Top tips for effective cross-examination in international arbitration

Explore the art of cross-examination in international arbitration with J.P. Duffy (www.reedsmith....) and Raj Pillai KC (www.linkedin.c...) (3VB). In this episode, the duo discusses strategic insights, preparation techniques, tribunal expectations, and question dynamics that lead to effective cross-examination.
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Transcript:
Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our International Arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, global head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started.
J.P.: Welcome back to the next episode of Arbitral Insights which will discuss effective cross examination and international arbitration with Raj Pillai KC, who's a barrister at 3VB in London. I'm J.P. Duffy. I'm an international arbitration partner based in New York that acts as both council and arbitrator and international arbitration seated around the world under a variety of governing laws and arbitral rules. I participate in several hearings a year as both council and arbitrator in which witnesses are cross-examined and can offer a more American point of view on this subject. As I mentioned with me today is Raj Pillai, who's a King's Council based in London. He acts in international arbitrations and also appears in English courts and various others including the BVI, Abu Dhabi and Singapore. His role is generally as lead advocate. So he will determine strategy with the client and the legal team and then run the arguments and carry out the cross-examinations. Raj is gonna offer some insights based on both common law litigation and his arbitration experience. So welcome Raj and thank you for joining us today.
Raj: Thanks J.P. Nice to be here.
J.P.: So let me begin by talking about the importance of cross examination in international arbitration so that we can set the stage of it for our discussion. As many of the listeners will know in international arbitration, direct witness testimony is usually offered by witness statement and that's written witness statement. And what that means is that the witness will tell their story through a written document that has been prepared with the help of lawyers. There's a trend in occasion for some of these witness statements to be written entirely by the legal team and then signed off by the witness that can be a mistake because oftentimes it doesn't present the witness in a manner that allows the witness to seem very authentic or seem like they're offering their true factual story. Typically, the way that we like to do things is we like to interview the witness, hear their story, prepare them in at least from the US perspective in a way that we might prepare a witness for direct examination and then put their witness statement down on paper and then have them sign off on that. That's usually the way it's done in the US I should mention, I'm qualified in England and Wales as well. So we can have issues occasionally with how we prepare witnesses and the differences between the two systems. But I think that's usually the way most people would do it from a general perspective. Now, what that also means is that cross therefore becomes the first opportunity for the tribunal to really hear from the witness themselves and to assess the witness. So it's one thing and I've noticed this sitting in as arbitrator, it's one thing to read a witness statement and to get a sense of what you might think the witness is, it's a very different experience. When you then see that witness hear from them live, see their mannerisms, hear their words coming directly from their mouth, with their own timber, their own tenor and their own delivery. So cross really takes on a disproportionate value and importance in international arbitration because you've not heard from them before. Now, there's in my experience at least, and Raj may have different ones, There are rarely any surprises on cross. Although Raj and I did have an experience many years ago in Singapore where a witness um that I was crossing started to offer a lot of testimony that that no one had ever heard before. But for the most part there's rarely those sort of TV moments where someone admits to everything that they've been accused of or admits to something that's been a key issue in a case. But it's still allows you to discredit witnesses and to highlight the other party's weaknesses and the strengths in your case. So it is a critical, critical phase and a critical skill. And it's one that many lawyers, particularly in jurisdictions like the US may not have as much experience with. ...