take the witness - mcmillan llp - take the witness_ cross-examination in...34 take the witness:...

TAKE THE WITNESS:

CROSS-EXAMINATION ININTERNATIONAL

ARBITRATION

Lawrence W. Newman

and

Ben H. Sheppard, Jr.

Editors

JURIS

CHAPTER 3

CONFRONTATION - TECHNIQUES FORIMPEACHMENT

J. William Rowley, Markus Koehnen and Robert Wisner

In the climactic scene of many Hollywood legal dramas, thecrusading trial lawyer, through vigorous cross-examination, succeedsin destroying the credibility of the star witness for the opposition. Intechnical terms, the witness has been "impeached". The trial lawyerhas accomplished this by confronting the witness with a reliablestatement or proposition that contradicts the earlier testimony,thereby diminishing the witness' credibility in the eyes of the jury.

The successful impeachment of a witness, like successful cross-examination generally, is the subject of many books and articles ontrial advocacy techniques.1 These techniques are discussed below asthey provide a strong foundation for advocacy before internationalcommercial arbitration tribunals.

However, traditional trial advocacy techniques cannot betransplanted into the field of international commercial arbitrationwithout adaptation to the unique procedures and culture that governthis form of dispute resolution. The purpose of trial advocacy is topersuade the decision-maker. Traditional courtroom advocacy may beless persuasive where the decision-makers are professional arbitratorsrather than lay juries, where the arbitrators have already readextensive pre-hearing submissions (including documents and witnessstatements) and where the strict rules of evidence do not apply.

1 See for example, , inter alia,, S. Lubet, Modern "Trial Advocacy: Analysis and Practice(NITA, 1995); L.S. Pozner and RJ. Dodd, Cross-examination: Science and Techniques(Charlottsville, VA: The Michie Company, 1993) and P. Bergman, Trial Advocacy ina Nutshell (St. Paul: Thomson/West, 2006)

31

32 Take the Witness: Cross-Examination in International Arbitration

WHY IMPEACH

Impeachment to Attack Credibility

If impeachment consists of diminishing the credibility of anopposing witness, then it may appear that the purpose of confrontingthe witness with a contradictory document is self-evident. If anopposing party is relying on a witness, then impeachment of thewitness will diminish the party's ability to do so. QED.

Yet, the decision to confront a witness for the purpose . ofimpeachment is rarely straightforward, even if there is a high degreeof certainty that a successful impeachment is possible. Manycommonly cited reasons for confronting a witness, rather thanleaving the point for closing argument, do not apply in internationalarbitration. For example, some trial advocacy texts recommendimpeachment of the witness in order to make an immediate impacton the judge or jury.2 However, in most international arbitrations,such as those where the I.EL4 Rtt/es on the Taking of Evidence inInternational Commercial Arbitrations are used as a guide, theexamination-in-chief is replaced by a written witness statement.3

Insistence that the witness appear for an attempted impeachment(assuming the testimony to be impeached is not pivotal) may thenonly serve to highlight a point that would otherwise have beenforgotten in the mass of pre-hearing written submissions.

Another frequent rationale for impeachment in trial advocacy isthat common law systems may treat the failure to cross-examine awitness on a material point as an admission of the truth of thattestimony. However, this issue is frequentiy dealt with by agreementof counsel, and the common law rule is expressly overridden byArticle 4(9) of the ZBL4 'Rules which provides that:

If the Parties agree that a witness who has submitted a WitnessStatement does not need to appear for testimony at an Evidentiary

2 Bergman, supra, at 3263 IBA Rules, Article 4(4)

Confrontation—Techniques for Impeachment 33

Hearing, such an agreement shall not be considered to reflect anagreement as to the correctness of the content of the WitnessStatement.4

Thus, careful consideration should be given to whether anyconfrontation is necessary to diminish the credibility of an opposingwitness.

Nonetheless, where good impeachment evidence is available, itoften makes sense to confront the witness with it. Even if there is norule of evidence deeming a failure to cross-examine on a materialpoint to be an admission of truth, this is often a logical inference. Afailure to cross-examine permits counsel opposite to argue, withsome justification, that the testimony should be accepted as true.5

Successful confrontation of the witness eliminates this risk andbolsters the impact of any closing argument regarding the credibilityof the witness.

