Ms. Catherine Bratic
Ms. Eldy Quintanilla Roche, King & Spalding LLP
Mr. Alberto Ravell, ConocoPhillips
Mr. Mark Stadnyk, Norton Rose Fulbright LLP
By Robert Reyes Landicho1
On Tuesday, 16 June 2015, Young ICCA organized a panel of distinguished practitioners and speakers at King & Spalding office in Houston, Texas to discuss the critical skills needed to conduct cross-examination of both fact and expert witnesses in international arbitration. Approximately twenty-five young arbitration professionals were present to learn about the theory and practicalities of cross-examination – and braved Tropical Storm Bill (which was making its way through Texas) to do it.
The distinguished panel moderated by Young ICCA Co-Chair Ms. Sylvia Tonova (Jones Day) consisted of Mr. Doak Bishop (King & Spalding LLP), Ms. Lucy Greenwood (Norton Rose Fulbright LLP), Mr. Dustin Appel (Baker Botts LLP), and Mr. Miguel Nakhle (Compass Lexecon).
After a brief introduction by Ms. Sylvia Tonova, Mr. Doak Bishop began with a presentation of the goals and methodology of the cross-examination of fact witnesses in international arbitration. Mr. Bishop first spoke about the rules that govern cross-examination in a typical international arbitration, including any rules set forth in the tribunal’s Procedural Order No. 1 and a particular institution’s rules –which generally provide that the tribunal has a duty to treat the parties to arbitration “fairly and equally.” He then focused on the principle of “Do No Harm” in cross-examination, emphasizing that the purposes of your cross-examination must be clear and specific. Mr. Bishop described five main purposes of cross examination: (1) arguing the case through your questions; (2) “hijacking” the witness; (3) limiting the impact of a witness’s testimony; (4) discredit the substance of the witness’s testimony; (5) call into question the credibility of the witness himself/herself. Mr. Bishop then explained the importance of maintain your own credibility during cross-examination, and gave tips regarding how to structure cross-examination most effectively. Mr. Bishop closed his presentation with “10 General Guidelines” on witness examination, of which the participants were most appreciative.
This presentation was followed by the thoughtful advice of Ms. Lucy Greenwood and Mr. Dustin Appel. Ms. Greenwood provided an overview of the different approaches to witness preparation in three different jurisdictions —the United States, the United Kingdom, and France. Ms. Greenwood emphasized that each jurisdiction has its own ethics rules, which may govern the degree to which counsel may prepare a witness for examination. Throughout the discussion, the group spoke at length regarding the potential tension that the different ethical rules may cause in international arbitration, where the nationality of the parties and of counsel are different. Mr. Appel then gave the participants suggestions on how to prepare a witness that is about to be examined, a role very typically given to younger members of the team. Mr. Appel stated that it is important to go several times thorough your preparation, including reviewing line-by-line with the witness regarding their statement and any exhibits, and explaining them how the questioning will take place.
After a short coffee break, Ms. Sylvia Tonova and Mr. Miguel Nakhle presented a mock expert examination, where the expert had to testify on damages valuation of a cement production company. Mr. Nakhle played the role of the expert and Ms. Tonova performed the role of the counsel administering the cross-examination. The script of the panel was intentionally made to have certain mistakes, and the participants were keen to observe the portions of the cross-examination that were effective, and the portions in which more preparation could have been done before the hearing to prevent inaccuracies. Mr. Nakhle emphasized that expert witnesses can make some of the most difficult witnesses on cross-examination, because they are typically very well prepared, have testified in the past, and may be providing testimony on highly technical matters. In this respect, Mr. Nakhle and Ms. Tonova both stressed the importance of preparation of the counsel conducting the cross examination, including extensive reference to documents in the cross-examination binder.
To celebrate the end of a successful training session, a cocktail reception kindly sponsored by King & Spalding was held for all the participants and speakers.
1 Robert Reyes Landicho graduated from the University of California – Berkeley, Boalt Hall School of Law. He was admitted as an attorney and counselor at law in the State of Texas in 2013. Robert is an associate at Vinson & Elkins LLP, where he practices international dispute resolution and arbitration as well as general commercial litigation.