KluwerArbitration

Document information Practical Insights on Witness Examination

Timothy Cooke
Publication Timothy Cooke, Reed Smith LLP (last updated July 2021)
Practical Insights on
Arbitral Procedure Edited by Joshua Karton, Queen’s University (Canada), Simon Greenberg, Clifford Chance
(Paris) & Fan Yang, Stephenson Harwood (London)

Last Reviewed I. Introduction

July 2021 Witness examination is the means by which the evidence of factual and expert witnesses
is elicited and tested. The concept is rooted in the common law adversarial tradition, in
which the parties take the lead in presenting the evidence. By contrast, under the
inquisitorial system associated with civil law traditions, the judge seeks out the facts with
Topics a focus on the written documents and, to a lesser extent, questioning of witnesses. Under
Witness Examination the civil law approach, the parties play a secondary or supportive role in this fact-finding
exercise. One might conclude from this brief description that lawyers from a common law
tradition possess some advantage over their civil law counterparts when it comes to
Key words witness examination. That conclusion would be misplaced. First, the art of examining a
witness is not so arcane as to be unteachable to any lawyer. Second, what might be
Witness Examination effective in the common law court room does not necessarily translate to an arbitration
hearing.

Bibliographic II. Important Considerations

reference
Timothy Cooke, 'Practical
Insights on Witness
Examination', Practical
Insights on Arbitral
Procedure, (© Kluwer Law
International; Kluwer Law
International)
1. Procedural expectations for witness examination
The varied backgrounds of arbitrators, parties and their representatives can give rise to
mismatched expectations or misunderstandings regarding the process of witness
examination. Some practitioners import their own experience of domestic litigation,
including rules of evidence relating to matters such as admissibility, probative value and
credibility, which may not conform to the experience or understanding of other
participants in the arbitration. However, rules of evidence as lawyers may understand
them in the litigation context do not apply in international arbitration, where rules of
evidence are limited, and those that do apply are flexible. It is important in the context
of witness examination to understand how that flexibility may affect an advocate's and a
tribunal's approach to witness examination. Tribunals and parties should address the
procedure for witness examination early in the proceedings to avoid misunderstandings.
Areas that are most likely to give rise to disagreements or misunderstandings are as
follows:
• Presumption as to probative value of evidence . In civil law traditions, employees or
directors of a company which is a party, or other witnesses with an interest in the
dispute, are presumed to be partial and their testimony is treated as inadmissible
or of limited evidentiary value. Such witnesses are not expected to give evidence in
civil law proceedings. By contrast, the common law does not presume the evidence
of a witness interested in a dispute to be of lesser probative value by reason only of
that interest. Evidence from interested witnesses is not inadmissible in
international arbitrations; however, arbitrators from the civil law tradition may
inherently approach evidence from such witnesses with greater scepticism than
their common law counterparts. It is therefore important that any potential
misunderstandings as to the evidence of interested witnesses to be explored early
on, particularly where one of the parties is represented by lawyers from a civil law
tradition and the other by lawyers from a common law tradition.
• Scope of permissible cross-examination . In the United States, a witness may be
cross examined on any matter addressed by him in direct examination. This rule
usually precludes cross-examination of matters falling outside the direct evidence
given by the witness. In other common law jurisdictions, a witness may be asked
questions about any matter within his or her knowledge insofar as it relates to the
issues in dispute. In other words, cross-examination is not restricted to the contents
of that witness's written witness statement(s). Again, it is important at an early stage
—before the preparation of witness evidence and certainly prior to the hearing—for
the scope of cross-examination to be considered by the parties and explicitly
addressed by the tribunal in a procedural order.
• Impugning the credibility of a witness . In the common law, domestic courts observe
a doctrine often referred to as the rule in Browne v Dunn. This rule derives from an
1893 decision of the English House of Lords. It was succinctly reformulated by the
Australian Law Reform Commission in 2006:

