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CROSS-EXAMINATION IN THE ARBITRATION PRACTICE: ART OR LEARNED SKILL?

Leonardo de Campos Melo[1]

Larry Pozner [2]

 

Francis Wellmann’s classic “The Art of Cross-Examination”, published in 1903 and still in publication, is built around a series of high profile cases in which renowned trial lawyers of the 19th Century and early 20th Century delivered great cross-examinations. Both by its title and its contents, Mr. Wellmann´s brief book helped perpetuate the view that cross-examination is an art and that it can therefore only be effectively performed by a very few gifted attorneys.

The supposition that cross-examination is an art can be traced back at least as far as ancient Rome. The great orator and lawyer Cicero counseled “nothing an advocate does is simple, but of all the things an advocate must do, by far the most difficult, the most complex, and the most subtle is cross-examination. (…) The talent to cross-examine is a rare commodity. No more than three lawyers in all of Rome have it, and sometimes I wonder whether I myself am one of them”.[3]

We are in no position to judge the general quality of cross-examinations in the early 20th century, let alone in ancient Rome. However, we now benefit from a far greater understanding of how people learn, form beliefs, and arrive at decisions. Armed with this better understanding of how a fact-finding audience behaves, we can add out knowledge of how the logical construction of stories can subtly cause adverse witnesses to be more honest. We can then add techniques of preparation that relieve us of the strain of inventing our crosses during our witness examinations.

We disagree with the view that effective cross is an art. In fact, it is our proposition and our observation that effective cross-examination is built on a foundation of well-understood techniques of preparation and delivery. The techniques of powerful cross-examination can be described, learned, and performed. These techniques are part of the skill-set of the trained advocate.

We recognize that cross in commercial arbitration is different from cross before state courts in common-law jurisdictions. As a result of a multicultural practice developed over many decades, especially from the second half of the 20th century until today, the current mainstream practice of cross-examination in commercial arbitration deals differently with witness impeachment, objections, control of witnesses, the use of leading questions, rules of evidence, etc. However, that does not change the very essence of cross-examination, which is a composite of many techniques designed to bring out the truth to the fact finder, i.e., to the arbitrators.

An arbitration is far less a search for the truth and far more a revelation of the truth. We cross our opposing parties, their witnesses, their experts and the exhibits to tell a series of stories. The stories are those critical to our theory of the case or important to undermining our opponent’s theory.

We have long had the right to call our opposing parties and their agents for cross, and now we have the tools that make that a powerful tactic. In addition, when we are defending, we can often prove our case based on our cross of the plaintiff and plaintiff’s witnesses. Modern arbitration advocacy is much more reliant on cross-examination than was historically the case, not because more lawyers are “artists” but because more lawyers are educated in the fundamentals of effective cross-examination.

In order to discuss the nature of modern cross, it is helpful to discuss what cross is not.

Cross-examination is not a discovery device. We question the counter party and its fact and expert witnesses to bring out facts of importance to our theory, not to search for new facts. Of course when an answer provides new and useful information we should seize upon that opportunity, but we are at our strongest when we plan the stories we need to tell, when we physically prepare those stories, and when we execute that plan in cross-examination.

Cross examination is not about “beating” the witness. And cross is not about trickery or showmanship. Cross-examination is specie of teaching, not of warfare or gamesmanship. Cross is the principal tool by which we compel the counter party and its witnesses to admit facts that establish factual issues of value. Our cross provides the factual context in which a fact-finder, i.e., the arbitral tribunal, can recognize both the point we are making and the importance of that point in deciding the matter.

And cross examination is not a wild and unchoreographed dance with the witness and the counter party. Instead, cross is a series of interactions between a prepared lawyer and a counter party and witness whose testimonies are generally bounded by the rules set out in conjunction by the parties and the arbitral tribunal or solely by the arbitral tribunal with expected patterns of human behavior.

The sum of all these aspects of cross is this: well-executed cross-examinations are far more the product of science than of art. We have at our disposal understood techniques of preparation and delivery of cross that are designed to bring out the truth. There are techniques designed to lower the ability and the desire of the witness to evade or deceive. And there are techniques of cross that we can reliably call upon when we need to impeach selected portions of the witness’s testimony.

If this were not true, arbitration would be adrift as a real system of justice. A system designed to fairly adjudicate disputes cannot be made dependent upon the relative “artistry” of the competing lawyers. The facts are of supreme importance and we, as a profession, can teach, learn, and apply techniques designed to reveal the facts and to do so in ways that allow arbitral tribunals to understand their significance.

So let us set aside antiquated notions of cross-examination as an art. It is a learned skill. And this skill is a composite of many techniques we can describe, study, and we employ in situations that repeat throughout our careers.

In our next Blog entry, we are going to present some of the current practices that have been applied by arbitral tribunals in Brazil and abroad and discuss whether these practices help or undermine the ability of attorneys to effectively present their cases.

 


[1] Leonardo de Campos Melo is a partner at Sergio Bermudes Advogados, with extensive practice in complex domestic and international commercial arbitration cases. Leonardo authored books and articles in Brazil and abroad, including “Recognition and Enforcement of Foreign Arbitral Awards in Brazil – A Practitioners´ Guide” (published by Kluwer Law International) and lectures on Arbitration at the PUC-Rio Post-Graduate Program, and on Cross-Examination at the arbitration course run by the Brazilian Bar Association, Rio de Janeiro Section.

[2] Larry Pozner is the United States’ acknowledged authority on cross examination. His unique full-day programs on cross have been presented throughout the US, Canada and Brazil. Larry is co-author of America’s best selling treatise “Cross Examination: Science and Techniques” (published by Lexis Law Publishing). He is a trial lawyer, founding partner at Reilly Pozner LLP, with over forty years of trial experience in complex commercial cases and criminal defense.

[3] KEHOE, Edward G. “Cross-examination and re-cross in international arbitration”, in The Art of Advocacy in International Arbitration. Juris Published. Huntington, New York, 2010, p. 405.

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