Leonardo de Campos Melo [1]
Larry Pozner [2]
This is the last in a series of three blog entries dedicated to cross-examination within the Brazilian arbitration practice.
In our first blog entry 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” (available here).
In our second blog entry we assessed the main current practices in cross-examination adopted by arbitrators, with special focus on those from Brazil. Our overall conclusion was that the procedural uncertainty surrounding the rules of cross-examination makes arbitrations less efficient for all participants and especially for the arbitrators (available here).
We are now going to suggest what in our view could be done to improve the Brazilian arbitration practice through a more uniform application of rules of cross-examination.
The critical role of preparation
The job of the advocate in arbitration is to do the very hard and most important work before the hearing. It is in the months leading up to the hearing that advocates search out and test the most important evidence. It is the advocates’ thorough preparation that narrows down a hodge-podge of facts into a coherent and legally meaningful recitation inside the arbitration. Thorough preparation involves both narrowing the case to the points essential to the desired decision and then preparing a fact-intensive presentation that allows the arbitrators to appreciate the facts in the context of this dispute.
The hearing itself is not and should not be the venue in which advocates search for the facts which will support their client´s theory of the case. The hearing is designed to display the facts, so that the adjudicators will have the opportunity to better learn the relevant facts of the case. The hearing works best not as a venue for exploration, but as a venue for explanation.
Any procedure that devalues the worth of thorough preparation does a disservice not only to the parties, but just as importantly, to the arbitrators.
While it is common that new material will emerge during the examination of witnesses, to be of value, the advocates must fit these factual additions into their existing theory of the case. New facts aid or undermine existing theories of the case, but they virtually never generate new theories.
Our following propositions and observations are therefore founded on the premise that the efficient presentation of facts in arbitrations involves the extensive use of cross-examination of witnesses called by the opposing party and of the opposing party as well. Inherent in that right to cross-examine is the ability of the advocate to use leading questions.
Procedural dependability
While each arbitral tribunal will have its preferred methods of gathering oral evidence, at some point there must be a certain level of procedural regularity in order that lawyers can properly prepare to present their case. Therefore, a lack of consistency on the practice of cross-examination, especially in what concerns the ability to use leading questions, leads first to uncertainty on the part of the advocates, and then to a presentation of evidence that favors the deceptive witness and party. That uncertainty serves as a barrier to efficient preparation, as the advocate cannot fashion tight bundles of questions (chapters of cross-examination) that are designed to efficiently introduce facts in the context of this dispute.
Why leading questions are key to effective cross-examination
The value of any judicial procedure or rule of evidence is judged by its ability to advance the goal of arriving at a fair judgment of the dispute and does so at only at an acceptable societal cost. An example is the attorney-client privilege. There is no doubt that prohibiting inquiries into what a client may have told their lawyer impedes the truth-finding function, but we tolerate that barrier as societies around the world have judged that the cost/benefit analysis weighs in favor of encouraging unfettered communications between client and lawyer.
For several hundred years many developed judicial systems have embraced the right of an advocate to cross examine by leading questions witnesses called by an opposing party, and even the further right to call for purposes of cross examination an opposing party or an agent of an opposing party.[3]
For instance, each of the 50 states of the United States is free to adopt its own rules of procedure for cases tried in its state courts, and all of them have adopted this same right of cross examination using leading questions.
We leave to true judicial scholars to trace the development of the right to cross examine. As mere trial advocates we content ourselves with the fact that many judicial systems free to experiment and refine their rules of procedure have adopted the procedure of cross-examination using leading questions.
In addition, we add our observation of human nature.
We must recognize that, in spite of any oath, witness with a stake in the outcome will recite the facts in a way that comports with their own self-interest. That is not an Anglo-Saxon concept, but recognition that people will protect their self-interests. People do this daily in the functioning of their life. They do not abandon these tendencies when they enter a courtroom and take an oath.
An arbitral tribunal will predictably allow evidence of motives, interests, and biases. In doing so the arbitrators have already recognized that a party or an agent for a party, or a witness closely identified with a party will be inclined to shape their testimony to fit their desired outcome. That does not mean that we expect a witness to lie, though that is certainly a possibility. Just as likely, the witness will omit from their testimony facts that would aid the opponent’s case or undermine their side of the dispute.