Impeachment To Establish the Truth

The purpose of impeachment may be to establish the truth of aproposition rather than simply to diminish the credibility of anopponent's witnesses. Even where the opposing witness' testimony isnot needed to introduce evidence into the record, confronting thewitness with this evidence may lead to a helpful admission that theevidence is true.

A cross-examining attorney must perform a careful risk-benefitanalysis before attempting to carry out an impeachment for thepurpose of establishing the truth of a fact that can be established byother evidence. The risk is that an unsuccessful cross-examinationwill allow a witness to explain away or diminish the significance ofthis evidence. The benefit is that, if the witness admits the truth ofthe evidence, this admission will carry additional weight with thearbitral tribunal. A fact admitted by an opposing witness has greatercredibility than the same material testified to by the cross-examiner's

4 IBA Rules, Article 4(9)5 J. Sopinka, The Trial of an Action, 2nd ed. (Toronto: Butterworths) at 88


witnesses. A fact eventually admitted over protest is given even moreweight, as is a fact admitted by an opposing witness which theopponent has attempted to hide or deny.6

Impeachment to Argue Your Case

Impeaching a witness is not necessarily making a witness out to bea liar. Indeed that rarely occurs, particularly in commercial cases andeven less so in international commercial arbitration cases. It is moreoften a question of impeaching a witness on the overall credibility ofthe other side's theory of the case. Put another way, it is in someways a form of final argument. If so, why not wait until finalargument? First, it is critical to develop the theory of your case at theoutset and to attack the theory of your opponent's case. But, bear inmind that a constant, overt attack becomes repetitive and boring. Amore subtle attack through the elicitation of "facts" becomescompelling and persuasive. Second, a series of admissions from youropponent's witnesses that undermines the commercial credibility oftheir case makes a tribunal far more receptive to your position than asimple argument from counsel. Third, saving a number of detailedquasi-factual arguments for closing makes a closing tedious andineffective. Far better to have a larger theme to drive away at in aclosing that refers back to evidence as examples to support the themerather than building it in closing for the first time.

By way of example, in a commercial case where the issue turns onwhether the parties reached a verbal agreement on a particularcontractual point, you may want to ask yourself who within theorganization would need to know about that point, from a businessperspective. Common examples might include the manufacturing,sales and finance departments of an organization. Then ask yourselfwhat types of documents these departments might generate thatmight record the business effect of the issue. Kxamples mightinclude:

Pozner and Dodd, supra, at p.279


— memos to the contractual negotiating team;

— memos to the CEO summarizing the contract;

— memos to the Board of Directors summarizing the contract;

— memos, budgets, planning or costing documents to themanufacturing group;

— budgets, planning or costing documents to the salesdepartment; and

— budgets, planning or costing documents to the financedepartment.

After identifying the various groups that would have to know aboutan understanding between the parties and the various documents thatwould be generated to reflect that view, consider examining anofficer of your opponent on the list of the documents that they havenot produced which would be expected to reflect or memorialize thecorporation's understanding of the issue. This may be an effectiveway of attacking the commercial credibility of your opponent's case.

Must You Impeach? The Common Law Rule inBrowne v. Dunn

In international arbitration, documents are self-authenticating anddo not need to be proven by a sworn witness in order to be part ofthe evidentiary record.7 Thus, it is possible to attack a witness'credibility by referring to contradictory documents in closingargument or -written post-hearing briefs, even if a witness has not

7 A. Redfern and M. Hunter, Law and Practice of International Commercial Arbitration,4th ed. (London: Sweet & Maxwell. 2004) at p.298 ("In international commercialarbitration, the best evidence that can be presented in relation to any issue of fact isalmost invariably contained in the documents which came into existence at the timeof the events giving rise to the dispute. This contrasts with the presentation ofevidence in national courts in common law systems where most facts are proved bydirect oral testimony, and even documentary evidence must in principle beintroduced by a witness").


been confronted with these documents and no other witness cantestify to their accuracy.

