The Art Of Cross-Examination In Commercial Arbitration
“The best questions in a cross examination are - the questions never asked ”
We've all grown up watching Perry Mason style cross examinations where, under the testing fires of a psychologically exhausting interrogation, the witness finally gives up his defence, throws his hands up in despair, and concedes having killed his girlfriend and having hidden the bloodstained knife under the big oak tree in his backyard. As a cross-examiner in a commercial arbitration, there is a good chance that you'll never have the pleasure of making this happen; having the witness cry on the stand, or having blood on the floor (no pun intended!) by the time you're done with a witness. But that doesn't stop us from trying, does it? Most of us keep trying and following cross-examination strategies that are more suited to a Criminal Sessions court, than a document-intensive Commercial Arbitration.
A good cross-examination requires deep engagement with the following questions, amongst others:
- Who should be examined as a witness, and for what fact?
- Drafting a witness deposition.
- How to prepare for cross-examination?
- How to structure questions?
- Are loaded questions permissible?
- What are leading questions?
- How to prove a document through a witness?
- When to seek a 'documents-only' arbitration, and skip oral evidence altogether?
- How to confront a witness with a previous statement?
- Is confrontation with documents (as opposed to previous statements) permissible?
- The need and importance of suggestions in commercial arbitrations (or lack thereof)?
- Tackling peculiar witnesses such as an enterprising witness, or a witness suffering from selective (and self-serving) amnesia;
- Importance of timely objections, as the cross-examining counsel, and as counsel for the witness;
- Whether to re-examine, or not (putting humpty dumpty back together again!)
These are good questions, but have no easy answers. But since we never stop trying, this column is an attempt to share a few thoughts on these issues and the first principles of cross-examination. So, without further ado, let's start at the start:
- Does the Indian Evidence Act ("IEA") apply to Arbitrations?
"Relevancy by law, or logic?"
Much like any legal dilemma abstracted to a principle, there is a short and a long answer to this one. The short answer is a 'No'. Section 1 of IEA provides that it does not apply to arbitrations. Section 19 of the Arbitration and Conciliation Act, 1996 ("Act") frees an Arbitral Tribunal ("Tribunal") from the shackles of the notoriously slow Code of Civil Procedure ("CPC") and the IEA. However, in the absence of a specific rule/provision guiding an issue, the Tribunal is not prohibited from drawing inspiration from the CPC or IEA, and that is what happens, especially with a tribunal comprising judges who have a practiced affiliation to the CPC and IEA.
A Tribunal, therefore, is not bound by the strict rules of admissibility laid down in IEA. A Tribunal can, for instance, look into an output of an electronic record, even without the strictest compliance of Section 65B of the IEA (dealing with conditions that are required to be satisfied before output of an electronic record is received into evidence), if it is otherwise sure of its creditworthiness.
Therefore, to sum up, IEA is a guide, and not a master. With that elephant in the room having been addressed, let us proceed to examine:
2. Choice and number of witnesses – The 'What', 'Who' and 'How' of proving your case.
"Evidence is to be weighed, and not counted"
Any fact can be proved either through oral or documentary evidence. Broadly, the following persons can be made witnesses:
- •An individual who has personal knowledge of facts and events pertaining to the case can testify as to things they have personally observed, sensed or witnessed. These witnesses depose on facts (as opposed to opinions);
- Expert witnesses, who give their (informed) opinions on specific niche areas,which require subject matter/domain knowledge.
Very few commercial arbitration have an oral evidence component, and are largely driven and provable through documents. And wherever a fact is reduced into writing (or required by law to be reduced into writing) the same is provable only through the document alone and oral evidence stands excluded. The best evidence rule further tells us that a document has to be proved through its author, executing or, in some cases, the attesting witnesses.
But before that, the first question that needs to be asked is 'What' are the facts that are required to be proved in order to succeed in a case. Discerning the 'Facts in Issue', therefore, is the first and the most important task, followed by an analysis of 'Relevant Facts'. Picture 'Facts in issue' as the core facts without proof of which you can't succeed. All 'Facts in issue' are relevant facts, however, all relevant facts are not 'Facts in issue'. Think of them as concentric circles. A Relevant Fact, in the sense that it is used in evidence law, is a surrounding fact (and not the core fact itself) that helps you prove or disprove a 'fact in issue'. For instance, in a case for damages on account of breach of contract, the facts in issue would be:
* Existence of a contractual obligation;
* Breach of obligation;
* Consequent damages.
Facts in issue, therefore, are the core constituents of the litigated claim, right or liability; facts which the party MUST absolutely prove in order to make out a case. Relevant facts, on the other hand, are certain surrounding facts that help the Tribunal understand the case better. For instance, to prove the fact in issue of 'existence of a contractual obligation', the party may rely on surrounding factors, which raise an inference of an existing contractual obligation. This may include : correspondence in the run-up to the contract, subsequent conduct of the parties, which shows assumption of responsibilities, et al.
