Young ICCA Skills Training Workshop: Cross-examination in International Arbitration
Post Event Report
By Melina Bellaguarda Kotzias, International Arbitration Master’s Candidate at the University Paris II Panthéon-Assas, Brazilian lawyer
On 22 September 2017, Paris, the “cradle of arbitration,” hosted a Young ICCA Cross-Examination Training Workshop. McDermott Will & Emery Paris opened its headquarters’ doors to a daylong event that gathered a multicultural group of spectators, speakers and organizers, of around fifty people. It was an occasion for participants to listen to highly qualified practitioners during the morning and to practice their cross-examination skills in international arbitration in a very dynamic and enriching atmosphere in the afternoon.
Following a welcoming speech by Young ICCA Co-chair and LALIVE Associate Ms. Nhu-Hoang Tran Thang, Mr. Thomas Granier, Associate at McDermott Will & Emery, moderated a round-table on the subject of “Basics of Cross-Examination.” The panel was composed of Ms. Nadia Darwazeh, partner at Curtis, Mallet-Prevost, Colt & Mosle LLP; Mr. Timothy Foden, Of Counsel at Quinn Emmanuel Urquhart & Sullivan LLP; Ms. Kirsten Odynski, partner at White & Case LLP, and Mr. Jacob Grierson, partner at McDermott Will & Emery.
Nadia Darwazeh emphasized that when it comes to cross-examination, only practice makes perfect. The very first question should be to ask oneself if cross-examination is, in a given arbitration, the best way to support one's client’s case. This decision, according to Ms. Darwazeh, should also take into consideration the perceived personality of the witness, the subject-matter of the arbitration and the composition of the arbitral tribunal. If the decision to cross-examine is taken, a detailed review of the witness statements and of the relevant factual evidence on record combined with an exhaustive anticipation of questions and answers is the best way to prepare for the cross-examination. While being familiar with the witness statement is a must, it is not sufficient on its own. A cross-examiner must be capable of adapting to the witness’ answers and deal with unexpected discoveries during the cross-examination. To be ready to bounce back to the witness’ answers, a good cross-examiner should always keep in mind the admissions he or she wants to have the witness make on record. Setting objectives of the cross-examination is key. Open questions are to be avoided, as they bear the risk of the witness expanding on their answer with explanations (the unwanted “yes, but…” answer) or formulating unclear, “grey” answers that will not make the point the cross-examiner would like. Open questions further carry the risk of having the witness waste the cross-examiner’s time.
Jacob Grierson added that being familiar with the tribunal’s cultural/educational background is highly relevant. Cross-examination can be different or differently perceived by arbitrators from different legal cultures; it is therefore important to prepare accordingly. Regarding the elaboration of questions, he highlighted that being sure of the relevance of each question is crucial. To improve this relevance, the cross-examination preparatory work can be divided into two stages: first, separate the questions in sections according to what objective the questions have; second, to phrase the purpose of each question and find ways to suggest answers. This work on the formulation of questions is key to obtain the answer you want. Finally, cross-examination is a delicate art that requires mastering different skills, studying the tribunal’s background, the witnesses and their statements, and the goals to be reached at the hearing.
Kirsten Odynski emphasized that choosing to not cross-examine a given witness can be as powerful as a good cross-examination. Some cases can be better pleaded relying on only written documents. Cost-efficiency must also sometimes be considered. She further sketched out the “dos” and “don’ts” of cross-examination which she illustrated with a list of situations where the cross-examiner’s behaviour could be harmful. For example: the cross-examiner should refrain from asking a question he does not know the answer to. He should not plead or argue with the witness during the cross-examination. For time management and efficacy purposes, one should not waste an unreasonably long time reading documents with the witness. In addition, one should never underestimate the preparation required to successfully conduct a cross-examination.