This strategy of leaving attacks on credibility to closing argumentavoids the risk that the witness will launch into an immediateexplanation that undercuts the value of the impeachment.8 This risk isespecially high in international arbitrations, where the practice of filingall documents (together with written submissions discussing theirsignificance) well before the hearing,9 gives counsel ample opportunityto prepare witnesses to respond to attempted impeachments.

In common lav/ systems, a trial lawyer may be precluded fromadopting this strategy of attacking the credibility of a witness inclosing argument, or even introducing evidence for that purpose,without having confronted the witness on the point at issue. This ruleis often known by reference to the decision of the House of Lords inTSronwne v. Dunn™ where Lord Herschell stated:

Now my Lords, I cannot help saying that it seems to be absolutelyessential to the proper conduct of a cause, where it is intended tosuggest that a witness is not speaking the truth on a particularpoint, to direct his attention to the fact by some questions put incross-examination showing that that imputation is intended to bemade, and to take his evidence and pass it by as a matter altogetherunchallenged, and then, when it is impossible for him to explain, asperhaps he might have been able to do if such questions were putto him, the circumstances which it is suggested indicate that thestory he tells ought not to be believed, to argue that the witness isunworthy of credit.

Put more succinctiy, the rule in Browne v. Dunn implies that "ifcounsel is considering the impeachment of the credibility of a witnessby calling independent evidence, the witness must be confronted withthis evidence while he or she is still in the witness box."11

8 Bergman, supra, at 3269 IB-A. Rules on the Taking of Evidence in International Commercial Arbitrations, Article 3(1)10 (1893), 6 R. 67 (U.K.H.L.).11 J. Sopinka et. al., The Law of Evidence in Canada, 2d. ed. (Toronto: Butterworths,1999) at 16.146


Where the rule in Browne v. Dunn is violated, common law courtsmay either:

i. refuse to admit the contradictory evidence that was not put tothe witness;

ii. admit the evidence, but allow the witness an opportunity togive reply evidence;12 or

iii. admit the evidence, but give it little or no weight.

The rule in Browne v. Dunn, like other formal rules of evidence, is notbinding on international tribunals. Absent any restrictions in thearbitration agreement, international tribunals have "the power todetermine the admissibility, relevance, materiality and weight of anyevidence."13 Arbitrators from civil law systems, where judges take thelead in questioning witnesses, are unlikely to be familiar with rules ofevidence that are designed for the adversarial common law approach.Even experienced international arbitrators from common lawsystems, who will have been influenced by the civilian approach, willoften be reluctant to be limited by what they perceive to be"technical" rules.14

Yet, the rule in Browne v. Dunn is more than just a "technical" rule.Procedural fairness often requires giving a witness the opportunity torespond to an accusation that a document or other evidencecontradicts his or her testimony. In a case with a common law chair,or a majority common law panel, the failure to confront may putyour plans at serious risk. Even where the strict rules of evidence donot apply, international tribunals may still exclude evidence based on"considerations of fairness or equality of the Parties that the Arbitral

12 In the U.S., Federal Rule of Evidence 613(b) provides that -where extrinsicevidence of a prior inconsistent statement is offered, one cannot excuse a witnessfrom giving further testimony at the conclusion of cross examination. This allowsthe proponent of the witness to recall the witness to offer an explanation of theinconsistency. See P. Bergman, supra, at 32613 See, e.g., UNCITRAL Model Law, Article 19(2). IBA Rules, Article 9(1)14 A. Redfern and M. Hunter, supra, at p.296


Tribunal determines to be compelling".15 Lord Herschell's underlyingrationale for the rule he articulated in Browne v. Dunn involvesconsiderations of fairness that may be recognized even byinternational tribunals that do not apply strict rules of evidence.

While the complete exclusion of evidence based on the rule inBrowne v. Dunn will rarely be ordered in international arbitration, acompelling closing argument can be made that the attemptedimpeachment of a witness should be given little weight where the•witness was not given an opportunity to explain the apparentlycontradicting evidence. In order to avoid this argument, confrontingthe witness with the evidence may be the most prudent course ofaction.