The next enquiry is to examine as to whether the opposite party has admitted/denied the above. In case there is an admission on any of the above, whether in pleadings or otherwise, the same may act as waiver of proof and the party may be dispensed with the need of formally proving those facts. For instance, if the contract is proved, or receipt of a particularly damning email is admitted, no evidence needs to be led on that count. However, for instance, if a contract is denied, the existence of a contract can be proved through correspondence/letters/emails from which it appears that the parties took themselves to be a bound by a contract by their conduct.
With respect to the 'Who' part of leading evidence, in a case where oral evidence is needed, the executants and witnesses of a contractual obligation can be called into the witness box to prove the existence of a contract, and its breach.
Imagine a well-crafted witness deposition as a wall made of bricks of facts-in-issue, held together by the sinew of relevant facts, and the task of a cross examining counsel is to break holes into that wall.
How many witnesses?
"Two many witnesses spoil the broth, or is it?"
The jury is still out on whether multiple witnesses should be introduced to prove a single fact, or not. Traditional wisdom says that it is suicidal to do so. Too many witnesses on a single fact may be like sitting ducks for a shrewd cross-examining counsel, who may be able to punch holes in their testimony by exposing contradictions inter se witnesses; this is for the simple reason that no two people would have the same perception or recollection of an event. This is also known as the Rashomon effect.( The effect is named after Akira Kurosawa's legendary 1950 film 'Rashomon', in which a murder is described in four mutually contradictory ways by its four witnesses). Although it may also be argued that having multiple witnesses on the stand to prove a single fact may allow a witness coming subsequently to fill-in the lacunae left in the testimony of the earlier witness, however, the disadvantages of such a course of action somewhat outweigh the perceived advantages. All in all, if you're the cross examining counsel, multiple witnesses constitute an opportunity as well as a challenge.
3. Proving a case through Authorized Representative ("AR")
In most contractual cases involving companies, no single individual has personal knowledge of the entire set of facts; in such cases, the company files and pursues its case through its AR. However, many a times, the power to institute a case and the power to depose are confused. It needs to be kept in mind that the power to depose or be a witness of a fact can never be outsourced. The witness has to be the person who perceived the fact/event sought to be proved. ARs also, while deposing, should clearly set out what facts they testify on the basis of personal knowledge, and which facts are based on documents, else they run the risk of their testimony being eschewed from consideration on the ground of 'hearsay'. It is important to discern the facts which the AR has no personal knowledge of, and to arrange for better proof of those facts through the direct source, whether through ex-employees, or otherwise. The witness who heard, saw, or otherwise perceived that fact ought to be brought to the witness box. Many a cases have been lost on best evidence in a case not being brought forth, and the Tribunal drawing an adverse inference against the party not getting the real McCoy.
4. Rule of Best Evidence -
"The good, bad and the best (evidence)..."
5. Documents only Arbitration
"Men often lie, and so do documents"
Since most arbitration are document-centric, it is a good time saving exercise for the parties to agree on a 'documents only' arbitration wherein the Tribunal decides the case on the basis of documents and no oral evidence is led. For instance, if both the parties accept the execution of the contract, but place different interpretations on it, the Tribunal may dispense with evidence of either party, and hold that it is the obligation of Tribunal to interpret the contract and decide the case on the basis of its reading of the contract. However, a 'documents-only' arbitration may not be suitable for all sorts of disputes. For instance, multi-party arbitrations or complex cases, such as those arising from some niche industry, may require detailed technical evidence, and are not really suitable for this form of arbitration. Also, many written contracts, even though extremely sophisticated in their design and level of detail, may still leave out room for implied terms being read into the contract, which may give some window for oral evidence to be brought forth. As an illustration, an ostensibly absolute and unqualified right of 'drag-along' granted to the majority shareholder/investor, may still be qualified by the implied obligation to act in good faith, and an implied obligation not to bring about a situation in which rights of the minority are undermined and the value of the company is eroded. In those situations, the Tribunal may be inclined to hold evidentiary hearings and not decide the matter solely on the basis of 'documents-only'.
- Drafting an affidavit in lieu of examination in chief/witness statement/deposition.
'Less is more'
- Whether to cross-examine a particular witness or not?
It is perfectly okay not to cross-examine a witness, if the witness' testimony, even if allowed to go unchallenged, does not materially harm one's case. Do this thought experiment : take the witness testimony, take each fact therein to be proved, if that doesn't materially hamper your case, don't cross-examine. Please remember, as many cases are lost on cross-examination, as won.
- Broad approach of cross-examination.
- How to frame questions.
"Leading them, to the edge of the cliff, and beyond.."