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 … where a party intends to lead evidence that will contradict or challenge the
evidence of an opponent's witness, it must put that evidence to the witness in
cross-examination. It is essentially a rule of fairness – that the witness must not
be discredited without having had a chance to comment on or counter the
discrediting information. It also gives the other party notice that its witness'
evidence will be contested and further corroboration may be required.
In practice, this rule requires that a witness be given the opportunity to respond in cross-
examination to a serious allegation that a party wishes to rely on as part of their case. As
the above formulation suggests, this is borne out of fairness to the witness. That principle
of fairness no doubt underpins the fact that for some lawyers, such as English barristers,
this rule is not just a rule of evidence but also an express ethical obligation.
There is no such equivalent rule or ethical obligation that binds US litigators. Indeed, the
idea that an advocate might have to 'put' a serious allegation directly to a witness might
seem to them contrary to strategy or common sense when it is likely to draw a denial that
will go on the record. For civil lawyers not steeped in cross-examination, the rule is likely
to be altogether unfamiliar.
The rule does not formally apply in international arbitrations. However, in practice, a
common law arbitrator may expect the principle underlying the rule (i.e., fairness to the
witness) to be manifested by putting any serious allegations to the witness. On the other
hand, some argue that this principle of fairness is achieved through the procedural
framework that has become standard practice in international arbitrations, whereby
parties to present their arguments and supporting documents prior to any hearing where
the witness will testify. Therefore, once again, parties and tribunal should discuss at an
early stage whether there is any expectation that a party must put its case to the other
party's witnesses. This will serve to avoid confusion at the evidentiary hearing and avoid
a situation where, after witnesses have been cross examined, one party asserts in closing
submissions that an allegation was not put to a witness and, as a consequence, the
allegation cannot be relied upon by the tribunal.

2. Three phases of witness examination

Modern witness examination practices have evolved directly from the historical practice
of examination in common law trials which had developed before the advent word
processors, photocopiers and electronic documentation. Generally speaking, there are
three phases of examination, or questioning: (a) examination-in-chief, (b) cross-
examination, and (c) re-examination.
a. Examination-in-chief
First, the witness is examined by the party relying on his or her evidence. The witness
tells their story, known as their evidence-in-chief. The evidence is elicited by questions
from the parties' advocate, known as examination-in-chief (or, in the United States,
direct examination). Questions are to be framed openly—who, what, how, why—to ensure
that the witness gives evidence as much as possible in their own words without being led
into the answer by the question itself. The evidence has to be that of the witness, not the
advocate.
b. Cross-examination
The second phase is cross-examination—'cross' in the sense that it is questioning
performed by the opposing party's advocate. Unlike examination-in-chief, an advocate
cross-examining a witness tests and challenges the witness's evidence by asking leading
rather than open questions.
c. Re-examination
After the witness's account has been tested in cross-examination, the first party's
advocate can ask the witness to examine his or her witness again to clarify any answers
that the witness has just given. This third phase is referred to as re-examination or re-
direct examination. Often, an advocate may choose not to re-examine a witness. The
decision whether or not to do so is explored below.
These three phases of witness examination inform the structure of witness examination in
modern international arbitration proceedings and the traditional common law and
American terminology has been adopted by practitioners. In addition, the common law
rules of evidence as to open and leading questions are implicitly accepted by advocates
and tribunals almost without question, even as other aspects of common law trial
procedure and rules of evidence are seen by many as inappropriate for international
arbitration proceedings.

3. Witness statements as evidence-in-chief

Today, many common law jurisdictions provide that witnesses submit one or more written
statements in lieu of oral examination-in-chief at trial, which was the norm before
widespread use of word processors and the predominance of email and other forms of
electronic communications. The purpose of this practice is principally to improve

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 efficiency: it allows parties to understand the evidence offered by a witness in advance of
trial, and it saves time at the hearing itself.
This development is reflected in current international arbitration practice, both because
it promotes efficiency and partly because it is more consistent with procedure in the civil
law tradition. Parties invariably produce witness statements from their witnesses, which
they exchange in advance of a hearing according to a procedural timetable. Witnesses
may provide successive rounds of written evidence, where they comment on the written
evidence of others before it has been tested at a hearing. These statements serve as their
evidence-in-chief. As a consequence, modern international arbitration proceedings
typically eschew examination-in-chief altogether or restrict it to the witness clarifying
points, correcting errors in their written statements, or providing an update on matters
that have transpired since their written evidence was filed. At hearings, most of the time
for testimony of fact witnesses and expert witnesses is dedicated to questioning by
opposing counsel and/or members of the tribunal. Evidence from expert witnesses can
also be taken concurrently in a conference, as discussed below. Re-examination is
typically brief, or is sometimes dispensed with by the advocate.

4. Witness conferencing
Witness conferencing, or 'hot-tubbing' as it is informally known, is a means of taking
evidence that has become increasingly popular in international arbitration. It is
deployed where tribunals consider competing evidence from expert witnesses. The
defining feature of a witness conference is that the witnesses who have given competing
evidence (usually by way of written expert reports) give evidence together at the same
time.
There is no single format for a witness conference. Witnesses may debate with each other
directly; the tribunal may lead questioning in a quasi-inquisitorial process; or counsel
may ask questions of both witnesses in a form of enhanced cross-examination.
Sometimes, more than one or all of these procedures are adopted, according to the
particulars of the case and the preferences of the parties and tribunal.
The perceived benefits of taking evidence in this manner are efficiency, particularly
where experienced expert witnesses are giving evidence, and direct engagement
between experts on the issues that are disputed. On the other hand, a poorly-planned or
executed conference can descend into chaos. For witness conferencing to be successful,
planning and engagement among the tribunal, the parties and the experts is essential.

