Young ICCA Workshop on Cross-Examination: Tallinn Edition

Join us in Tallinn for Young ICCA’s skills training workshop on cross-examination. 

Host:

Event Report

Authors: Maria Pihlak (Partner, Sorainen Tallinn), Ruxandra Irina Esanu (Senior Associate, Wordstone Dispute Resolution, Paris) 

On the 4th of October 2024, Young ICCA presented in Tallinn a cross-examination Skills Training Workshop in the framework of the inaugural Tallinn Arbitration Day. Hosted by law firm Sorainen, this was the first Workshop organised by Young ICCA in Tallinn. Students and lawyers interacted with leading arbitration practitioners to enhance their skills. The event was divided into two sessions.

Panel discussion

During the first half of the Workshop, four renowned practitioners discussed best practices and pitfalls to avoid when conducting cross-examination of witnesses. Shirin Gurdova, a co-Chair of Young ICCA and an international arbitration specialist, served as moderator and posed a series of questions to the panel ranging from the purpose and format of cross-examination in international arbitration to the tips on preparing for and conducting a successful cross-examination. The panel consisted of Maria Pihlak, Partner at Sorainen (Tallinn), Nusaybah Muti, Associate at Three Crowns (London), Anton Sigal, partner at Ellex (Tallinn) and Peter Rižnik, Independent Arbitrator (Vienna).

The speakers began by discussing the purpose of cross-examination and comparing the approaches of civil law vs common law. It was widely agreed that the purpose of cross-examination is to discredit the opposing party’s witness and persuade the tribunal on contentious issues under the dispute. Ms Pihlak warned against leaning into cross-examination with the intent to “destroy the witness” which shifts the focus from addressing the issues to an unpleasant psychological battleground and rarely results in a positive impact on a case. Mr Rižnik similarly emphasised that clarity on the goals of cross-examination is key to doing it successfully. 

Many thoughts were expressed on differences between civil and common law approaches to cross-examination. Mr Sigal explained that in civil law systems, the arbitrators are much more likely to be passive often focusing on the evidence and written submissions rather than engaging directly in questioning witnesses during cross-examination. He added that leading questions may be less common as witnesses are typically allowed to provide narrative responses, and the focus is on exploring the facts rather than challenging credibility through leading questions. Ms Pihlak observed that witness preparation is treated with greater rigour in common law systems, whereas in civil law countries, there is either none or preparation is rather minimal focusing on factual accuracy. There are oftentimes no legal guidelines for lawyers in civil law systems regarding preparing a witness. Mr Rižnik highlighted the importance of an holistic assessment of evidence in civil law systems, where cross-examination may not carry the same weight as in common law systems.

The matter of “how” of cross-examination revealed various practices. Mr Sigal was adamant about always preparing his own cross-examination outline, whereas several practitioners in the room insisted they use the help from associates and seniors to collect input. Many lawyers prefer working with carefully drafted scripts, others find a topical approach more beneficial for best manoeuvring. Ms Muti provided thoughts on the usage of a decision tree and how this approach can help identify the weakest and strongest points in a cross-examination in a methodological manner. What everyone agreed, however, is that lawyers must prepare at length and study the record thoroughly in order to be successful.

Some of the other insights on best practices included:

• Working with a second chair in cross-examination. Ms Muti explained the importance of thorough preparation of the second chair, and the role the person plays in a successful conduct of a cross-examination.

• The fear of performing a first cross-examination is best managed by thorough preparation – putting in the hours to understand the witness evidence and the record, drafting the outline for a cross-examination, performing a moot, and collecting input and feedback from a supervising attorney. Ms Pihlak noted that the partner’s support for a lawyer performing their first cross-examination is extremely important, but no one size fits all.  Some lawyers may prefer tackling the challenges of their first cross-examination alone, while others value active engagement from their partner. Whatever the expectations are, communicating them openly and asking the question “how can I help” is integral to building the right spirit.

• The importance of preparing your witness for a cross-examination and managing that witness during the cross-examination can be too easily overlooked. It is a highly stressful situation, and witnesses oftentimes fail not because of their ability to answer tough questions but because of fear of appearing inadequate. It is a counsel’s job to help a witness understand these psychological challenges and provide tools to navigate them. Simple explanations such as “ask to clarify a question” and “take your time to read the paragraph” can go a long way. Similarly, a counsel should be prepared to interfere with an objection when there are signs of undue stress on the witness due to aggressive questioning by the opposing counsel. 

• The manner by which the counsel carry themselves goes a long way. Mr Sigal and Mr Rižnik both emphasised the importance of maintaining a polite composure throughout the cross-examination. Regardless of whether you are a participant in the hearing or the cross-examiner, your facial impressions and any noticeable engagement in a room need to be respectful. Mannerisms such as eye-rolling, improper chuckling, dramatic hand gestures have no room and place in a hearing. 

   

Finally, the speakers advised attendees to experiment and practice until they find their own voice. Cross-examination is an art and everyone is a unique artist in the story they tell and the message they convey. With careful preparation and focus on the key outcomes combined with the right attitude, there is a good likelihood of performing a successful cross-examination. 

Practical cross-examination exercise

In the second part of the workshop, participants witnessed a simulated cross-examination based on a mock case.  Kieran McCarthy (acting as counsel for the respondent) cross-examined Dragana Nikolic (acting as claimant’s main witness) and Ruxandra Esanu (acting as counsel for the claimant) cross-examined Mailis Meier-Lutterodt (acting as respondent’s main witness).

The cross-examinations purposefully illustrated some of the most important do’s and don’ts of this exercise:

• Know your case. It is fundamental to any cross-examination, as explored during the panel discussion, for the cross-examiner to know their case.  This allows them to avoid any surprising answers from the witness or any documents “popping up” in the cross-examination without being anticipated.

• Plan ahead. Organization is fundamental to a successful cross-examination. Structuring a cross-examination by topics and/or in chronological order helps the arbitral tribunal follow and understand more easily the points that counsel seeks to make through a cross-examination. Having the relevant documents handy – to be displayed on a screen or handed out in paper – is a powerful tool to make important points during the examination.

• Witness control. While this is a key notion in any cross-examination, it is necessary to strike a balance between controlling the witness (for instance, politely but firmly interrupting when they are not answering the question) and harassing the witness (which is likely to give rise to an objection and interrupt the flow of the cross-examination). The notion of witness control was also discussed in the subsequent feedback session, with civil law-trained practitioners taking the view that this is a task for the arbitral tribunal, while common law-trained practitioners took the view that counsel may also instruct the witness (albeit under the tribunal’s control).

• Objections. These can be key tools, used as a shield (for instance, to cut the flow of the cross-examination of our witness, if they are being badgered by counsel etc.) or as a sword (to avoid counsel putting words into the witness’ mouth, to ensure that the witness is shown the documents on which they are asked questions etc.). Objections should be used with caution, so as not to appear uncooperative or dilatory, and under the tribunal’s control.

• Self-control. Cross-examinations are typically stressful not only for the witnesses (or experts) undergoing them, but also for counsel. Advance preparation is not the only key to managing the pressure. Counsel should strive to remain, in all circumstances, calm and courteous towards the witness they are examining. Likewise, body language and facial expressions are key, and counsel should avoid “giving away” that the witness has made a good point or has provided an answer detrimental to counsel’s case strategy.

• Practice makes perfect. Cross-examination is a skill that can only be perfected through practice, practice, practice. Practical experience and feedback from the team (a second chair, a supervising attorney, as suggested during the panel discussion) are key tools to becoming a better cross-examiner.

The Workshop concluded with a networking cocktail reception kindly hosted by Sorainen.