Preparing Witness Statements in International Arbitration
In his International Arbitration column, John Fellas discusses how to avoid submitting a witness statement that is a time-bomb—a statement that apparently strongly supports your client's case at the time it is submitted, but that, months later at the hearings, blows up in the witness's face the minute she is cross-examined about it.
October 18, 2017 at 02:00 PM
24 minute read
Witness statements are the standard method by which the direct testimony of witnesses is submitted in evidence in international arbitration proceedings. Typically, they are submitted in writing some months before any hearings and, in most cases, little time is spent at hearings on the examination-in-chief of a witness—typically a 10 to 15 minute “warm up.” The bulk of hearing time is spent on cross-examination. In a previous article in this column, I offered some practice pointers for conducting cross-examination in international arbitration proceedings. (“Cross-Examination in International Arbitration,” NYLJ, Aug. 7, 2015). Here, I do the same for the preparation of witness statements.
My focus is not on the formal content of a witness statement. For that I refer the reader to Article 4.5 of the IBA Rules on the Taking of Evidence in International Arbitration. Rather, I want to focus on how to avoid submitting a witness statement that is a time-bomb—a statement that apparently strongly supports your client's case at the time it is submitted, but that, months later at the hearings, blows up in the witness's face the minute she is cross-examined about it.
A lawyer's role is to present the most persuasive case she can, given the cards she has been dealt, given the inescapable mix of favorable and unfavorable facts that underlies most disputes. When it comes to witness statements, central to that role is submitting the witness's honest account of the relevant events in a manner that provides the strongest possible support for the case, but at the same time minimizes the witness's vulnerability to attack on cross-examination. After all, once a witness statement is submitted, the opposing party's lawyers will spend weeks poring over it in search for grist for the cross-examination mill: misleading statements; key omissions; inconsistencies with contemporaneous documents, etc.
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