III. Practical Guidance

This section addresses how to prepare and conduct the three phases of witness
examination with particular emphasis on cross-examination, since this forms the majority
of examination in modern international arbitrations. It also discusses special
considerations applicable to witness conferencing. Finally, a range of practical matters
that commonly arise are highlighted.

1. Preliminary point – giving evidence under oath or affirmation

The tribunal and parties should seek to determine early in the proceedings whether
witnesses are to give evidence under oath or affirmation. Arbitrators are permitted to
administer oaths and affirmation in many arbitral seats. In such a situation, the tribunal
and parties should agree in advance the form of oath or affirmation, bearing in mind
possible conflict of laws issues that might arise if the hearing takes place or if a witness
gives evidence in a location (usually by video link) other than the seat of arbitration.

2. Examination-in-chief
As discussed above, examination-in-chief has been largely displaced by written
statements from witnesses. However, an advocate should be aware of a number of
situations where evidence-in-chief may be required or desirable.
First, written statements are usually filed some months before an evidentiary hearing.
Those statements might also be filed simultaneously. As a result, a witness may wish to
provide evidence-in-chief of matters that have developed since their statement was
written, or to respond to particular matters in the written evidence of other witnesses.
Second, it is useful for witnesses, who are usually nervous at first, to settle down into the
examination process by being asked some straightforward and uncontroversial questions
before being turned over for cross-examination. The overall quality of a witness's
evidence can be measurably improved by this simple approach.
A tribunal's procedural order may specifically address the length of examination-in-chief
and may permit or restrict the areas of examination-in-chief. If an advocate wishes to
examine a witness in chief, they should consider whether this is permitted by the
procedural directions and if necessary seek to agree the ambit of such examination with
the opposing party's advocate or apply to the tribunal for permission.
As explained above, an advocate should ask open questions in examination-in-chief.
Thus, counsel might ask, “What did you say to Ms. Jones at the meeting on 5 June?” This

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 question does not invite particular evidence to be given. By contrast, the question, “Did
you tell Ms. Jones that the widget was free from defects?” impermissibly 'leads' the witness
to a particular answer about the quality of the item for sale.
Whilst there is no rule against asking leading questions, the reality is that a tribunal will
be cautious about accepting evidence-in-chief that has been obtained through leading
rather than open questions.

3. How to prepare a cross-examination

It is often said that witness examination is an art rather than a science. Any two
advocates given the same case and the same witness will approach examination
differently and they both may succeed in their goal, namely to adduce facts or
statements from a witness that supports their case or damages the case of their
opponent. To achieve this goal, one piece of advice is routinely and properly dispensed
to advocates: preparation, preparation, preparation. The reality is that there is no short-
cut to an effective examination. The advocate must have complete command of the
pleadings, the written witness evidence and the documentary record.
a. On which issues should the witness be examined?
The first part of preparation is to know how the evidence of the witness in question fits
into the case as a whole. The advocate must identify what issues in dispute the witness
has addressed in their written evidence. This is not always as obvious as it may first
seem. Witnesses frequently cover ground that strictly speaking ought not to appear in
their statements. For example, it is common to see thinly-veiled advocacy of a party's
position that strays outside the knowledge and experience of a witness of fact – such
advocacy properly falls to the party's legal team not the witness. Witnesses sometimes
comment on the interpretation of a document (a legal question for the tribunal) or
explain the supposed intent behind emails (their subjective interpretation is irrelevant).
Such evidence is not relevant. Applying strict common law rules of evidence, such witness
evidence is strictly inadmissible. For the most part, such so-called evidence does not
need to be addressed in cross-examination.
The advocate must also identify what other issues the witness may be able to speak to,
but about which they have not offered any written evidence. These issues may be
discerned from the pleadings and the documentary record. These issues may prove
fertile ground for cross-examination.
This preparatory exercise sometimes yields only a few issues for questioning. Sometimes,
the advocate might not identify any issues for examination. An advocate should not be
afraid to dispense with cross-examination if on a proper analysis it appears there is
nothing to ask the witness. Similarly, advocates should not be diffident about conducting
a short examination addressing one or two issues. Succinct cross-examination that is
directed to the issues in dispute will be more effective than an unfocused and wide-
ranging series of questions with no obvious objective in mind.
Once the advocate has identified the issues on the witness may be able to give evidence,
he or she must balance what the witness has or has not already said about those issues
with the other evidence in the record. A chronology of events relating to an issue is the
single most effective preparatory tool to compare and contrast what a witness has said
against the backdrop of other evidence. A chronology will highlight the context in which
something was said or done. Gaps in that chronology may be equally revealing. The
witness's evidence on an issue must be compared against the chronology that has been
prepared to identify inconsistencies, possible points of clarification and avenues of
attack. In the course of preparing a chronology and matrix of evidence, the advocate may
also compile list of notes that may be pointing towards areas where the witness might be
able to corroborate the advocate's case or undermine the other party's case. Some lines
of questions may also become apparent.
The chronology and matrix of evidence for each issue will form the basis of preparing the
witness examination itself. For each issue, the advocate must have very clearly in mind
what point or concession they wish to obtain from the witness. The advocate should build
lines of questions that all point towards the evidence that they are seeking to procure.
For the less experienced advocate, this process is time-consuming, but over time and
with more experience, the process becomes quicker and more intuitive.
In addition to the exercise undertaken for each issue, the advocate needs to bring their
life experience to bear on the case: how would ordinary people react in the situation that
the witness was placed in? What are the likely explanations that a witness will have to
questions on the issue? Would those explanations accord with the documents, with what
the other witnesses say, and with life experience? This analysis will help shape the lines
of questioning for the witness. They will also allow the advocate to be unshackled from a
fixed list of questions and instead be able to react and adapt to answers that the witness
gives at the hearing.
b. Structuring the examination
Advocates should structure their examination so that it is clear to the tribunal why
certain questions are being asked. For short examinations covering a short list of issues,

