2010 Juris conference on ´Cross-Examination in International Arbitration´

Konfliktlösung / Prozesse & Schiedsverfahren

The 2010 Juris conference on ´Cross-Examination in International Arbitration´, which took place in Vienna on 5 November, began with a self-described "recovering American trial lawyer" sharing the wisdom gained from his previous life and ended with a mock cross-examination that proved that continental lawyers do not lack the tenacity of their common-law brethren. Jarred Pinkston , of Graf & Pitkowitz in Vienna, reports.

Conference Report

The 2010 Juris "Cross-Examination in International Arbitration" Conference, which took place in Vienna, Austria on November 5, 2010, began with a "recovering American trial lawyer" sharing the wisdom gained from his previous life and ended with a feisty mock cross-examination that proved that continental lawyers do not lack the tenacity of their common law brethren. Jarred Pinkston, of the Viennese law firm Graf & Pitkowitz Rechtsanwälte, reports.

The day began with Ben Sheppard (the attorney in recovery referenced above) setting forth his eight proven tactics for effective cross-examination: (1) be prepared; (2) ask leading questions; (3) only ask questions you know and can prove the answer to; (4) keep the questions simple; (5) do not let the witness get away with repeating his or her direct testimony; (6) avoid the temptation to argue with the witness; (7) argue in the closing - that is the proper time; and (8) use cross-examination to highlight positive documents. Another nugget of wisdom imparted by the speaker included that if there is an important issue and an answer to a question relating to that issue exists that could hurt the cross-examiners case, then that will invariably be the answer the cross-examiner will receive. The speaker also introduced the mostly European crowd to the phrase "crawdads muddying up the water", a peculiarly southern U.S. term referring to a small crustacean that leaves a muddy plume as it scurries along the bottom of a running body of freshwater. The speaker used the term to emphasize the importance of keeping a witness from distracting from the key points a cross-examiner wants to focus on during cross-examination.

Larry Newman then took the floor to speak about the general state of cross-examination. Cross-examination is, alas, a dying art in the United States because every year fewer cases go to trial. With fewer cases going to trial, the skill sets of experienced cross-examiners atrophy while the skill sets of the younger generation lag in gestation. However, international arbitration provides fertile ground for the art of cross-examination because of the growth of the field and nature of the witnesses. Witnesses in international arbitration are often important executives who fail to do their homework before a hearing. The speaker then introduced the crowd to the ostensibly lewd term "hot tubbing", which he used to describe the process of the tribunal speaking with multiple witnesses at the same time. Although the speaker did not use the term in the lewd sense, he did use the term in a pejorative sense as the speaker expressed his belief that the process generally lacks utility and any utility is limited to hot tubbing with two expert witnesses. The speaker also gave the practical tip that a cross-examiner should avoid words such as "this" or "that" or "it" when conducting cross-examination because, regardless of how it may sound in real time it, such words will invariably diminish the comprehensibility of the final transcript.

A brief introduction to cross-examination against the clock was given by Richard Kreindler (Germany). Kreindler emphasized that the purpose of the clock was not to torment attorneys but to impose some kind of structure on the cross-examination process. Another benefit (or disadvantage depending on one´s perspective) to cross-examination against the clock is that it removes the "wearing down" element of cross-examination, whereby a witness is simply exhausted by an extended period on the witness stand and starts to make mistakes.

The next phase of the conference entailed a freewheeling panel discussion between a number of exceedingly experienced cross-examiners. The discussion followed no particular structure and was peppered with stories of the panelists´ own experiences. Pierre Karrer (Switzerland) shared his civil law grounded view that no arbitrator has ever been unhappy with an attorney cutting cross-examination short; a reasonable view, but one that may not take into consideration the blood sport quality some common law attorneys see in the process. A fellow civil law attorney (Christoph Liebscher of Austria) added that, regardless, clients often desire to see their opponent destroyed on the witness stand and that this can factor into the decision of how far to go with cross-examination. Liebscher added that attorneys need to be cognizant of the dilemma faced by all attorneys: attorneys are trained to speak and not to listen. An attorney needs to pay close attention to the questions asked by the tribunal and to rein in any unnecessary speaking. To emphasize his point that lawyers, at times against their best interest like to talk, Liebscher drew attention to how long it took him to convey this point.

Steven Molo (U.S.A.) postulated that three reasons exist for cross-examination: (1) to discredit the witness; (2) discredit the witness´s testimony; and/or (3) make points for your own case. Attempting to discredit a witness per se is not generally a fruitful endeavor unless you have some concrete damaging proof of that witness´s lack of credibility (e.g., fraud conviction) but, despite this, attorneys nevertheless often attempt to do so. The third reason (use to prove own case) provides more opportunities than many attorney believe because often the witnesses for the other side will have access to information that an attorney´s own witnesses do not and cross-examination provides an opportunity to mine this information.

Christopher Harris (United Kingdom) discussed the joys of going "off-piste" (a particular apt metaphor given the Austrian setting) to get valuable information via cross-examination. If a cross-examiner does not go "off-piste" the risk exists that the testimony that an attorney obtains is nothing more than the opposing attorney´s words regurgitated through the mouth of the witness because the witness will invariably be prepared for the foreseeable/obvious questions. Harris also counseled against re-direct because it simply highlights and zeros the tribunal in on the weakness of your case or the strength of your opponent´s case. Later on in the discussion, Harris shared a real life story to emphasize the importance of thinking outside the box to discredit a witness: An expert witness in one case claimed a particular expertise because of a university degree he had earned. Opposing counsel, after doing his homework, held up a degree during cross-examination and asked the expert if he recognized the degree, to which the expert responded "yes, I have the same degree". The attorney then informed the tribunal that the degree belonged to his dog who had purchased it on-line the night before; needless to say that expert´s testimony did not carry the day.

Kreindler, who had previously spoken about cross-examination against the clock, added some of his observations and experiences to the discussion. One general strategic point offered was the practice of having a younger female attorney conduct cross-examination in international arbitration because of the tone they set and their ability to disarm a witness pre-disposed to being standoffish to opposing counsel. The speaker shared a real example of the importance of looking at the nuances of each case in preparing for cross-examination. The speaker had a case that turned on whether the parties had had a meeting of the minds during negotiations, one party being a native English speaker and the other not. The contract and arbitration were in English but rather than introducing a eloquently worded witness statement, the non-native speaking witness was asked to write his own witness statement with all the inherent shortcomings of that witness´s knowledge of English. Once the witness took the stand, the effect of his broken English, which perfectly conformed to the tone of his witness statement, was devastating to the native English speaker´s claim that there had been a meeting of the minds because it had become abundantly clear that the non-native English speaker lacked the language skills necessary to reach a meeting of the minds during real-time negotiations.

The day ended with a mock cross-examination conducted before a live tribunal. A common law attorney and a civil law attorney were called upon to represent their respective legal traditions. Markus Koehnen (Canada) performed a text book cross-examination that focused on discrediting the witness, while Anne Véronique Schlaepfer (Switzerland) took a more methodical approach that focused on the meat of the faux dispute. Defying cultural stereotypes, the Swiss attorney proved feistier and was informed by the chairman (Sheldon Elsen - U.S.A.) of the tribunal that if this was the real world she would "have had her head handed to her on a plate" - only partially in jest.


Dr. Nikolaus Pitkowitz

M.B.L.-HSG Partner