Leading questions- In common law systems that rely on testimony by witnesses, a leading question or suggestive interrogation is a question that suggests the particular answer or contains the information the examiner is looking to have confirmed. A Leading question, as per S.143 of the IEA, is any question suggesting the answer, which the person putting it wishes or expects to receive.
Examples of leading questions are:
- Is not your name John Adams?
- Do you reside at 1, Park Street?
- You are into the business of betting, aren't you?
- You wear glasses, right?
- You can't see objects in the distance clearly without your glasses, right?
- It was raining that night, wasn't it?
However, a question such as "When did you Murder A, B?" is an assumed/loaded question and may not be allowed, though questions such as this are sometimes very effective way of obtaining admissions. For instance, in an action relating to breach of contract by an employee, one may confront the employee denying the receipt of an email with a document (otherwise denied at the admission and denial stage), and ask him "What was the reason for not escalating this damning email to the management?" Now this question is framed to assume the receipt of the email; though traditionally looked-at as unacceptable, but such questions may allow the cross examining counsel to somehow get the witness to admit to an email or a document, which he may otherwise be tutored to deny, if asked about in a straight forward manner. By framing the question correctly, the cross examiner can shift the focus from receipt of the email, to the sufficiency of reasons for non-escalation of this issue; if the witness falls into this trap, the witness would quickly become self-justificatory and start ascribing reasons for non-escalation of the email to the board of directors, but in the process - end up conceding the receipt of this email, which is all that one would normally require in such circumstances.
- Impeachment of credit and the art of confrontation with documents/previous statements.
To impeach the credit of a witness is to call into question her veracity by means of evidence adduced for that purpose, or the adducing of proof that a witness is otherwise unworthy of belief. Some of the common techniques of impeachment of witnesses are:
- observation (perception);
- bias, interest or corruption;
- prior conviction;
- prior bad acts (bad character);
- prior inconsistent statements (self- contradiction);
- specific error (contradiction);
- reputation for veracity.
Confrontation with prior inconsistent statements is one of the most effective ways of discrediting a witness. This is also a legal requirement as some cases suggest that a witness ought to be given an opportunity to explain away a discrepancy and any contradiction not put to a party in cross examination cannot be used against that party.
Coming back to cases where a witness is confronted with a previous statement, If the witness disowns the previous inconsistent statement as having been made under mistake, recorded incorrectly, or given under wrong legal advice (as such witnesses are wont to do); in such cases, the cross-examining counsel should ask the witness whether he ever disowned the previous statement, or applied for its rectification or correction, or filed any complaint against the wrong legal advice given. If the answer to these questions is in the negative, the cross-examining counsel successfully drives home the point that the witness is unworthy of credit and has adopted vacillating, self-serving and mutually inconsistent stands at different times, and is now trying to cover up the lacunae in her case.
- "I Object...." Dealing with objections during cross-examination.
These are the common objections raised by the cross-examining counsel vis-à-vis parts of testimony and documents sought to be tendered in evidence by witness in his examination in chief (or direct examination). However, objections are not the sole privilege of a cross-examining counsel. The tenor and line of questioning by a cross-examining counsel may be objected to by the counsel for the witness on the following grounds, amongst others:
- General or unspecific questions: such questions call for lengthy answers and may possibly lead to uncontrolled and unresponsive testimony from the witness.
- Unintelligible Questions: Misleading, vague, ambiguous questions that do not call for or permit a specific answer.
- Duplicitous Questions
- Argumentative questions: Questions that call for arguments in place of answers from the witness must be objected to.
- Erroneous questions: A question that contains misstatement or distortion of evidence or is an incorrect repetition of the witness evidence must be immediately objected to.
- Speculative question: Such questions call for witness' personal knowledge or opinion.
- Tackling the enterprising - Volunteering Witness:
We know by now - Cross-examination is all about asking tightly knit leading questions and giving little room to the witness to wriggle away or spin a narrative; leading questions, as we've seen above, are questions which admit of no other answer except a simple 'yes' or 'no'; however, there are some questions which do not admit of a mere 'yes' or 'no' answer and require explanation. A classic example is: "Have you stopped beating your wife?"; now is a question that can't be answered in a yes or no. Because if a witness says yes, he accepts that he was beating his wife earlier, and if he says no, he still is. These are the kind of questions, where the witness is perfectly entitled to refuse to answer in a simple 'yes' or 'no' and volunteer information and say – "I don't have a wife" or "I have never beaten her", therefore, neither 'yes' nor 'no'. However, this is just one of the very rare situations where the witness should be allowed to volunteer information and travel beyond the negative or the affirmative. The general rule, therefore, remains that the witness ought to answer in a yes or no, and should not be allowed to volunteer information. A witness may not foist into his answer, in any examination, statements not in answer to questions put to him. This is called 'Volunteering evidence', and the counsel of the opposite party should be on his guard to check its introduction by raising emphatic objections. Though in practice it is extremely hard to convince the Tribunal to do this, but the Tribunal is fully empowered to strike out answers which are not responsive to the questions or which introduce opinion, when the same is not sought. Some witnesses go overboard with their responses and end up harming your case. For example:
Q: You recognized the driver in the car, didn't you?