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 the structure of an examination can proceed on an issue-by-issue basis and, in most
cases, adopt a chronological flow.
For longer examinations, a chronological flow is recommended. It helps the tribunal to
see how the dispute unfolded and how the various actors responded to the circumstances
that befell the parties. It can sometimes also be helpful to signal to the tribunal when
changing topics, and what the new line of questioning will concern. In contrast, jumping
around within a chronology can be confusing for a tribunal. Even within a chronological
examination, however, there is room for manoeuvre, and the advocate should begin and
end with strong avenues of questioning so that the tribunal's initial and final impression
of the witness is influenced by those questions and, hopefully, the evidence they yield.
Whilst it is important to have a structure firmly in mind, cross-examinations do not
always go to plan, and the advocate must be prepared to modify the sequence of events
as the evidence unfolds.
Some of the issues to be canvassed in examination will be linked, or may cover the same
chronological span, or may concern the same series of documents. The advocate should
invest time in deciding how best to present questioning in this situation. Sometimes it
may serve the advocate's purpose to address questions on overlapping issues by
following a chronological sequence of events. At other times, it may be preferable to take
each issue separately, even though certain documents may be re-visited multiple times.
For documents that are particularly helpful for the advocate's case (or in respect of which
helpful evidence has emerged), taking the witness and the tribunal to those documents
multiple times can serve to reinforce the importance of those documents. However, the
advocate needs to be flexible because they may plan one approach but during the
examination itself it transpires that another approach is required.
c. Documentation
Cross-examination is dominated by documentation. Hearing bundles typically contain
contractual documentation, email traffic (often voluminous, often with different branches
of exchanges between different authors), exchanges on mobile chat apps such as
Whatsapp and WeChat and other contemporary documents. In certain types of cases,
such as construction and infrastructure disputes, technical documentation running to
thousands of pages may form part of the record. A cross-examiner has to navigate this
multitude of documents without losing momentum with the witness and, more
importantly, the tribunal. Identifying documents among many volumes of the hearing
bundle can slow down the pace of examination and therefore some of its force. There are
a number of solutions to this problem.
First, if the advocate is to use the trial bundle, they can ask at the beginning of the
examination, or at natural breaks in the questioning (such as a change of topic or a new
line of questions), that the witness have to hand the relevant volumes of the bundle to
which frequent access is going to be required. This is also a useful means of signposting to
the tribunal a change of topic, which the advocate can reinforce by foreshadowing what
that new topic will be.
An alternative approach is to prepare a separate bundle from the documents in the
record for the witness. This cross-examination bundle has the benefit of containing all the
documents that will be shown to the witness. On the other hand, it does provide to the
witness a foretaste of what is to come, and the element of surprise might be lost.
A third approach is for the parties to have agreed between them a core bundle of key
documents that are likely to be referenced at the hearing. This bundle is used at the
hearing as primary point of reference for submissions and also cross-examination. A core
bundle can prove very useful for the tribunal, although it requires the parties to co-
operate in good faith to reach agreement; however, this does not always happen, despite
best intentions.
Finally, the use of electronic bundles in hearings has the potential to render the former
solutions obsolete. It has become increasingly common, particularly in the wake of
virtual hearings, to display documents from the hearing bundle on the computer screens
of all participants in a hearing. This approach removes the delay generated waiting for all
participants to find the correct volume of the hearing bundle every time a new document
is shown to a witness. It also preserves the element of surprise by not revealing what
document the cross-examiner might refer to next.