WHEN TO IMPEACH

The Need for A Clean Impeachment

Impeachment generally should not be attempted unless there isreliable evidence that clearly contradicts or undermines the witness.A failed impeachment is usually worse than no impeachment at all.The witness' denial of your allegation will go unrebutted, therebyreinforcing the witness' testimony. At the same time, the lawyer -whohas unsuccessfully attempted the impeachment will look ineffectiveor overbearing16

For example, considering the following attempt to impeach awitness to a robbery by a prior inconsistent statement:

Q. You testified in chief that the bank robbers drove away in ablue car, correct?

A. Yes.

Q. You gave a statement to the police right after the robbery,didn't you?

A. Yes.

15 IBA Rules, Article 9(2)(g)16 Lubet, supra, at 113, 115;


Q. You told the police that the robbers drove off in aturquoise car?17

Rather than undermining the credibility of this witness, the lack of atrue inconsistency between a "blue" car and a "turquoise" car onlyreinforces the witness' earlier evidence.

Counsel should also avoid attempts to create an inconsistency inprior statements that contain explanations or clarifications. Suchattempts can be met with an immediate objection that counsel isbeing misleading by failing to read out the full statement. Even wherethere is no immediate objection, re-direct examination will allowopposing counsel to introduce the explanatory language andundermine the effectiveness of the impeachment. Consider thefollowing example from a personal injury case:

Q. You testified that, as a result of the accident, you are nolonger able to ride your bicycle?

A. Correct.

Q. On discovery, were you asked this question and did yougive this answer — "Do you still ride your bike? Last -week, Irode it to the Botanical Gardens."

A. Yes, I did say that.

While this impeachment may appear successful, it is immediatelyundermined if the following sentence appears in the discoverytranscript:

A. I try to do everything I can to minimize the limitations ofmy injury. Sometimes I try too hard. The bike trip to theBotanical Gardens put me back in the hospital for twodays.18

17 Lubet., supra, at 11418 Lubet, supra, at 116


A lawyer who omits this explanatory sentence in pursuit of animpeachment only undermines his or her own credibility, rather thanthat of the witness.

Similarly, an unsuccessful attempt to show that a witness is biasedmay only serve to reinforce the independence and objectivity of awitness. Consider the example of a senior employee of the claimantcorporation:

Q. You are a substantial investor in the claimant corporation,correct?

A. No, I am not.

If there is no further evidence to impeach that answer, it would havebeen better to leave the fact that the witness is a senior employee-alone.

Where there is evidence to impeach, it is best to track the wordsused in the impeaching evidence and avoid words that are vague orargumentative. Consider the same sequence of questions, where thecross-examiner has evidence that the employee owns a 10% interestin the corporation:

Q. You are a substantial investor in the claimant corporation,correct?

A. No, I am not.

Q. Isn't it true that you own a 10% interest in the corporation?A. That is true, but I don't consider that to be a substantial

investment.

Here, the refusal of the witness to admit that a 10% interest is"substantial" may be a reasonable one and such a refusal does notundermine the witness' credibility. The sequence would be moreeffective if it was limited to establishing that the witness had a 10%interest in the company. The characterization of that interest as"substantial" could then be left for closing argument.


The Need for a Material and Helpful Impeachment

Trial advocacy texts recommend avoiding impeachment of awitness on irrelevant, trivial or petty inconsistencies. If the punch lineof the impeachment fails to justify the build up to it, the result will bea sense of disappointment. The arbitral tribunal will think — "Is thatall you can do?"19

Similarly, impeachment of favorable testimony should be avoided.Some lawyers think that by exposing any inconsistency by anopposing witness, the overall damage to the witness' credibility willjustify the attack on favorable testimony. The more likely outcome isthat the favorable testimony will be undermined but the unfavorabletestimony will remain. Impeachment should not be undertaken for itsown sake.20

There are two features of international arbitration that reinforcethe wisdom of being selective in pursuing impeachment. First, oralhearings in international arbitration are much shorter than in trials ofcomparable complexity. This requires counsel to use their time moreefficiently. Precious time should not be -wasted in pursuingimpeachment on immaterial or unhelpful points.

