Cross Examination Masterclass

Cross examination is one of the most difficult skills for young practitioners to develop. This workshop provides an opportunity to conduct mock cross examinations with 20 experts from Kroll and AlixPartners before a live tribunal and receive feedback.

Participants will be arranged into teams of two to analyze mock damages expert reports and prepare cross examination outlines. On the day of the workshop, the event will begin with a one-hour panel from leading practitioners providing guidance on how to conduct an effective cross examination. Counsel teams will then have an opportunity to cross examine the opposing side’s experts and make submissions before a live tribunal. Participants with 7+ years of practice are encouraged to serve as arbitrators.

Program schedule:

2:00 - 3:00 PM -  “How to conduct an effective cross examination” (speakers: Greg Litt (Skadden), Lisa Snow (Snowbridge Global Advisory)

3:00 - 3:15 - Break

3:15 - 4:45 - Cross examinations & closing arguments (~45 min per side)

4:45 - 5:00 - Feedback from tribunals

Event Report

Written by Vitor Vieira, Associate at ALSTON & BIRD.

Seven months of meticulous planning came to fruition at the highly anticipated Young ICCA Cross-Examination Workshop. Spearheaded by Eva Chan, Young ICCA Co-chair and supported by dedicated regional representatives, the event unfolded in collaboration with Alix Partners and Kroll expert services. Alix Partners and Kroll prepared draft expert reports and volunteered 20 experts, creating a rich, hands-on training environment for participants.

Preparation and Pairing

In advance of the workshop, participants were provided with a detailed case summary and expert reports: Claimant’s report crafted by Kroll and Respondent’s by Alix Partners. Each participant was randomly assigned to represent either the Claimant or the Respondent. A week prior, they were notified of their expert pairings and encouraged to strategize with their assigned expert to refine their cross-examination outline.

Setting the Stage: The Lecture

Before delving into practical exercises, participants attended a lecture featuring Eva Chan, Young ICCA Co-Chair, as moderator and distinguished speakers Gregg Litt (Skadden, Arps, Slate, Meagher & Flom LLP), Liang Ying Tan (Seladore Legal), Hinda Rabkin (Freshfields Bruckhaus Deringer LLP), and Linda Snow (Snowbridge Global Advisors LLC). The panel provided invaluable insights into the art and science of cross-examination in international arbitration.

Among the key takeaways:

• Strategic Decision-Making: The decision whether to cross-examine will vary according to the tribunal’s stance on the consequences of not conducting a cross-examination. If the tribunal views the absence of cross-examination as tacit acceptance of evidence, a cross is often essential. Conversely, if the tribunal objectively evaluates evidence irrespective of cross-examination, counsel must weigh the potential benefits of the cross against the other tools they may use to deal with the adversary’s evidence.

• Counsel-Expert Collaboration: Effective preparation hinges on collaboration. Experts have a narrower contact with one specific aspect of the matter and benefit from a broader case overview provided by counsel, while counsel benefits from the expert’s insights in relation to his cross outline and how the opposing expert may react. This partnership ensures a cohesive strategy and an informed cross-examination.

• Cross-Examination Styles and Roadmap: Hinda Rabkin explored the two main cross-examination styles (aggressive and cooperative), highlighting the importance of tailoring them to the witness and the tribunal. While an aggressive style may highlight inconsistencies, the cooperative tone may induce the witness to make helpful statements. Hinda Rabkin further advised participants to approach cross-examination with a clear roadmap and defined objectives for each topic.

• Expert-Specific Nuances: Lisa Snow recommended adopting a cooperative style when examining experts because this is more likely to create an environment where the expert will feel comfortable making concessions. She also explained that charismatic experts, while less likely to make concessions, would often stray beyond their expertise or make statements without support on the record. The participants also need to be prepared to use that against them.

• Irving Younger’s Ten Commandments and Adaptation: Gregg Litt revisited Irving Younger’s ten commandments for cross-examination, exploring to what extent they do or do not apply to international arbitration. He explained that the core principles of using focus, leading questions, simple questions, and only questions you know the answer to are crucial to maintaining management and control over the cross-examination process in international arbitration. The main difference from cross-examination in civil courts is that arbitration allows for greater depth and complexity, given the target audience is the arbitral tribunal instead of the jury.

• Maintaining Composure and Stopping: Liang Ying Tan stressed the value of staying composed and precise during cross-examination. She advised against arguing with the witness, instead recommending deliberate pauses and measured responses to maintain control. Liang Ying Tan also highlighted the importance of observing both the tribunal and the witness closely, suggesting techniques like offering breaks if tensions rise or letting a witness’s missteps play out naturally. Knowing when to stop the cross is key.

   

Hands-On Experience

With the lecture’s guidance fresh in their minds, participants engaged in mock cross-examinations. Working with their assigned experts, they applied the lessons learned, honing their ability to control the narrative, extract concessions, and demonstrate credibility. The participants practiced their skills in the closest setting possible to reality, with top-tier experts from Alix Partners and Kroll, and experienced practitioners sitting in as arbitrators.

Reflections and Impact

The Young ICCA Cross-Examination Workshop exemplifies the organization’s commitment to fostering practical skills in arbitration’s next generation. Through rigorous preparation, expert guidance, and immersive exercises, participants left the workshop with a deeper understanding of cross-examination’s strategic intricacies and a renewed confidence in their advocacy skills. For many, the event was not just a workshop but a pivotal moment in their professional development.