4. How to cross-examine a witness

a. Controlling the witness
The advocate must be in complete control of the process. For this reason, some
advocates begin a cross-examination by laying down some ground rules for the witness.
The advocate may simply ask that the witness should answer all questions 'yes' or 'no',
and only after that expand with any explanation they wish to give. Other advocates
establish control by taking the witness at the outset to some obvious error or
inconsistency in their evidence, however minor, to impress on the witness that the
advocate is in complete command of the record. Establishing control is important for the
dynamics of the examination. It does not matter how that control is established, so long

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 as it is done respectfully and very early on.
The party conducting the cross-examination aims to elicit evidence that will help their
case or undermine that of the other party. As a general rule, cross-examination should be
as short as possible in order to canvass the issues that need to be discussed with the
witness. Whilst the witness may make important concessions or admissions, he or she
may also give damaging testimony that harms the advocate's case. An advocate should
therefore not give the witness any opportunity to improve his or her evidence. Once the
advocate has obtained the evidence needed from a witness, they should move on and
resist the temptation to try to secure even better evidence. All too often, the witness
realises that they have slipped up, and will withdraw or revise their evidence.
Cross-examination should generally take the form of leading or closed questions. The aim
of the advocate should be to ask the witness to agree or disagree with successive
statements that lead carefully to the key point that pertains to the issue already
identified by the advocate during preparation. The aim is to lead the witness to that key
question such that they are compelled to agree with the question based on the logic of
the foregoing questions, failing which their evidence will be viewed as inconsistent with
the previous questions or they not be viewed as credible. There is no limit to the skill and
imagination of advocates to devise questions that lead to the key evidence that they
wish to elicit: indeed, this is the challenge and the satisfaction of a successful cross-
examination.
Despite the best laid plans, the reality of cross-examination is that the witness's
evidence will influence the flow of questions. Answers may require the examiner to go
down various avenues in order to procure the necessary evidence. Although it may be
difficult, especially for those with less experience, the advocate must not be constrained
to a list of questions. For example, a witness may respond to a question with evidence
that can be refuted by reference to a document or other evidence. The advocate will
usually want to put that evidence to the witness straightaway to force a concession. This
has a number of consequences: it reinforces to the witness the advocate's command of
the evidence; it signals to the tribunal that the witness made a mistake or was not being
truthful; and it may undermine the witness's self-confidence. The better prepared the
advocate, the more confident he or she will be at following their nose and addressing an
unexpected answer from a witness.
b. Styles of examination
How an advocate approaches the examination will also depend on other variables, the
most important of which are the composition of the tribunal and the nature of the witness
themselves. For some advocates, cross-examination is a battle against the witness and
any attempt may be taken to undermine, embarrass or even ridicule the witness. The
tone of questioning is curt and can be overtly hostile. At the other end of the spectrum,
some cross-examiners adopt a friendly tone, seeking to elicit evidence by developing a
rapport with the witness. Skilled cross-examiners vary their style across the breadth of
this spectrum according to the circumstances, without straying to the outermost
extremes of either.
A more forceful approach may not sit as comfortably with civil law arbitrators, who may
be concerned to protect a witness from what could be interpreted as an unnecessary
attack on the witness. Common law arbitrators on the other hand may not feel so
protective of a witness and instead be concerned to see how a witness's evidence holds
up to rigorous scrutiny. Whilst these generalisations are overly simplistic, they do
highlight the need for advocates always to be respectful to the witness, and to be attuned
to the sensibilities of the tribunal members, whatever their training and background, and
adapt their examination approach accordingly.
Sometimes the way a witness responds to cross-examination requires an advocate to
adapt their approach. It is fair to say that most witnesses in disputes tell the truth and
seek to answer questions to the best of their ability. They usually have no interest in
being dishonest. Other witnesses are obstructive or evasive. They usually reveal their
hand quite early on in an examination. In these situations, an advocate may need to
adopt a firmer hand to ensure that they assist the tribunal with meaningful responses to
questions. If the witness continues to difficult, especially where it comes to answering
relatively uncontroversial points, their credibility is likely to be compromised in the
tribunal's mind.
Another aspect of examination that is particularly important in the context of
international arbitration is a sensitivity to cultural norms in different parts of the world.
Cross-examination under the common law adversarial system rests in part on the idea
that when a witness is challenged as to the accuracy or truth of something, a truthful
witness will protest and stand their ground. But in some cultures, open confrontation can
be seen as disrespectful. This may lead to a witness avoiding a denial or even agreeing to
something in cross-examination that is adverse to their own position out of deference to
the questioner in what is an unfamiliar setting. Similarly, a witness may refuse to look an
advocate in the eye when answering a question, not because (as one might assume in
Western culture) they are being evasive but, again, because culturally, looking directly
into the eyes could itself be understood by the witness to be disrespectful. Advocates
and tribunals need to be astute to these dynamics, which at one level can be viewed as