Second, international arbitrators often attempt to avoid makingunnecessary determinations about the credibility of a witness.Arbitrators from a civil law background may not be comfortable withthe direct, aggressive attacks on credibility that are common inadversarial trials. Even arbitrators from a common law background•will want to avoid, where possible, explicit declarations that a witnesslied or is untrustworthy — especially if that witness is a representativeof a party that appointed an arbitrator.

Start Strong, Finish Strong

Trial advocacy texts offer differing advice as to when to attemptimpeachment. Since impeachment is confrontational, some authorsrecommend saving it until all favorable information that can be

19 Lubet, supra, at 113-11420 Lubet, supra at p.115


obtained in cross-examination is exhausted.21 Other authorsrecommend attacking credibility at the outset before the witness hashad a chance to bolster his or her credibility with the jury.Otherwise., more effort and material is required to reverse the jury'sinitial impression.22

Although both views have their merit, several unique features ofinternational arbitration tend to favor an immediate attack oncredibility. First, it is risky and difficult to obtain favorableinformation through cross-examination in international arbitrationswhere there has been no pre-hearing deposition of the witness.Second, where written witness statements are used, directexamination tends to be very short or non-existent. This means thatthe witness has not yet had time to build up credibility with thetribunal and should not be given the opportunity to do so by savingimpeachment to later stages. Third, time is of the essence ininternational arbitrations with relatively short evidentiary hearings.If too much time has been spent pursuing favorable information,there may not be enough time left to perform the criticalimpeachment.

Just as it is important to make a strong first impression on thetribunal, it is also important to leave a strong final impression. Thecross-examiner should save a good further impeachment for the endof the cross-examination as well, so that the first and last thing thatthe tribunal hears is the inconsistency in the witness' testimony. Ifriskier questions must be asked, these risks should be run in themiddle of the cross-examination, where there is time and material todispel the damage that might be done by the witness.23

21 Lubet, supra, at p. 13822 Pozner and Dodd, supra, at p.27323 Pozner and Dodd, supra, at pp.272, 279


HOW TO IMPEACH

The Classical Method: Recommit Prior Testimony,Validate, Confront

The classical method of impeaching the credibility of a witnessattempts to contrast the current testimony of the witness with a priorinconsistent statement in order to demonstrate the gulf between whatthe witness says now and what the -witness said at the time. It followsthe sequence of:

i. recommitting the witness to the testimony in chief;ii. validating inconsistent evidence; andiii. confronting the witness with the inconsistency. 24

A simple example of the classical sequence is as follows:

Q. You testified in examination-in-chief that the light wasgreen?

A. Yes, the light was green. [The witness is now re-committedto his story and can't change it]

Q. You spoke to a police officer immediately after the accident?A. Yes.

Q. The officer took notes of the conversation?A. Yes.

Q. At the end of the conversation, the officer gave you astatement to sign?

A. Yes.

Q. You read the statement before signing it?A. Yes. [The reliability of the inconsistent statement is now

validated.]

Q. Please look at Exhibit 14. Is that the statement you signed?

24 P. Bergman, supra, at pp.327-328; Lubet, supra, at pp. 120-133


A. Yes.

Q. Doesn't your statement say that the light was red?A. Yes. [The witness has now been confronted with the

inconsistency]

The classical method begins by re-committing the witness to earliertestimony in order to emphasize that the witness lacks credibility.Otherwise, the witness may take the position that his earliertestimony was mistaken or misunderstood and that there is noinconsistency. However, the problem with this method is that thejury (or the arbitral tribunal) hears the testimony for a second timewhen the question is asked. It is even repeated for a third time inthe example above, when the question is answered. This repetitionreinforces a damaging fact and may outweigh the value of theimpeachment.

The Modern Method: State Desired Proposition, Validate,Confront

In order to avoid repetition of bad facts, many texts suggest thatit is more elegant to have the witness deny a desired proposition thanto repeat earlier testimony. In this modern approach, the witness ispinned down by first being invited to agree with a helpful fact. If thewitness does so, there is no inconsistency, but the helpful fact isadmitted. If the witness disagrees, the witness can then be impeachedon the inconsistency.

