A counsel's guide to examining and preparing witnesses in international arbitration / Ragnar Harbst.
2015
K2400 .H368 2015 (Map It)
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Details
Author
Title
A counsel's guide to examining and preparing witnesses in international arbitration / Ragnar Harbst.
Published
The Hague, The Netherlands : Kluwer Law International, [2015]
Call Number
K2400 .H368 2015
ISBN
9789041166111 (hbk.)
9041166114 (hbk.)
9041166114 (hbk.)
Description
xiv, 241 pages : illustrations ; 25 cm
System Control No.
(OCoLC)940422761
Summary
"Drawing on the principles of the art of advocacy in the common law tradition, this persuasive and highly engaging book sets out, in great detail, the practical techniques applicable to the use of witnesses in arbitration. The book will be particularly useful for arbitration practitioners who have had little exposure to the adversarial approach to evidence and who wish to learn the ropes of lawyer-led witness examination and preparation."-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Preface
xiii
ch. 1
Importance of Witnesses: Where the Documents End
1
ch. 2
Differences between Common Law and Civil Law Systems in Regard to Witness Examination
5
1.
Big Divide
5
2.
Inquisitorial versus Adversarial
6
3.
Subject Matter of the Hearing Phase
8
4.
Weight Put on Oral Evidence
9
5.
Who Can Be a Witness?
9
6.
When to Offer Witnesses
11
7.
Examination by the Judge or by the Lawyers
11
8.
US-American Litigation versus Arbitration
13
ch. 3
Convergence of the Two Systems
15
ch. 4
Sources of the Rules of Taking of Evidence in Arbitration
19
1.
Specific Procedural Rules
19
2.
IBA Rules on the Taking of Evidence in International Arbitration
23
ch. 5
Early Decisions: Which Method of Witness Examination Is the Best (for the Specific Case)?
25
1.
Which Method of Witness Examination Is Preferable for the Case?
25
1.1.
Nature of the Case
26
1.2.
Nature of One's Own/the Opposition's Witnesses
28
1.3.
Knowing One's Own/the Opposing Counsel's Nature
30
1.4.
Will the Tribunal Feel Comfortable with the Choice?
30
1.5.
Costs
31
2.
How to Get There
31
2.1.
Arbitration Clause
32
2.2.
Composition of the Tribunal
33
ch. 6
Direct Examination
35
1.
Tools or the Trade: Techniques in Direct Examination
38
1.1.
Non-leading Questions for the Crucial Parts of the Examination
38
1.2.
Keeping One's Eye on the Witness and Listening Carefully
41
1.3.
Avoid Getting Ahead of the Tribunal: Keep a Leisurely Pace
42
1.4.
Identifying Relevant Documents Properly
42
1.5.
"Can I Just Clarify with the Witness...": Being Prepared for Interruptions
45
2.
How to Develop an Understandable, Memorable and Convincing Direct Examination
46
2.1.
Importance of Structure
47
2.2.
Less is More: Overloading the Direct Examination with Information Must Be Avoided
48
2.3.
Using Enumerations
51
2.4.
First Impressions Count, Last Impressions Stay: The Correct Sequence for Witnesses, Issues and Arguments
52
2.4.1.
Primacy and Recency Effects
52
2.4.2.
Recency Effect Fades If There Is a Delay between the Presentation and Decision Making
54
2.4.3.
First Presentations Are More Likely to Be Perceived as Anchors
55
2.4.4.
Presenting the Best Arguments and the Best Witnesses First Is What Arbitrators Expect Counsel to Do
58
2.4.5.
Guidelines for Sequencing Witnesses and Arguments
58
2.5.
How to Deal with Disadvantageous Facts
59
2.6.
Can the Witness Use Notes during the Examination?
62
ch. 7
Witness Statements
67
1.
Purposes of Witness Statements
67
2.
Abuses of Witness Statements
68
3.