Tim Foden closed the panel by sharing highly useful insights about how junior lawyers are expected to help in preparation of and during the cross-examination. Such training constitutes a great opportunity for junior lawyers who have few occasions to practice their oral skills in the earliest stages of their career. They learn both by having an active role in the cross-examination preparation and when assisting the cross-examiner they have worked with at the hearing. Junior lawyers’ preparatory work will likely constitute the core of the cross-examination script. The junior lawyer is expected to master the record as well, if not better, than the senior lawyer he or she assists. The preparation of questions, of potential answers, of the objectives of each line of questioning as well as the assessment of their opportunity are all very important phases of the preparatory work. The hearing also offers a great opportunity for the more junior practitioners to shine: they are indeed the best placed to scrutinize the transcript and gather all the information necessary to the senior lawyers to adapt their cross-examination by picking up on what has just preceded during the hearing. This is where their in-depth knowledge of the case will prove the most useful, as senior lawyers are sometimes too busy dealing with other aspects of the hearing to catch each and every detail of the opposing party’s interventions. Mr. Foden nevertheless encouraged young lawyers to try to perform themselves a direct or cross-examination as soon as possible.
Every presentation was highly interactive, triggering comments by all other panelists who kindly shared their first cross-examination experiences in a very encouraging and reassuring tone. They prompted the youngest to watch, assist and learn, but also to “lean in” and advocate for themselves when they feel ready to conduct a cross-examination on their own.
After a coffee break, the Steering Committee divided the participants into groups that spent the rest of the morning preparing their questions in groups for the mock cross-examinations of the afternoon. They had been communicated the mock case including two witness statements of factice witnesses Mr Robot and Ms Terminator, respectively. The factice record also comprised mock exhibits and a detailed set of guidelines and rules.
After a studious lunch sponsored by LALIVE, the cross-examinations sessions started. There were 8 sessions in total, corresponding to 8 groups of approximately 4 to 6 cross-examiners cross-examining four different witnesses, played by Marie-Odile Désy and Maria-Irene Perruccio, Deputy Counsels at the ICC International Court of Arbitratoin (Paris), Eloïse Glucksmann, PhD Fellow and Junior Lecturer at the University Paris II Panthéon-Assas (Paris) and Konrad Staeger, Trainee Lawyer at Schellenberg Wittmer (Zurich). The two arbitral tribunals sitting simultaneously were composed of Marion Paris, Senior Associate at Lévy Kaufmann-Kohler (Geneva); Clea Bigelow-Nuttall, Senior Associate at Pinsent Masons (London); Hafez Virjee, Senior Associate at Dechert LLP (Paris); Panos Chalkias, Associate at Hanotiau & van den Berg (Brussels); Samy Markbaoui, Associate at White & Case LLP (Paris); and Geneviève Poirer, Counsel at Skadden Arps Slate Meagher & Flom (London).
Witnesses were thorough and arbitral tribunals were demanding, but all participants benefited from this practical exercise. They enjoyed testing their advocacy skills and using the advice shared during the morning session to control the witness and guide the cross-examination. At the end of each session, the arbitral tribunal provided each group with detailed, constructive feedback.
Participants all agreed on the very high quality of the morning panel and on the added value of the stimulating mock exercise. Young ICCA’s aims, providing a space for students and professionals to exchange ideas in an accessible way and, at the same time, promoting the use of arbitration and other dispute resolution methods to a young transnational community of practitioners, were met.
Ms. Tran Thang closed the workshop by congratulating all the participants for having made this event a success, and by thanking on behalf of all present the event’s generous sponsors: McDermott Will & Emery, for kindly hosting the event and offering the final cocktail reception and LALIVE for offering the lunch. Special thanks were further addressed to the Steering Committee, formed by Ms. Désy, Ms. Glucksmann and Mr. Granier, for successfully carrying out the organization of this first Young ICCA event in Paris. Their work deserves all the acknowledgment from the participants.
A cocktail reception at McDermott Will & Emery followed and closed the successful event, during which participants and organizers had once more the opportunity to interact in a more informal setting.