Thus, under the modern method, the first question in the abovesequence is modified as follows:

Q. The light was red, was it not?A. No, it wasn't.

The prior inconsistent statement can then be validated and the witnessconfronted with the inconsistency in the same manner as above.


The Dramatic Method: Recommit/State, Confront, Validate

In both the classical and the modern approaches toimpeachment, the contradiction between the -witness' currenttestimony and a prior inconsistent statement only appears after theprior statement is validated through a series of questions. Thisvalidation process can sometimes be fairly lengthy, thereby leadingsome to consider a more "dramatic" method that immediately bringsthe contradiction to the attention of the jury.

Under the dramatic method, the classical or modern method ismodified as follows:

i. recommit the witness to the evidence in chief or state thedesired proposition;

ii. confront the witness with the prior statement;iii. validate the statement.

Most trial advocacy texts discourage this more dramatic approach asmost witnesses, after having been alerted to the contradiction in theirevidence, will feel under attack and be highly motivated to disputethe validation of the prior inconsistent statement.25 Returning to theexample above, if the contradiction between the testimony and thestatement is introduced immediately, validation may degenerate intothe following exchange:

Q. You spoke to a police officer immediately after theaccident?

A. I wouldn't say immediately since it took a while for thepolice to show up.

Q. The officer took notes of the conversation?A. No, he was in too much of a hurry.

25 T. Archibald and K. Jull, "An Empirical Approach Towards a NewMethodology of Impeachment" in T. Archibald and K. Jull, eds., Annual Review ofCivil'Litigation 2004 (Toronto: Westlaw) at p. 10


Q. At the end of the conversation, the officer gave you astatement to sign?

A. Yes, but I didn't read it carefully -with all that was going on.If I had more time, I would have corrected it to say thatthe light was green, not red.

Such an exchange is less likely to happen when the validation of theprior statement occurs before confrontation. Most witnesses will notanticipate the inconsistency and will be more willing to agree toseemingly innocuous questions that validate the prior statement.26

An Alternative Method: Validate, Confront, Compare toprior testimony

Recognizing that most witnesses have a strong tendency to resistany suggestion that their story is inconsistent with prior statements,some suggest beginning any impeachment sequence with theinnocuous questions needed to validate the prior statement. Theirsuggested template consists of the following four steps:

i. validate the prior statement;ii. show the prior statement to the witness;iii. compare the prior statement to evidence in chief; andiv. ensure that the goal of diminishing credibility or establishing

truth is achieved.27

Proponents of this approach recommend that, after the priorstatement is validated, confirmed by the witness and shown to beinconsistent with the direct testimony, the cross-examining lawyershould suggest to the witness that his or her direct testimony wasmistaken. If the witness admits a mistake, the witness' powers ofrecollection and observation are diminished. If the witness refuses to

26 Archibald and Jull, supra, at p.727 See for example T. Archibald and K. Jull, "An Empirical Approach Towards aNew Methodology of Impeachment" in T. Archibald and K. Jull, eds... Annual~R.eview of Civil Litigation 2004 (Toronto: Westlaw) at p.


admit a mistake, it appears that his or her story has changed due tobias or dishonesty.

One disadvantage of this method is that it permits a witness to"slide away" from the contradiction by attempting to reconcile thetestimony in chief with the inconsistent document (e.g. "that's notwhat I meant to say"). However, advocates of this alternativeapproach argue that judges and jurors will be able to distinguishbetween sincere mistakes and obvious reversals.

Perhaps a greater disadvantage of this alternative approach,especially in international arbitration, is that it requires validation inevery case — even where the witness might have been willing to admita helpful fact without being shown the document. Where time is at apremium, it may be best to follow the modern approach of puttingthe desired proposition to the witness first and then following thesteps of validation and contradiction only if necessary to impeach thedenial of the desired proposition.

WHAT TO USE FOR IMPEACHMENT

Prior Inconsistent Statements by the Witness

The most effective, but by no means the only, method ofimpeachment is through the use of a prior inconsistent statement bya "witness. In North American litigation, the testimony of the witnessduring a deposition or an examination for discovery is one of themost fruitful sources of reliable prior inconsistent statements.However, such depositions are hardly ever permitted in internationalarbitration. The cross-examiner must therefore look elsewhere to finda prior inconsistent statement.

