allowed to prepare a witness. In this context, Ms. Cengizer provided a brief comparative overview of the national and international rules and guidelines dealing with this issue, pointing out the lack of a supranational code of ethics. Nonetheless, Ms. Cengizer commented that in any event, counsel should familiarize their witness with the concept of arbitration, refresh the witness’ memory about the case, and explain the general principles governing hearings in arbitration proceedings. Mr. Akmenek illustrated the other speakers’ points by sharing a couple of examples from his experience. His advice was to always remain calm and avoid having an argument with the witness, which will not be well received by the tribunal. Ultimately, counsel should learn how to deal with difficult witnesses and reach their target in a calm, planned, and coordinated manner.
In the second round of the panel discussion, the speakers gave tips to young practitioners on how to be a good cross-examiner. Ms. Walker reminded young lawyers that they should not worry about the mistakes they make during a cross-examination, since there will always be room to improve their skills. Ms. Walker also commented that, during the cross-examination, a good advocate takes his/her time while asking a question, watches the witness, makes sure that the witness understands the question correctly, lets it answer, and then speaks. Moreover, in case of difficult witnesses, a good cross-examiner makes every effort to rephrase his/her question. On the same topic, Ms. Welsh mentioned that counsel should be prepared to find different ways of getting the answer they want in case the witness does answer the question as anticipated.
As a further contribution to the discussion, Ms. Cengizer explained the critical role of junior counsel in arbitration proceedings. She stressed that junior counsel should have an in-depth knowledge of the case, exhibits and facts; and they should locate documents in the cross-examination bundle so that they can assist the lead counsel through the cross-examination. Moreover, if the witness is testifying in another language than English, junior counsel, who are native in the language of the witness, should check whether the questions and the answers are translated accurately and reflected on the transcript. Mr. Akmenek agreed with this view and added that junior counsel’s role in different parts of the proceedings could change the fate of the case, sharing an example where the junior counsel spotted and corrected a mistake on the hearing transcript, which might otherwise have led to severe consequences detrimental to their client.
In the final round of the panel discussion, the panellists briefly touched upon virtual hearings. Ms. Walker stated that junior counsel might be willing to contribute to the organization of a virtual hearing, for instance, with ensuring that the lines and equipment are tested. Likewise, they can speak with their witness about the conduct of the hearing, and the necessary arrangement (e.g. that no one is around the witness during the testimony). Finally, on the hearing day, junior counsel can also make sure that the tribunal sees and hears the witness clearly.
Ms. Welsh stated that one of the perceived disadvantages of virtual hearings is that body language is not easy to discern and might have an impact on how arbitral tribunals perceive witness testimony. Nevertheless, in her view and experience, virtual cross-examination can be as effective as in person cross-examination and virtual hearings can be conducted as successfully as in person ones. Mr. Akmenek concluded the panel discussion, raising the issue of the right to an in person hearing, which, if not respected, might raise public policy concerns in some jurisdictions under certain circumstances.
In the second part of the webinar, the speakers participated in a cross-examination demonstration, with Ms. Walker and Mr. Akmenek playing the role of the arbitral tribunal, whereas Ms. Welsh acted as the cross-examiner and Ms. Cengizer as the witness. The purpose of the exercise was to show in practice the dos and don’ts of cross-examination in international arbitration. They noted the vitality of taking the time and listening to the witness patiently. Further, they also expressed that a cross-examiner should not ask legal questions to non-lawyer witnesses, but it may always insist on questions related to the factual background of the case.
Moreover, it was mentioned that counsel might lose control of the cross-examination if they ask too many open questions. The panellists commented that the cooperation of the witness is critical for the fruitfulness of a cross-examination. Finally, they opined that during virtual hearings, the tribunal should be monitored regularly, in order to ensure that arbitrators follow the proceedings correctly, for example, through asking whether they have opened the respective page of the bundle if the counsel draws their attention to a document.
At the end of the webinar, the speakers answered the questions of the audience, which focused on the type of questions a cross-examiner should ask/avoid and how to react to unexpected answers from fact witnesses. Following the Q&A session, Ms. Orak-Çelikboya delivered her concluding remarks, which included a short presentation of Young ISTAC and its activities, and closed the webinar.
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