Leonardo de Campos Melo [1]
In our first blog entry, published on this website on September 18, 2017, we discussed whether cross-examination is a form of art or a learned skill. We clearly announced our belief: “well-executed cross-examinations are far more the product of science than of art”.[4]
Let´s now turn to the main current practices in cross-examination adopted by arbitrators, with special focus on those from Brazil.
If the term “cross-examination” is understood only to be the right of a party’s counsel to ask questions to the opposing party and to a witness called by the opposing party, then, of course, there is universal acceptance of that right. However, acknowledging the right to ask questions does nothing to answer whether the cross-examining lawyer has the right to ask leading questions. By leading questions we mean questions that prompt or elicit a particular answer that supports the theory of the case developed by the questioner. A leading question asserts a fact and seeks the agreement of the witness with that fact.[5] By way of contrast, a non-leading question calls upon the witness to supply the facts. Because a non-leading question leaves to the witness a broad range of possible answers, non-leading questions are also referred to as open-ended questions. In Brazil there is not general acceptance of the right of a lawyer to ask leading questions on cross-examination. We cannot find even a majority and a minority rule.
Arbitral tribunals are assembled on a “per-case” basis. Therefore, in advance of the creation of a panel, counsel is left with no guidance as to what cross-examination means. Each arbitral tribunal has its own view of what cross examination is meant to be and what techniques are or are not allowed. This lack of a uniform set of rules on cross-examination dramatically decreases counsel´s ability to evaluate how successful will be his/her ability to introduce relevant evidence through opposing party and its witnesses. Counsel´s inability to gauge the likely results from crosses built on leading questions leads to a sharply reduced ability to foresee the identity of needed direct-examination witnesses, and the necessary scope of those direct-examinations.
The bottom-line: a lack of uniformity in the understanding of the purposes and methods of modern cross-examination results in less efficient use of the time allotted for the hearing.
Some arbitrators´ resistance to cross built on leading questions
Generally speaking, Brazilian arbitrations are not keen on allowing counsel to ask leading questions. More specifically, there seems to be a sort of resistance by Brazilian arbitrators in what concerns the use of leading questions, and some tribunals have issued pre-hearing procedural orders in which they expressly state that leading questions will not be allowed (e.g., “During the hearing, counsel shall not ask leading questions to the opposing party or its witnesses”).
We have interviewed some Brazilian arbitrators, hearing from them that “Brazilian arbitration practice should not adopt the US style of cross-examination”. According to such arbitrators, leading questions limit the witness’s responses. In addition, they view the impact of leading questions as reducing the over-all value of oral evidence.
Guidance required
Brazilian attorneys commonly voice their desire to have more guidance from arbitral tribunals in whether cross-examination included the right to ask leading questions. In addition, counsel welcome the pre-hearing guidance of what the arbitrators view as the central issues of the case or factual issues requiring more explanation, so that they can better prepare for cross.
However, one must not lose sight that it remains the duty of the advocates to educate the arbitrators on what issues each party believes is important to adjudicating the dispute. While arbitrators are the ones who must decide the case, it is for the advocates to elucidate the case as they view it.
Overprotection by Tribunals
Brazilian attorneys also voice a concern that some arbitrators tend to overprotect the witnesses, so that counsel performing cross-examinations are unable to effectively confront the witness with impeaching evidence or with relevant evidence that weighs against the interests the witness seeks to protect.
It is well established that a witness should be protected from questioning subjects or techniques designed to harass or embarrass. Certainly each Tribunal will judge the appropriateness of the questioning and the manner of questioning in the context of that case. However, a witness should not be protected from uncomfortable but relevant facts posed in cross examination.
Preparing for cross “in the dark”
Arbitration laws worldwide, including the Brazilian Arbitration Act of 1996, as well as the arbitration rules of the major arbitration institutions, do not specify procedural aspects of oral evidence and cross-examination. However, there seems to be a well-established international practice according to which fact/expert witnesses attending the hearing must previously submit a written statement/report.
In fact, after a long debate among practitioners from both civil and common law backgrounds, the International Bar Association issued the “IBA Guidelines on the Taking of Evidence in International Arbitration, which adopted as best practice said mandatory submission of written statement/reports by the fact/expert witness in advance of the hearing. And the underlying reason for such practice is self-evident: counsel must know ahead of time the subject of a witness´s testimony, so that they can adequately prepare cross.
While Brazilian arbitrators appear to be very well acquainted with such best practice, some have opted not to apply it. As a direct consequence of this lack of procedural predictability, counsel are hobbled in their ability to efficiently prepare a tight cross-examination most useful to the Arbitral Tribunal. The larger the number of potential witnesses, the greater the resulting inefficiency.
Our overall conclusion: the procedural uncertainty surrounding the rules of cross-examination makes arbitrations less efficient for all participants and especially – the arbitrators.
In our next and final blog entry on cross-examination (n. 3), we are going to address how some of the practices discussed in the present blog post undermine the ability of attorneys to effectively perform cross-examination, and also suggest what could be done to properly address these issues.
[1] Leonardo de Campos Melo is a partner at Sergio Bermudes Advogados, with extensive practice in complex domestic and international commercial arbitration cases. Leonardo authored books and articles in Brazil and abroad, including “Recognition and Enforcement of Foreign Arbitral Awards in Brazil – A Practitioners´ Guide” (published by Kluwer Law International) and lectures on Arbitration at the PUC-Rio Post-Graduate Program, and on Cross-Examination at the arbitration course run by the Brazilian Bar Association, Rio de Janeiro Section.
[2] Larry Pozner is the United States’ acknowledged authority on cross examination. His unique full-day programs on cross have been presented throughout the US, Canada and Brazil. Larry is co-author of America’s best selling treatise “Cross Examination: Science and Techniques” (published by Lexis Law Publishing). He is a trial lawyer, founding partner at Reilly Pozner LLP, with over forty years of trial experience in complex commercial cases and criminal defense.
[3] Some of the findings contained is this blog entry were shared with the authors by distinguished Brazilian practitioners, including renowned counsel and arbitrators, to whom the authors are much thankful.
[4] http://www.cbar.org.br/blog/artigos/cross-examination-in-the-arbitration-practice-art-or-learned-skill
[5] Here is a simple example of a line of questioning with leading questions only:
- You are an attorney?
- You have practiced law for the last 30 years?
- You were the lead counsel on the case of John Doe v. Jane Doe?
- You won that case for John Doe?
- It is true, isn´t it, that that case gave you a lot of visibility?
As a matter of fact, that case turned you into a superstar lawyer?