In a commercial context, a witness will often have prepared someform of record of the contents of a disputed event during theordinary course of business dealings. For example, a meeting betweenbusiness executives for the purposes of discussing a contract may bedescribed in an executive's handwritten notes, in a report to theboard of directors or in an e-mail instructing an employee to carryout certain tasks. Although such documents are not sworn testimony,


they can be validated to establish that they were made shortly afterthe disputed event and that the witness took care to describe theevent accurately. Once such validation occurs, the witness can beconfronted with the inconsistency.

In most international arbitrations, the documents used at theevidentiary hearing must have been submitted at an earlier date, alongwith memorials or other written submissions.28 As a result, inconsidering the filings to be made with memorials, counsel shouldalready be planning for cross-examinations. A document that mightotherwise not be included should be filed if it contains usefulimpeachment material.

For any given witness, prior inconsistent statements may be foundin only a small number of the thousands of documents that are filedin the typical international commercial arbitration. In order to avoidlosing time during the hearing searching through the filings, it isusually helpful to create a "witness examination binder" to bedistributed to the witness, the arbitral tribunal and opposing parties atthe outset of the cross-examination. The documents in this -witnessbinder should be cross-referenced to the original exhibit numbersfrom the pre-hearing filings so as to avoid any confusion orsuggestion that new documents are being introduced. Using thisCJ<_7 O ^3

witness examination binder during cross-examinations will avoid theneed to search through a voluminous record to find exhibits that areused for impeachment.

Other Inconsistent Statements

In addition to impeaching a witness with his or her own priorinconsistent statements, counsel should consider other reliableevidence that is inconsistent with the witness' testimony. Thisevidence should be such that it can be validated by the witness priorto confrontation. For example, consider a report prepared by a

28 Article 3(1) of the IBA Rules provides that "Within the time ordered by theArbitral Tribunal, each Party shall submit to the Arbitral Tribunal and the otherParties all documents available to it on which it relies, ...".

Confrontation—Techniques fot Impeachment 49

colleague of the witness who continues to work for one of thecorporate parties to the arbitration. This report can be validated asfollows:

Q. You've worked with Ms. Smith for a number of years?A. Yes.

Q. In your experience, Ms. Smith is a diligent employee?A. Yes. [The witness is unlikely to speak negatively of a

colleague].

Q. In your experience, Ms. Smith is an honest employee?A. Yes.

Q. Please turn to the memo from Ms. Smith at Exhibit 12.Do you agree with Ms. Smith's statement that "..."?

Even if the witness refuses to agree, the memo containing aninconsistent statement will have been validated by the witness' earlieradmissions.

In international commercial arbitrations, public filings withsecurities regulators are often a valuable source of evidence to beused to impeach senior officers and directors. Even if these filingswere not prepared by the witness, a senior executive will be expectedto be familiar with them and will often be under a statutory duty tocorrect any material inaccuracies. Public filings are usually written tore-assure investors about the company's performance (to the extentpermissible under the law). These assurances may then be used tocontradict certain claims for damages that are inconsistent with themessage being delivered to investors.

The use of other inconsistent statements can be especially helpfulwith expert witnesses or people -with particular technical expertise.Pointing to noted, respected authors who take a different view thanthe expert can often be helpful. Even more helpful is to review forinconsistencies any authorities cited by an expert in his or her report.The expert has, more often than not, failed to review the articlesreferred to in his or her report. Those articles are often cited by a


junior in the expert's office for one proposition but will often containmaterial qualifying that proposition, contradicting it or containhelpful information for your case with respect to other propositions.

