Commercial Arbitration Potholes: Cross-examination

Arbitration has replaced litigation for many disputes. That isn’t likely to change as litigation costs go up and arbitrators continually work to make arbitrations more efficient and effective.  So, if you are involved in commercial litigation, there is a good chance you will be more and more involved in arbitration of disputes.

Arbitration looks quite a bit like a trial. There is a hearing.  Often, there is a court reporter.  There are openings, there are examinations, and cross-examinations and everything we associate with a trial.  There is even an arbitrator or panel of arbitrators sitting in front and acting a lot like a judge.  Trial lawyers will have a tendency to handle it exactly like a trial because it seems so much like a trial. But there are differences that you will want to make sure you take into account.

What we sometimes think cross is

Many trial lawyers consider cross-examination to be one of their most important skills.  It is here that the trial lawyer believes he or she will be able to confront the opposing party or that parties’ witnesses to show they are not the disinterested truth-tellers they are trying to portray.  Instead, the cross examiner hopes to show the witnesses are biased and mistaken at best and dishonest at worst.   Newer trial lawyers may have in mind what they have seen on TV and in movies where a scintillating cross-examination wins the day in one fell swoop. Think Perry Mason.  The guilty always are prodded into admitting they did it, and the case against the falsely accused defendant is dismissed by the end of the show.

Of course, that never happens in real life.  It doesn’t happen in court.  And it sure doesn’t happen in arbitration, although I have seen some pretty darn good cross-examinations at arbitration hearings.

Realistic cross

Just as in court, you will miss the boat if the only goal of your cross-examination is to “destroy” the other witness.  Unless you have the right facts and evidence to do it —and are one of the world’s great cross-examiners — you are likely to fall a little short of destroying the witness.  You may just present yourself as overbearing, angry, and short on facts.

But there is still plenty to be done on cross.

Much of what I have to say here is likely to be true in court, too, but let’s concentrate on the arbitration hearing.

Small rooms don’t need big voices

One big difference is that the arbitration hearing room is likely to be smaller than a courtroom.  Overbearing cross examination can be off-putting in a courtroom.  It can be really off-putting in a small hearing room.  Volume and drama that may work in a courtroom are usually just out of place in an arbitration and can undermine rather than emphasize a point.  A common reaction is often, if this point is really so good, why is this lawyer shouting?  Really great points tend to speak up for themselves.  Shouting is often used to try to improve a point that isn’t very good.

Disinterested observers — including arbitrators — often have more empathy for the witness than the cross examining lawyer.  It’s not really a fair fight in many cases. The witness is probably new to the whole testifying business, while the lawyer has been studying it and involved with it for  years.  Rough treatment of a witness who doesn’t really have it coming is never helpful.  And there are few witnesses that really have it coming.  Most people do the best they can and even so make some mistakes. They aren’t criminals that need to be destroyed.

Here is another difference.  In a jury trial, a big part of a trial lawyer’s job is often to achieve empathy for his or her client and distain for the opposing party.  While you certainly do not want to overlook the justice of your situation, in the typical commercial arbitration, decisions are more likely to be driven by the facts proven and law than emotion.

So, in light of all that, what should you do on cross examination?

Putting facts you need in the bank

Start by thinking what facts you need to prove to make your case.  Now determine which of those things witnesses for the opposing side are likely to know about and will admit.  Thus, if you need to prove, for example, that the parties agreed to a specific shipment schedule, see if you can get someone from the other side of the case to admit that.  Or if you want to prove that the specification called for a certain design or that the parties later agreed on a modification, see if someone from the other side is likely to admit that.

Why have the other side admit what your witnesses could testify to?  Because if they do admit a fact, you have pretty well proved it.  What are “contentions” from your side become “admissions” when they come from the opposing side.  You can usually put the other side’s admissions in the bank as you add up the facts you have proven to win your case.