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 irrelevant or subtle, but can have an important effect on the evidence that a witness
gives.
c. Timing
Two important aspects of timing arise in hearings – the first concerns strategic use of
timing as part of an examination; the second involves the prospect of running out of time.
The cross examiner should have in mind how long they make take on each of the issues
that they will explore with the witness. The tribunal will usually direct there to be breaks
in the hearing every hour or so, with some leeway usually afforded to the advocate
conducting the examination. Advocates should take full advantage of the timing of these
breaks to lead up to key questions, to allow significant evidence or concessions to sink in
over an adjournment or to serve as natural divisions between different topics. During the
breaks, the advocate should consider how to re-structure an ongoing examination to
accommodate whatever has transpired before. It is usually preferable to avoid a witness
giving evidence over successive days, as a witness who has not performed well on the first
day may return on the second day with a keener sense of how to handle the process of
cross-examination. In substantial cases, having witnesses give evidence on multiple days
is, however, sometimes unavoidable. Where the advocate has witness has elicited good
evidence on one day, it is better not to revisit any of the issues already covered in case
the witness revises their evidence to the detriment of the advocate's case.
The second issue that occasionally arises relates to time constraints, which are frequently
imposed on advocates in arbitration hearings both to make oral argument but also to
examine witnesses. Early assessment of the issues in dispute will inform parties' time
estimates that dictate the length of a hearing. As the case develops, it may become
apparent that additional time is required, for example when a party files more witness
evidence than the other had anticipated, and which enlarges the scope of cross-
examination. If a party determines that the time estimate for a hearing is likely to be
inadequate, this should be communicated to the tribunal as early as possible so that
extra time can be accommodated through longer sitting hours or adding further days to
the hearing schedule.
Sometimes, a tribunal may order parties to present their cases according to a chess clock
procedure in order to ensure that the hearing concludes within the time reserved for the
hearing. This procedure provides that each party has a set amount of time at the
evidentiary hearing, and may apportion that time as they wish across making legal
arguments and examining witnesses. Where a chess clock procedure has been ordered,
the advocate will have some flexibility as to the timing for cross-examination subject to
their assessment of how to use the time to make the best impression on the tribunal.
Time constraints at the evidentiary hearing reinforce the importance of knowing what
issues a witness has to be tested on and having command of the overall case. The
advocate will need to monitor time constantly so that examination can be completed in
a timely fashion. As a hearing unfolds, advocates sometimes have to reassess how many
witnesses should be cross examined or the extent to which multiple witnesses should be
examined on the same issue. This may be because examination of key witnesses has gone
better or worse than expected or the evidence has taken much longer than expected.
How the advocate approaches these issues is largely a product of, once again, thorough
knowledge of the case and what evidence has been or still needs to be elicited, how the
advocate perceives the tribunal to be responding to the evidence, what parts of the case
could be adequately addressed by reference to the documents, and experience.

5. How not to cross-examine a witness

Failed cross-examination can generally be attributed to two over-arching circumstances:
a lack of understanding of how the witness's evidence is relevant to the case, or a lack of
preparation, or both. This reinforces the need for thorough analysis of the issues in the
case and how a witness may help or harm.
Insufficient preparation usually reveals itself through recitation of a pre-prepared list of
questions, without following up on tantalising answers that they elicit. Another approach,
sometimes seen in conjunction with the first, is when an advocate focuses predominantly
on questions whose answers will not assist the tribunal in determining the issues in
dispute. There are some areas of questioning that an advocate can safely avoid and
thereby shorten their cross-examination. The first area relates to the meaning or the
intention of the author of written documentation. A witness's view of the meaning of a
contractual provision has no probative value. Contractual wording is for the tribunal to
determine, and that determination will not be influenced by what a witness thinks it
means. It is therefore a pointless exercise to try to get a witness to agree that a
contractual provision has a certain meaning. Similarly, there is no point eliciting from a
witness why they wrote an email or other document. The motivation for doing so is rarely
of relevance to a tribunal.
Another series of questions that are of limited value are those aimed at getting a witness
to confirm what a document says or does not say. This sort of questioning comes in
various guises, from asking a witness to read out a letter and having them confirm that it
does not contain a statement about something else, to paraphrasing the content of a

