Sitting on a plane from New York to Denver, thankful to be in the exit row (with an empty seat next to me no less) but a bit disappointed to be missing the latest iteration in the Brady vs. Manning saga.
I was in New York for a three day skills workshop sponsored by the Geneva-based Foundation for International Arbitration Advocacy (FIAA). The workshop was held at the midtown office of the New York International Arbitration Center (NYIAC) and the International Centre for Dispute Resolution (ICDR).
The workshop topic was:
Questioning of Expert Witnesses in International Arbitration
The great thing about these workshops (and this was my first one) is that they allow participants to actually practice their advocacy skills and receive detailed feedback from experienced practitioners. I found this much more useful than sitting through a bunch of boring lectures featuring endless Powerpoint slides (by the way, stay tuned for an upcoming rant about Powerpoint). In many ways, it reminded me of the Vis Moot, not least because the final day involved a hearing before a panel of three arbitrators, and it concluded with the arbitrators going around the table, giving each advocate detailed, and at times brutally honest, feedback.
Of course, to really take advantage of these workshops, a significant amount of preparation is required. This meant spending several days poring over a lengthy case file and taking detailed notes.
The case file was based on a hypothetical UNCITRAL arbitration between a Japanese video game maker and a British marketing company. Having concluded the liability phase, the tribunal’s task was to quantify the damages owed, which of course required expert testimony. Each participant acted as counsel for one party and had a chance to practice:
–Delivering an opening statement;
–Conducting a direct examination;
–Conducting a cross-examination;
–Conducting a re-examination; and
–Delivering a closing argument
I took away these valuable lessons:
On Substance
Cross-Examination:
–Every question you ask should: (1) help establish a specific point you want to make, (2) contain one know and verifiable fact underlying that point; and (3) provide evidentiary support for that fact. This helps keep you on target, assures that you won’t be caught off guard by an answer, and allows you to point directly to the record if the witness gives you trouble. From a practical standpoint, I found that the best way to do this is to have a simple table that has one column for each element.
–The general goal should be to put the witness in a box and allow him absolutely no wiggle room. Almost every answer should be “yes” or “no.” He should feel trapped, as if unable to escape a personalized prison cell. Above all, do not give him a stage from which to pontificate.
Re-Direct Examination:
–Put yourself in the witness’s shoes. He is an expert who has spent years studying and practicing in a highly specialized field. He spent countless hours putting together a thorough, detailed report. This report has his name on it, and there is a certain pride of authorship. Now, he has just spent an excruciating amount of time having his credibility, his reputation, his pride, attacked by some awful little lawyer who does not know the first thing about his area of expertise. The nerve of this guy! Even worse, he has been unable to defend himself, to put this guy in his place.
–Finally, you come along to save him. Your most basic task on re-direct is to tear up the box, bust open the prison cell, and free him from this misery. Give him a stage and let him finally put that pesky little lawyer in his place! The best way to do this is to (1) reference an area that opposing counsel was attacking him on and (b) ask a very simple, very short, and very open question that lets your witness take the stage.
Generally
Simple and succinct is always best. This goes as well for the opening statement and closing argument.
On Style
–Use hand gestures strategically. Gestures should be used to make key points, not to simply track the rhythm of the advocate’s speech cadence. To minimize the frequency of gesticulation and maximize its rhetorical effect, it helps to keep your hands on the table, with one hand resting on the palm of the other.
–When examining a witness, make good eye contact with him, but do not forget about the tribunal. From time to time, subtly glance in the arbitrators’ direction to “gauge the temperature” of the panel. If they seem bored and unconvinced, it might be time to make an adjustment.
–Do not respond to the witness’s answers with “ok” or “yes.” This is not a conversation, and you do no want to inadvertently send a false message to the witness or the panel.
–Be more relaxed on re-direct than cross. Again, the goal on re-direct is to free your witness from the horror of cross-examination. Your tone and body language should be relaxed, with a general calming and comforting effect.
Common Law vs. Civil Law
–Given the nature of this blog, it should come as no surprise that my one critique of the workshop is that it had a very common law-centric focus with respect to tone and style. I do not recall a single arbitrator or faculty member who was from a civil law country. It seemed that pretty much everyone was from the U.S., Canada, England, or Australia. My general belief is that the overall tone and style of advocacy should change depending on the nationality of the arbitrators (see CODDICOMM’s Practice Guide on Cross-Examination in International Arbitration).
If you are from a civil law country, I would love to hear your thoughts on this.
P.S. We just landed in Denver, and the flight attendant announced that Denver won. I am only here for a one hour layover, but it should be exciting!
–By David Coddon