Mastering the Art of Cross-Examination

By Cymrot, Mark A. | Dispute Resolution Journal, August-October 2011 | Go to article overview

Mastering the Art of Cross-Examination


Cymrot, Mark A., Dispute Resolution Journal


Mastering the Art of Cross-Examination Take the Witness: Cross-Examination in International Arbitration By Lawrence W. Newman & Ben H. Sheppard Jr. (www.jurispub.com), 2010. Hardcover. $125. 312 pages.

Learning to be a lawyer was often by doing. In the 1970s, when Carolyn Lamm, one of the contributors to this book, and I shared a cramped office in the Justice Department, we were given 60 files, and told to file lawsuits where appropriate, try the cases where necessary, and come back for more when we were finished. TV's "Perry Mason" and Louis Nizer's memoirs provided my earliest lessons in cross-examination. Later, I cringed (but learned) as experienced lawyers elicited damaging testimony on cross-examination from my witnesses. Not the ideal educational tools.

Newly minted lawyers now have better tools available, including 21 superb essays written by prominent international practitioners in Take the Witness: Cross-Examination in Inter - national Arbitration, compiled by Lawrence W. Newman and Ben H. Sheppard Jr., who also contributed to the book. Courtroom veterans can also find nuggets that could enhance their practice, particularly as disputes become more international. Charles Renfrew, a distinguished retired federal judge-turned-arbitrator, writes in the Foreward: "For the newer entrant to international arbitration, the book is a source of examination techniques. For the experienced, it is a refresher of advocacy skills."

The book is divided into three parts, the first of which has nine chapters focused on techniques. The book begins with a chapter by Shep - pard on the basics of framing a short, direct question and using documents and prior witness statements, two skills essential to effective crossexamination. Another chapter, contributed by William Rowley, Markus Koehnen and Robert Wisner, discusses basic examination strategies. Part one then graduates to more sophisticated issues, including when to be friendly and when to impeach, when to stop cross-examining, and pitfalls and mistakes to avoid. Several contributors recommend techniques for dealing with hostile or wordy witnesses. Many contributors quote the golden rule of cross-examination: Never ask a question unless you know the answer. Doing so gives a hostile witness the opportunity to undermine your case. But sticking to the golden rule is not always advisable. A chapter by New man on using intuition in cross-examination highlights this important point. He writes about a plaintiff who he suspected of having had a relationship with a customer. (Who imagined the book would be sexy?) He did not dare ap - proach this delicate subject directly. Instead, he worked the plaintiff into making an admission. It is a good story and a good lesson.

"Know your audience" is another common theme. Contributor Steven Hammond recommends becoming familiar with the arbitrators early on. Laurence Shore offers a useful checklist of procedural items to continue the getting-to-know-you process. If the arbitrator is from the civil law tradition and the attorney is from the common law tradition, it is better to learn the arbitrator's preferences at the outset to avoid being scolded for doing something wrong. These two legal systems have different rules and procedures.

Part two of the book contains two chapters that fall under the subject of anticipating cross-examination when you present witnesses. …

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