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 letter and asking the witness to confirm the paraphrase. Such questions, and the answers
to them, do not help a tribunal decide the case. Having a witness confirm what has been
written down or omitted merely confirms that a witness can read. However, that is not to
say that a witness should not be brought through a series of correspondence to
contextualise a line of questioning. This can be helpful both to the witness and tribunal.
Similarly, sometimes an advocate needs to devote time to explaining a complex
document in order establish the basis for a line of questioning. For example, a statement
in an annual report of a company may have significance to a party's case, but that
significance may be lost if the witness and tribunal are not provided the full context of
the document. An advocate needs to take the time to lead the witness through the
document so that the significance of the question to be asked can be fully appreciated
by the tribunal. What is important is keeping in sharp focus the purpose of the line of
questions so that the advocate elicits the evidence they require.
A third area of questions to avoid are those that do not in fact relate to an issue between
the parties. Sometimes the advocate may seek to procure an apparent concession about
something that is not disputed (for example that a document was signed on a particular
date). These sorts of questions sometimes take the form of a rhetorical flourish in order to
infer some link between the undisputed fact and an issue that is actually in dispute.
However, such an inference does not help the tribunal to resolve the disputed issue itself.
Some advocates approach cross-examination as an exercise in attacking the credibility
of a witness, even where there is no obvious basis for doing so. The purpose of this style of
questioning is to leave the impression that none of the witness's evidence can be trusted.
There are situations where this approach is not only desirable but necessary. But there
are equally cases where attacking the credibility of a witness is likely to fail. People often
have different genuine recollections of events or different opinions on matters that have
nothing to do with their credibility. The risk of attacking credibility in these situations is
that if the advocate does not succeed in demonstrating the witness is lying, they only
serve to reinforce the witness's credibility to the detriment of the advocate's own case. In
such a situation, the tribunal may, somewhat ironically, come to doubt the advocate's
own credibility: if the advocate has asserted that a witness was lying, but the evidence
suggests this is not the case, the advocate's submission is undermined and the tribunal
may treat their other submissions on the case with increased caution.
Finally, it is never acceptable or appropriate to direct disrespectful comments or other
conduct towards a witness. This is an obvious observation but it is routinely breached, for
example through sarcastic comments in response to a witness's answers, stage whispers
across the bar, laughing at the witness and so on. From the tribunal's perspective, the
repercussions may go beyond taking note of incivility. Such behaviour can be interpreted
as an expression of frustration because the advocate has failed to elicit the evidence
they had hoped for: if so, the advocate has highlighted an evidential shortcoming in their
case and done their client a disservice. Further, if a tribunal considers the advocate's
conduct to be disagreeable or pompous, the advocate may need to work all the harder to
regain the tribunal's trust and persuade them of their client's case.

6. Cross examining expert witnesses

Cross examining expert witnesses, many of whom have years of experience giving
evidence, is arguably an advocate's most challenging task. It requires the advocate to
accumulate sufficient knowledge of technical subject matter to be able to unpick the
conclusions of a professional with years of experience in that subject matter.
Sometimes, the expert is little more than an advocate for the party who has retained
them. In such a situation, the advocate may seek to discredit the expert's evidence on
the basis that the witness does not possess the expertise he claims to have, or that he is a
'hired gun'. More often, however, the witness possesses the requisite expertise and has
been able to present a report that advances a party's case in a way that can be defended
according to reasonably held opinion. It is no mean feat to undermine such a witness.
The preparation and conduct of an expert witness examination is very similar to that of
witnesses of fact. Expert witnesses typically exchange written reports and may also agree
on a list of matters where they share the same opinion, and a list of matters where they
disagree. In addition to the usual preparatory work for an examination, the advocate
must master the area of expertise in question so that he or she can study and interrogate
the parties' expert reports, and from there identify points of attack.

7. Witness conferencing
Witness conferencing has developed as a popular means of taking evidence from expert
witnesses (it is very rarely encountered as a means of examining witnesses of fact). A
conference can take various forms where the questioning may be conducted by the
tribunal, the advocates for the parties and/or the witnesses themselves.
One approach is where advocates begin the conference by cross examining witnesses in
the usual way, followed by a questioning of both witnesses at the same time from the
tribunal. Alternatively, the tribunal's discussion precedes cross-examination. Another
variety of conferencing is where the experts themselves ask each other questions debate
the issues and test their respective cases. This can take place at any stage of the

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 conference, depending on the framework agreed between the parties and the tribunal.
Where conferencing takes the form of successive rounds of questioning, the advocate
needs to be nimble in determining which issues to pursue and which to drop as the
evidence unfolds.
As far as the advocate is concerned, he or she tends to have less control over the witness
in conference than in traditional examination, particularly if the tribunal commences the
conference with its own questions. Witnesses sit together and can be asked questions at
the same time, and can usually comment on the evidence of the other witnesses. Asking
an opponent's witness questions will normally proceed in a manner similar to cross-
examination. Depending on the framework and rules agreed for the conference, the
advocate may be able to seek elucidation of a witness's answer by asking the other
witnesses in the conference to comment. This can be a powerful tool for the advocate, in
that the experience of the other witnesses in conference can be used to undermine an
answer from the witness being cross-examined.