Q: It was Frank Jones, wasn't it?
In such a scenario, the ideal step would be to appeal to the Tribunal to instruct the witness to stick to the answer to the question asked. Therefore, where the witness is unresponsive and the answer is inadmissible, one must object and move to strike. However, in case of an admissible response, appealing might expose your weakness to the tribunal and to the opposite counsel, giving her a chance to milk your weakness, which stands exposed.
From a defender's perspective, a volunteering witness may unsettle an otherwise potentially successful case, and this is not an uncommon disaster during an examination. This is where witness preparation assumes importance. The first and foremost step must be to educate the witness about the dangers of volunteering information. The witness must be made aware of the purpose of cross-examination, which is fact-finding opportunity for the opposite counsel. The witness must also be educated about strategies that maybe employed by the opposite counsel in eliciting answers from the witness. During your witness' examination, interrupting the witness must be avoided in order to keep the trust and the confidence of the witness intact. However, if the witness is going absolutely astray, then interjecting can save you from a potentially prejudicial testimony.
- Effect of giving up a witness who was in the list of witnesses filed earlier:
- Cross examination by co-respondents:
- 'To suggest, or not to suggest?' The importance of suggestions.
- Re-Examination "Putting Humpty Dumpty back together again…."
- Whether to cross-examine post a re-examination?
If on re-direct (or re-examination), a witness produces wholly new and harmful testimony, the counsel must insist on cross-examining such witness. However, the request for cross-examination must not be made unless the questions can alleviate the new harmful testimony, if not remedy it in toto. Another way of going about it is by seeking to reserve right to deal with the additional harmful testimony in submissions. The same may receive favour from the Tribunal insofar as it concludes the examination of the witness.
- How to cross-examine witnesses with selective amnesia? "Blessed are the forgetful for they get the better even of their blunders."
A forgetful witness is one of the most frequently encountered category of difficult witnesses. Efforts should be made to elicit yes or no responses as much as possible. The Counsel must be ready with materials such as earlier depositions, documents, etc. to jog the memory of the witness. For instance:
Q: Mr. Contractor, when did the site engineer first inform you about cracks in the foundation?
A: I don't really remember.
Q: Didn't the site engineer raise this concern in the daily progress report dated January 23, 2011, forming a part of the documents filed along with your counter-claim?
A: I guess he did.
In case such materials are not available to be put to the witness in order to refresh her memory, the counsel must ask questions on related topics to refresh the witness' recollection. If the counsel expects that the witness, in order to evade answering questions with respect to a particular period, may claim amnesia, it may be a good strategy to anticipate such an feigned amnesia and start the cross examination with asking witnesses information on questions which are ostensibly self-serving (but cause little damage); the witness, in his keenness to build the case, would depose, in clear and precise terms, facts and incidents dating years back. Having established that the witness has no problems of memory and recollection, it would now be tougher for the witness to claim ignorance as to other facts (which are damaging to his case), which date back to the same time period.
- Whether or not to prepare in advance?
- Strategizing the flow of cross-examination – parting thoughts:
The next question that arises is whether it is a good strategy to ask questions para-wise on the basis of affidavit in evidence of the witness, or should cross-examination be conducted thematically. The answer to this may be – a bit of both. Broadly, it is best if the cross-examination is issue/theme wise. For instance, if you have a case that deals with aspects of misrepresentation (pre-contract) as well as post execution breach of contract, it would make for easier reading of the Tribunal to maintain this distinction. Having said this, there is, of course, no formula, which can be ritualistically adopted. A lot of thinking on one's feet goes into a cross examination and the counsel should constantly invent and reinvent his strategy, if he sees the witness is able to anticipate questions and answer them guardedly. An (ostensibly) unrelated question can throw the witness off balance, and disturb the rhythm. Every witness has an Achilles heel; some of the well-heeled, have more than one; in such cases, throwing in a mean one every now and then keeps the witness nervous and doesn't allow him to settle into a comfortable rhythm. These maneuvers are a paper by itself, but fortunately need no more training in books than in the behavior and psychology of men and women. University of life, as they say, is the best school for cross-examination.
The Article is authored by Authored by Bharat Chugh, Former Judge and Partner Designate - L&L Partners, Law Offices and Abhilasha Vij, Senior Associate, L&L Partners Law Offices. The authors can be reached at firstname.lastname@example.org and email@example.com.
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