In addition, we must recognize the obvious: witnesses identified with parties have surely been prepared by the lawyer calling that witness. If we truly felt that spontaneous testimony was the surest path to the truth we would forbid preparing a witness. But we know that is an absurd concept. We expect the advocate to meet with and prepare their witness, and we believe that witness preparation is desirable as it allows the advocate the ability to both learn facts and to filter the facts into stories of importance to the desired outcome of the dispute.
Furthermore, we do not require the witnesses to meet with the opposing advocate before the arbitration. Especially in a system like the Brazilian that does not allow depositions and otherwise limits pre-arbitration discovery, the best a cross-examiner can do is thorough factual research allowing for pin-point cross.
The leading question does not, in any way, distort the truth. It assists in uncovering the truth. A witness is always free to answer “no.” But if the prepared advocate has researched a fact, believes it to be true, asserts that fact inside a leading question posed to a witness aligned with the opponent, and receives an affirmative answer, the benefit is not only efficiency, but, most importantly, assistance to the fact-finders – i.e., to the arbitrators.
One should never exalt the unexpected over the well-prepared
Spontaneity in arbitration is very much overrated as an assist to arriving at a just result that is in accord with the evidence. Yes, the spontaneous assertion of a witness may provide valuable insight into facts that might otherwise have remained hidden. But we should never exalt the unexpected over the well-prepared.
When a tribunal adds the requirement that a party, before the hearing, provide a written statement signed by the witness who is going to give testimony – which, as seen in our previous blog entry, is a practice commonly adopted in arbitrations worldwide – it is self-evident that the result is an even less spontaneous presentation. We are assured that the witness is reasonably prepared to tell their version of the facts. Under such circumstances, it is even more incumbent of the arbitral tribunal to give the cross-examining advocate the tools necessary to challenge those statements or to bring forth facts that would otherwise remain hidden from the fact-finders, including, of course, the right to pose leading questions.
In summary, when we acknowledge the human tendency to protect one’s own self-interest, add the desired practice of preparing one’s witnesses, and acknowledge that a witness is pre-disposed to not cooperate with opposing counsel, allowing only open-ended questions – i.e., disallowing leading questions – tilts the procedures in favor of the crafty witness over the well-prepared opposing counsel.
The danger of open-ended questions
Open-ended questions provide a myriad of evasive avenues. Even if persistent, open-ended questions will eventually yield the target facts, and that process is tedious and inefficient. These are hardly the results to be valued.
Instead, the leading questions are designed to efficiently introduce facts that create a context by which the arbitrators can understand the potential significance of the evidence. In addition, one of the signal benefits of arbitration is the ability of the arbitrators to ask questions that they feel the advocates have not sufficiently addressed. Hearing what the attorneys are driving at better equips the arbitrators to pose the remaining questions that they believe the advocates have neglected. Our experience is that the use of well-prepared leading questions positions the arbitrators and counsel to ask fewer questions, but the questions are frequently more central to the heart of the dispute.
We do not suggest that by allowing leading questions arbitrators are limited in their ability to control the breadth of questioning. It remains the case that arbitrators can instruct counsel that a certain line of questioning does not seem pertinent, or that the questioning has become unnecessarily repetitive. However, disallowing an entire “line of questions” is a problematic ruling. What is the “line of questions’’ is almost impossible to foresee. Blanket prohibitions on an area of questioning should be exercised rarely by arbitral tribunals. We suggest that before giving such an instruction, the tribunal should ask the advocate to explain the relevance of the questions to the advocate’s theory of the case, or to the opponent’s theory of the case. If there is no relevance or when the time being spent is out of all proportion to the relevance, then certainly the instruction to “move on” is appropriate.
A wise advocate gratefully acknowledges when told that a certain line of questions is a waste of the both their and the arbitrators´ time.
Conclusion
We advocate a more standardized acceptance of the right of cross-examination, including the use of leading questions, as a procedure that serves the best interests of our clients by serving the legitimate and dominant interests of the arbitration system. Attorneys are well advised that the power of the leading question is not its form, but its factual content.
[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 and just released in its third edition). 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] See for instance United States Federal Rule of Evidence 611 – Mode and Order of Examining Witnesses and Presenting Evidence:
“(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.”