Basic Elements of a Witness Statement
69
3.1.
Introductory Part
69
3.2.
Main Part
70
3.3.
Final Part
72
4.
Drafting of the Witness Statement
73
4.1.
Indispensable: Meeting the Witness
75
4.2.
Typical Flow of Interview Questions: Open - Probe - Direct
76
4.3.
Recommendations for Drafting Clear and Comprehensible Witness Statements
78
4.3.1.
Usage of the First Person Singular
78
4.3.2.
Short Sentences
79
4.3.3.
Subject and Verb Positions
80
4.3.4.
Nominalizations and Verbs
81
4.3.5.
Choosing Suitable Subjects
81
4.3.6.
Active Voice and Passive Voice
82
4.3.7.
Unnecessary Adjectives and Adverbs
83
4.3.8.
Legalese and Lawyerisms
84
4.3.9.
Effective Headings
84
4.3.10.
Executive Summaries
85
5.
Point of Time for Filing the Witness Statements
85
5.1.
Filing of Witness Statements Together with the Written Submissions or Separately
86
5.2.
Rebuttal Witness Statements
87
5.3.
Simultaneous or Consecutive Filing?
87
5.4.
Which Method Is Preferable?
88
6.
Attaching Documents to Witness Statements
88
7.
Pros and Cons of Witness Statements as Direct Evidence
89
8.
Who Decides whether Witness Statements Stand as Direct Evidence?
90
9.
Introducing a Witness Statement as Direct Evidence
90
10.
Special Problems
91
10.1.
"No-Show" Witness
91
10.2.
"No-Statement" Witness
93
10.3.
Witnesses Requested by the Tribunal
95
ch. 8
Cross-Examination
97
1.
Purposes of Cross-Examination
98
1.1.
Show That the Witness' Testimony Is Not Safe to Rely On
98
1.2.
Have the Other Side's Witnesses Corroborate the Factual Basis of One's Own Claims
98
1.3.
Eliciting Information
99
1.4.
Some Tips for Cross-Examination in the Unknown: When to Ask Questions to Which One Does Not Know the Answer
101
1.4.1.
Answering Questions with Questions
101
1.4.2.
Omissions and Incomplete Statements
102
1.4.3.
Lack of Self-Reference
103
1.4.4.
Euphemisms
104
1.4.5.
Equivocation
104
1.4.6.
Changing the Issue
105
1.5.
Educating the Tribunal
107
2.
Scope of Cross-Examination
107
3.
Tools of the Trade
109
3.1.
Tone and Style
109
3.2.
Leading Question
111
3.3.
One Fact per Question
112
3.4.
Referring to Exhibits Properly
113
3.5.
No Inflationary Use of Filling Words, Question Tags and Other Padding
113
3.6.
Using Silence
114
3.7.
Maintaining Eye Contact with the Witness
114
4.
Techniques for Impeaching the Witness
115
4.1.
Ad Rem: Damaging the Credibility of the Testimony
116
4.1.1.
Showing Contradictions and Inconsistencies
116
4.1.1.1.
Laying the Foundation
117
4.1.1.2.
Recommitting the Witness to His or Her Prior Statement
118
4.1.1.3.
Confronting the Witness
118
4.1.2.
Showing a Lack of Substantiation
120
4.1.3.
Showing Improbabilities or Implausibilities
121
4.1.4.
Showing a Lack of Relevance
122
4.1.5.
Knowing when to Stop
123
4.1.5.1.
Stop Drilling when You Hit Oil
123
4.1.5.2.
When You Are Riding a Dead Horse, Dismount
126
4.1.5.3.
If You Feel the Heat, Don't Get Closer to the Fire
126
4.2.
Ad Hominem: Damaging the Credibility of the Witness
127
5.
Structuring the Cross-Examination
128
5.1.
Step 1: Determining the Pillars of the Cross-Examination
130
5.2.
Step 2: Determining the Macrostructure for Each Pillar
131
5.3.