8. Re-examination
Re-examination is frequently viewed as being a relatively minor aspect of the witness
examination process. However, there are instances where re-examination assumes real
significance: damage apparently inflicted in cross-examination may need to be carefully
stitched up by a skilled examiner.
Re-examination is an important tool to clarify evidence. The most common situation is
where a witness has given evidence on an issue but was not taken to a document or other
piece of evidence (usually deliberately) with the result that the witness's evidence does
not take into account some important context. In this situation, the witness should be
reminded of the evidence they gave on the relevant topic and then be invited to
comment on that evidence in light of the document or other evidence that was not
brought to their attention. This simple approach serves to remind the witness and the
tribunal of the issue and the evidence. When done properly, the witness's clarification
can entirely undermine a line of cross-examination which may appear to have interested
the tribunal at the time.
Re-examination should proceed by way of open questions and not leading or closed
questions. As in the case with examination-in-chief, it is important that the evidence
given is in the witness's own words and has not been prompted through leading.
Re-examination should be undertaken only where the advocate deems it necessary.
Where a witness has come through cross-examination relatively unscathed, there is a real
risk that re-examination could undermine that witness's evidence. In those situations, the
advocate should confirm that they have no questions for re-examination. At the other
extreme, where cross-examination has proved to be very effective, it is also usually best
not to try to salvage evidence from the tatters: rarely in this situation can Humpty
Dumpty be put back together again.

9. Practical matters
Finally, advocates need to be aware of a few practical matters that arise frequently in
international arbitration proceedings.
a. Examination by video-link
An advocate examining a witness by video-link needs to be aware of some pitfalls that do
not arise when the witness gives evidence in person. First, the advocate must be satisfied
that the witness gives evidence in an environment where they cannot be prompted by
anyone not visible on camera. This can be achieved in advance by placing multiple
cameras where the witness gives evidence so that their surroundings are visible. In some
instances, an invigilator can sit in with the witness. Second, there may be instances where
the advocate should satisfy themselves that the witness is indeed the person he or she
claims to be. Again, this can be addressed by asking for the witness to show a copy of
their passport or other means of identity for verification by the tribunal. Third, the
parties must ensure that the witness has access to the hearing bundle – either by having
a copy of it physically present with the witness, or by being able to show pages from the
bundle on the witness's computer screen. Finally, the flow of examination by video-link
may need to be slightly slower to ensure that the witness and the advocate do not talk
over each other in the course of their exchanges.
b. Examination through interpreters
Cross examining a witness who does not speak the language of the arbitration is a
common occurrence in international arbitration. The advocate must ensure to keep their
questions short and easily understandable so that they can be understood and
translated by an interpreter without generating confusion. It is preferable for the
interpreter to listen to and translate the advocate's questions and the witness's answers
consecutively rather than simultaneously. This is useful so that if there are speakers of
the foreign language on the tribunal or the parties' legal teams, the accuracy of the
translation can be monitored. Translation inevitably means that the flow of examination
is slower. The advocate should not get frustrated by this, but instead use all the available

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 extra time to think about and adapt where appropriate to the responses given by the
witness.
c. Examination of witness testifying in a non-native language
Another common situation in international arbitration is where the witness has some
facility with the language of the arbitration but may need assistance from time to time
from an interpreter. The advocate must monitor this carefully to ensure that the witness
at all times properly understands the question they are answering. Similarly, where a
witness may have become confused during questioning due to linguistic
misunderstanding, an advocate must be able in re-examination to identify the confusion
and give the witness the opportunity to respond once that confusion has been cleared.

IV. Suggested Reading

1. Key Commentary
2. Recent Blog Posts
http://arbitrationblog.kluwerarbitration.com/2020/11/05/conferencing-economic-
experts-streamlining-t...
http://arbitrationblog.kluwerarbitration.com/2020/02/03/how-do-we-get-the-best-out-
of-cross-examinat...
http://arbitrationblog.kluwerarbitration.com/2019/01/18/a-teaching-session-for-the-
efficient-managem...
http://arbitrationblog.kluwerarbitration.com/2018/10/14/its-all-chinese-to-me-
preparing-and-cross-ex...
http://arbitrationblog.kluwerarbitration.com/2014/12/26/the-witness-statement-as-
disclosure/

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