Litigation Partner Mark Cymrot reviewed a collection of essays, "Take the Witness: Cross-Examination in International Arbitration," compiled by Lawrence W. Newman & Ben H. Sheppard Jr. in the August-October 2011 issue of Dispute Resolution Journal, a publication of the American Arbitration Association. Cymrot has extensive experience in cross-examination in international arbitration, and has been published widely on the subject, including a popular article on cross examination.
The collection includes 21 essays by prominent international practitioners and is divided into three parts. The first part highlights two techniques Cymrot finds especially valuable: "never ask a question unless you know the answer" and "know your audience." The former gives a hostile witness the opportunity to undermine your case. The latter is important as the arbitrator might be from the civil law tradition and the attorney, from the common law tradition, two legal systems that have different rules and procedures. Cymrot echoes the book's advice to learn the arbitrator's preferences at the outset to avoid unnecessary errors.
Part two of the book describes anticipating cross-examination when presenting witnesses and part three deals with experts. Cymrot analyzes two caricatures of expert witnesses presented: the "honest but mistaken professional" and the "paid liar." He points out that the book describes the growing practice of "hottubbing" to expose experts' weaknesses—when both experts testify simultaneously and the strengths and weaknesses of their arguments quickly become apparent.
Cymrot also finds the chapter on challenging the credentials of legal, financial and technical experts useful, and reiterates the suggestion to thoroughly research the expert's background. Finally, he points out that valuable discussions of cultural differences, particularly the civil/common law divide, appear throughout the book. "Several authors warn that civil law-trained arbitrators may view a U.S. lawyer's aggressive cross-examination as crass and offensive, hurting rather than helping her client," he observes.
According to Cymrot, both "newly minted lawyers," and "courtroom veterans can…find nuggets that could enhance their practice, particularly as disputes become more international."
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