But what if they won’t admit what you believe they should admit?  You must be prepared to do one of two things.  Either you will present a document or earlier testimony from the witness — or at least someone from his or her side of the case — that establishes the fact that you are trying to prove.  Or you will want to be fairly sure that, based on all the other facts in the case, the fact that you are trying to prove is likely to be true, and be prepared to prove it later.  You won’t get the admission on cross that way, but you will have at least laid the groundwork for later proof.  And if you are able to do that, you will bring the credibility of the other side’s story into question.

If  you  can’t do either of those things, it is often is best not to go into those topics on cross.  You don’t want to prove the other side’s case or give them a chance to re-emphasize their case.

This all often works quite well with experts.  Chances are, the experts agree on much of the background and many of the technical points.  Their opinions often diverge on only a few key points.  You can work the key points of disagreement later, but you can likely start by establishing many of the background facts you need through the other side’s expert.  Again, money in the bank, so to speak.

So the first thing to do on cross is to gather up all the admissions from the other side you can get.  If you do it right, you will basically have a polite conversation where you are just verifying that the facts the other side should admit are in your factual bank account.

Time for a withdrawal

But sometimes a witness has testified to facts that are very harmful to your case.  And you have good reason to think those facts are not true, or at least have been presented out of context so they appear more harmful than they really are.  It’s time to make a withdrawal from your opponent’s factual bank account if you can.  You’ll need to unleash Perry Mason — sort of.

Perry Mason got admissions out of the real perpetrators because there was some piece of evidence they couldn’t explain that conclusively showed they did the crime (which was usually a murder).  Or he just yelled at them with his version of the facts he had figured out.  They usually felt guilty anyway and, once found out, wanted to get it off their chest.

Forget all that.  What you will need is, again, a document or testimony that disproves the testimony that hurts your case.  So if a witness says the parties agreed to a specific shipping schedule, be prepared with the email that shows a different one or that shows your client rejected the proposed new schedule.  Or have the deposition testimony where the witness said the opposite.  If the witness said your client agreed to pay additional fees for services, find the email where your client insisted the service was already included in the agreement.  Or whatever it is you need to show the facts really aren’t as the opponent’s witness testified.

Usually, witnesses are not actually lying, but just remember things in a way favorable to them or their company. Often, all you need to do is present them with something concrete to get them to admit they have it wrong.

If you don’t have it in writing, you may be able to show their unfavorable testimony just doesn’t make logical sense based on other known facts in the case.  But be careful.  You may really just be driving the bad fact home.  Most witnesses don’t think they were wrong.  They have a whole mental picture of how they think things happened or must have happened.  They are unlikely to abandon that unless you have something concrete to show them they must.

If you don’t have something concrete to show them, you may be able to prove that they weren’t in a position to know first-hand what actually happened or otherwise don’t have a sufficient basis to know what they are talking about.  Again, be careful.  You don’t just want to have a repeat of the unfavorable testimony or facts.  You may have to simply rely on other witnesses — preferably disinterested ones — to show the facts are different than the witness you are cross-examining said they are.

It may be that the best you can do is show a witness has an interest in testifying in his or her favor and against your client, so their word is suspect.  If so, leave it at that.  Don’t fight battles you can’t win.  And if that is all you have, there is usually no reason to make the witness a villain.  He or she probably isn’t.  Arbitrators generally understand that interest can affect testimony.

Remember, arbitrators are finding facts. They aren’t picking heroes and villains.

Deposit first, then try to withdraw

One more thing.  Generally, if you have a reasonably cooperative witness, it is better to put the facts you want “in the bank” before you try to discredit the witness in some way.  Once witnesses feel they are under attack, they tend to stop making admissions, even those they really should.  Think of it as putting the money in your account before you try to make withdrawals from theirs.

Of course, whole books are written about cross-examination. Nobody seems to agree on everything about it.  So there is plenty more you can do in the right case than noted here. Still, for most cross examinations the thoughts above will stand you in good stead as a starting place in most arbitrations.

And, if you are a world class cross-examiner, have at it any way you think best.  But please keep the volume down and be as polite as you can when you are in a small hearing room.