Impeachment by Omissions

In some cases, a witness statement or direct testimony includesmaterial facts that are not described in a document reporting orsummarizing an event. This creates the opportunity for impeachmentby omission rather than by inconsistency. In order to succeed withsuch an impeachment, the cross-examiner must show that theadditional facts in the witness statement were of a type that shouldhave been included in a document.29

Consider the example of an arbitration arising out of the earlytermination of a distribution agreement. The respondent alleges thatthe termination was for cause, but the minutes of a board meetingapproving the termination of the agreement do not refer to thealleged cause. A director can then be cross-examined on the omissionin the board minutes as follows:

Q. You approved the minutes of this board meeting?A. Yes.

Q. You reviewed the minutes before approving them?A. Yes.

Q. You wanted the minutes to be accurate?A. Yes.

Q. You wanted the minutes to be complete?A. Well, the minutes are not intended to be a verbatim

transcript of the discussions.

Q. But if a matter was important, that should be reflected inthe minutes?

A. Yes.

29 Bergman, supra, at p.332


Q. And you agree that the grounds for terminating thedistribution agreement are an important matter?

A. Yes.

Q. And you understood that at the time of the meeting?A. I'm sure that I did.

This cross-examination sequence uses the business duty of a directorof a corporation to include important matters in minutes of ameeting to establish that the omission of any just cause fortermination in those minutes contradicts respondent's defense.

Omissions are obviously not limited to the contents of a minuteof a meeting but extend to anything that it would be reasonable for abusiness to have done or communicated to anyone given its allegedunders tanding.

Impeachment by Motives/Bias/Bad Character

A "witness that has a strong financial interest in the outcome of acase or a close affinity to one of the parties may be impeached ongrounds of motive or bias rather than on any inconsistency. This typeof impeachment is often very difficulty since it is hard to avoid"telegraphing" your strategy and most witnesses will strongly resistany challenge to their objectivity on grounds of bias or impropermotive.30

Impeachment on grounds of bad character or prior bad acts is aparticularly delicate matter in international arbitration. The commonlaw allows such forms of impeachment if they are relevant tocredibility and are not unduly prejudicial. Even then, the collateralfact rule serves to limit fishing expeditions into a witness' characterby prohibiting the introduction of evidence that serves only to prove"collateral" issues about the witness' credibility. If a witness deniesthe accusation against his or her character, the cross-examiner isstuck with the answer.31

30 Lubet, supra, at p. 15931 Lubet, supra, at p. 152


While the collateral fact rule does not apply to internationalarbitrations, most international tribunals are quick to limit evidencethat appears "immaterial" even if it is relevant to credibility.32

Attacks on the character of a witness may appear offensive toarbitrators whose cultural background may predispose them to bemore respectful and deferential to witnesses than trial lawyers used tothe cut and thrust of North American litigation.

Impeachment by Limited Testimonial Capability

It is widely accepted that witnesses in international arbitration mayobtain the assistance of counsel in preparing their statements.Impeaching a witness on the basis that they have obtained suchassistance is rarely persuasive. However, assistance from counsel canlead a witness to make statement that overreaches and ignores thelimits to the witness' personal knowledge, expertise or recollection.These topics are fertile grounds for possible impeachment.

Effective impeachment of testimonial capacity can also focus onthe fact that another witness may have been in a better position tounderstand or that a certain point may have been more important toanother witness and that the other witness' memory is thereforebetter. In the example in the first section above about whether partiesreached a verbal understanding, useful points to establish may includethe following:

— this contract was one small part of a senior officer's overallduties; someone for whom it was the major focus is likely tohave a better recollection of events;

— this was one small part of a large multi-national's business buta large part of your client's business; or

— a particular witness was not directly involved but got hisunderstanding through reports from others while yourwitness had direct involvement.

32 IBA Rules, Articles 8(1), 9(1)


One effective way of establishing any of these propositions is to havethe witness agree to the general proposition and follow up with anumber of detailed factual questions that support that proposition.

One of the hallmarks of international arbitration is proceduralflexibility. Arbitration rules usually leave the arbitral tribunal withgreat discretion to adapt the procedures to the unique circumstancesof the case. Counsel should adopt the same flexible approach to thetechniques for impeachment of witnesses described above. There isno one method that fits every witness in every case. Good judgment,built up over years of experience, must be applied to tailor the cross-examination to the particular testimony of the witness, the availableimpeachment evidence and the cultural background of the arbitraltribunal. The techniques and views described above will hopefully bea useful starting point in preparing for cross-examination, but not thefinal word.

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