Your First Hostile Cross-Examination - Dos and Don'ts


Report prepared by Stefan Dobrijević, Ph.D. candidate and Vis Moot Team Coach, University of Graz, Austria

On 31 July 2020, Young ICCA organized another engaging webinar (via the Zoom platform) titled “Your First Hostile Cross-Examination – Dos and Don’ts”. As cross-examination is an arbitration evergreen, the great interest of the audience was no surprise - more than 200 participants attended the event, which included both practitioners and students. 

At the outset of the webinar, Theominique Nottage, one of the three Young ICCA Co-Chairs made some opening remarks and outlined the format of the webinar. The webinar was co-moderated by Ana Coimbra Trigo (PLMJ Advogados, Young ICCA’s Events Coordinator). The speakers were Prof. Juan Fernández-Armesto (Armesto & Asociados, Madrid), Mr. Thomas Kendra (Hogan Lovells LLP, Paris) and Ms. Silvia Marroquín (Chaffetz Lindsey LLP, New York). The first part of this informative webinar was reserved for a panel discussion and the second part featured a cross-examination demonstration.

Cross-Examination: Between Bullfighting and Theatre

Prof. Fernández-Armesto opened the panel by drawing a parallel between hostile cross-examination and bullfighting. In bullfighting, the matador’s goal is to overcome the bull, while using various techniques. Likewise, the cross-examiner, who expects to succeed in demonstrating certain points to the tribunal, must set a clear goal of what he or she intends to achieve with a specific line of questioning. Identifying the issues that the cross-examiner wants a witness to confirm or deny should be a good starting point. 

Once the goals of the cross-examination are achieved, the cross-examiner should retreat immediately. Otherwise, a witness might modify or nuance his or her statements. Prof. Fernández-Armesto not only gave the participants an unforgettable analogy, but he also relied on another vivid example from the animal kingdom – the lionesses hunt. The pride retreats immediately after the goal of overcoming a gnu is achieved, securing the prey at once and before complications can arise. In other words, as soon as the desired answer is on the transcript – counsel should retreat. 

The cross-examination of experts is even more challenging as their descriptive testimony will usually sound persuasive to a tribunal, especially at earlier stages of the proceedings. Therefore, to continue the bullfighting metaphor, the expert witnesses play the role of “Miura bulls”, which have a reputation of being large, fierce, and cunning. 

Mr. Kendra focused closely on the balance between closed and open questions. Closed questions are the standard because they enable greater control over cross-examination. However, it might be useful to shift between open and closed questions, especially if the risk of potential harm is non-existent or low. This allows the cross-examination to appear more genuine and to catch the tribunal’s attention. From a psychological perspective, establishing trust with the witness might result in testimony that is more earnest. 

However, Mr. Kendra advised not to warm up a witness who is extremely hostile and aggressive. When cross-examining such a witness, the cross-examiner may consider asking the “question” upfront. This opens the possibility of catching the witness off guard, which can potentially lead to an answer in the cross-examiner’s favour. 

Both panellists agreed that a good cross-examiner should focus on the points that are important for their case. This is first achieved by narrowing the scope of examination to the highly relevant issues. Within the cross-examination itself, the significance of a question or topic could also be indicated by raising the tension and/or the tone. For example, a cross-examiner could emphasize significantly what the witness stated and confront him or her with a specific piece of evidence. Sometimes, the witnesses’ single purpose might be to draw the tribunal’s attention to a case-decisive document.

The panellists also agreed that body language and other psychological factors play a significant role. Mr. Kendra suggested that counsel should always stay calm and professional, even if the testimony is seriously damaging the cross-examiner’s case. The need to be a good actor, in addition to an excellent lawyer, led the panellists to conclude that cross-examination can be described as an exercise that lies somewhere between bullfighting and theatre. 

Cross-Examination Demonstration

In the second part of the webinar, Prof. Fernández-Armesto acted as Chairman of the tribunal, Mr. Kendra as cross-examiner on behalf of Respondent and Ms. Marroquín as witness for the Claimant. The faculty depicted how a cross-examination would occur in a real international arbitration hearing, using a Young ICCA Mock Case that was shared with the participants in advance of the webinar. After this demonstration, the members discussed their “performance”. In this setting, Mr. Kendra indicated the goals he had set for the mock cross-examination and Ms. Marroquín described her experience as a witness. Following this, the panellists took questions from the audience. Amongst the many answers, they concluded that extremely aggressive and uncooperative witnesses usually harm their own credibility. Similarly, counsel might sometimes also act too aggressively while trying to achieve a specific goal during cross-examination. The faculty also discussed how to deal with tribunal intervention and Ms. Marroquín introduced the topic of the role of junior lawyers in cross-examinations, and how meticulous knowledge of the case is key to a successful examination.

Lastly, Prof. Fernández-Armesto concluded that arbitration should remain as civilized as possible, even in cases where counsel must act more resolutely. Despite cross-examination being assimilated to a bullfight for strategic purposes, arbitration practitioners should work to ensure that the arbitration experience is as pleasant as possible for all participants, in order for it to continue to be the chosen mechanism to resolve disputes by economic actors.