// Cross-examination of fact witnesses in arbitration hearings

#1 End in Mind

When planning cross-examination, the first thing to identify is what you need from this witness to succeed in your case. Consider how this witness' evidence fits with your pleaded case. Does their evidence support or undermine it? What would you like to say about this witness in your closing submissions? Structure your cross examination chronologically and thematically around key topics - ideally no more than eight. Identify the material the witness provides in their witness statement and how this relates to other witness evidence and material on the record. If you keep your closing submissions in mind, your cross-examination should be targeted, succinct and address only the issues that will make a material difference to the outcome of the case.

#2 Adapt your style

The best advocates are able to tailor their style of cross-examination to the witness, Tribunal and case theory. Whilst cross-examination primarily tests the evidence of the witness, it is also an opportunity to build trust with the Tribunal. Read the witness statement and documents authored by them. How is this witness likely to respond? Can you take them to documents which support the response you desire? Is there a need to be combative? How will this be perceived by the Tribunal? Most Tribunals start on the premise that witnesses are inherently honest and trying their best to assist the Tribunal in understanding what happened. Cross-examine with courtesy to your witness and Tribunal. If putting allegations of dishonestly or that the witness is mistaken, or lying, ensure there is documentary evidence to support this assertion and put the allegation clearly and fairly.

#3 Less is more

Once you have the material you need for your closing, stop. Given the length of witness statements there are likely many aspects your client does not agree with. Unless these make a fundamental difference to the outcome of the case, leave them be. Taking issue with every point of disagreement detracts from the material points you want to make in your closing on which the case turns. Help the Tribunal identify these key points by signposting when you have what you need from the witness on a particular topic, and when you will be moving on. Give the Tribunal space to write these points down. Keep a note of transcript references to include the witness' answers in your post hearing brief.

Cross-examination should be purposeful, targeted and succinct. It should be clear to the Tribunal why it is necessary to cross-examine on a particular topic and how it impacts the outcome of the case. Press witnesses when they have been inconsistent, but be fair and courteous. Once you have the material you need, sit down!

Madelaine Power is a Barrister at Pinsent Masons in London, specialising in international construction, commercial and oil and gas arbitration, often with links to the GCC.