Step 3: Developing the Microstructure for Each Item of the Macrostructure
132
6.
Objections during Cross-Examination
136
7.
Dealing with Interruptions by the Tribunal
142
8.
Dealing with Runaway Witnesses
143
9.
Cross-Examine by All Means?
146
9.1.
Don't Fix It If It Ain't Broke
146
9.2.
If You Can Do No Good, Do No Harm
147
9.3.
Rule of Browne v. Dunn
148
ch. 9
Re-examination
153
1.
Purpose of Re-examination
153
2.
Scope of Re-examination
155
3.
Re-examine by All Means?
157
ch. 10
Witness Conferencing
159
ch. 11
Organizing the Hearing
163
1.
Pre-hearing Conference
163
2.
Place and Duration of the Evidentiary Hearing
163
3.
Sequence of Witnesses
165
3.1.
Who of the Witnesses Offered Must Appear at the Hearing?
165
3.2.
Can Arbitrators Ask for Testimony of Witnesses Who the Parties Have Not Offered?
167
3.3.
Sequence of Witnesses
168
3.4.
Can Witnesses Attend the Examination of Other Witnesses?
169
4.
Allocation of Time
170
5.
"For the Record...": How to Record the Hearing
171
ch. 12
Preparing the Witness
175
1.
Purposes of Witness Preparation
176
2.
Legal and Ethical Boundaries of Witness Preparation
179
2.1.
England & Wales
180
2.2.
Germany
181
2.3.
IBA Guidelines on Party Representation in International Arbitration
181
3.
Psychological Risks of Content-Specific Witness Preparation
183
3.1.
Inadvertent Inducement of False Testimony
183
3.2.
Inadvertent Distortions of the Recollection Process
184
3.2.1.
Way Human Memory Works
184
3.2.2.
Any Reconstruction of Past Events Can Change the Recollection
185
3.2.3.
Influencing the Testimony Due to Anchoring Effects
186
3.2.4.
Influencing the Testimony Due to Framing Effects
187
3.2.5.
Lessons to Be Learned
189
3.3.
Preparation Can Reduce the Witness' Authenticity and Credibility
189
4.
Balance of Powers between the Examiner and the Witness
190
5.
General Preparation
190
6.
Preparing the Witness for Direct Examination
192
6.1.
Preparing Content
192
6.2.
Guidelines for the Witness during the Direct Examination
195
6.2.1.
Listen to the Full Question
195
6.2.2.
Take Your Time when Answering the Question
196
6.2.3.
Avoid (Extended) Narrative Answers
196
6.2.4.
Avoid Jargon
196
6.2.5.
Include the Tribunal when Answering
197
6.2.6.
Avoid Jokes, Sarcasm, Irony, Etc.
197
7.
Preparing the Witness for Cross-Examination
198
7.1.
Preparing Content
198
7.1.1.
How to Devise Appropriate Lines of Questioning for a Mock Cross-Examination
198
7.1.2.
Format of the Preparation
199
7.2.
Guidelines for the Witness during Cross-Examination
199
7.2.1.
Always Tell the Truth
200
7.2.2.
Listen Carefully to the Questions and Take Your Time before Answering the Questions
201
7.2.3.
Do Not Answer Questions You Don't Fully Understand
202
7.2.4.
Always Ask for the Document
203
7.2.5.
Answer the Question That Was Asked
204
7.2.6.
Do Not Volunteer Information
206
7.2.7.
Avoid Speculations: Say "I Don't Know" If Necessary
207
7.2.8.
Don't Argue with the Cross-Examiner: Avoid Humor and Wisecracks
209
8.
Preparing the Witness for Re-examination
211
Appendices
213
Appendix I
Sample Procedural Questionnaire
215
Appendix II
Sample Procedural Rules
219
Appendix III
Sample Witness Statement
227
Appendix IV
Sample Hearing Schedule
231
Index
233