How to Give Evidence in an Arbitration Hearing

Some Expert Witnesses are engaged many times but are rarely called to a hearing.

This is because the best result in any dispute is an agreed settlement.

But then parties are reluctant to engage an expert that has not yet been in the chair for a cross examination.

So how do you cross this “catch 22” barrier.

The way I did it was to go overseas to a relatively minor dispute that was engaged in a Dubai Arbitration that did go the whole distance.

Previously I had been appointed as Expert on Delay in four previous arbitrations that were settled. Subsequently I have been appointed twice.

So how to conduct yourself on your first cross examination?

The best advice that I can pass on to people facing their first cross examination is “Know your Brief and Tell the Truth.”

If you stick to that maxim then you can’t go far wrong. But remember that you are not allowed to take notes in with you so "Know your Brief by Heart” is the correct form.

The thing is that you don’t know that you can stand cross examination until you have done it. But I found that after the first nervous 20 minutes I started to enjoy it.

Before the Hearing

Clients Instructions

This formality is where the client’s counsel will issue you with instructions on how he wants you to present the case and what matters he wants you to address.

Make sure that you refuse any instructions that tend towards advocacy and bias. I was once instructed to present a “Global Claim”, I refused and resigned the commission.

Make sure that you have a Catch All sentence in the Instructions saying “Any other matter that you consider to be pertinent to the case.”

Counter Claims

I once was advising a client who was new to arbitration and was facing a sub contractor’s claim in the region of 1.5m US$. I asked “What is your counter claim?”. He replied “What’s that?” I replied “Usually about 150% of the incoming claim”. He decided not to mount a counter claim because he would have had to pay the Arbitration Fee. He lost but he would have won the Counter Claim of 2m US% because I put it in my report anyway but it was struck out because it was not listed as a head of claim.

During the Hearing

Remember that the QC questioning you will only ask a question where he already knows the answer – or should do. So answer succinctly and truthfully and you won’t go wrong.

Remember your first duty as an expert is to advise the tribunal – it is not to be an advocate for your client. At the first hint of bias you will be discredited.

But there are some things within the rules that you can do to help your client’s case some of which are:

Use up his time.

Each side has a strict time limit to use when cross examining the experts. I recall one counsel in cross examination ask a Quantum expert “What are prelims?”. The expert promptly took his opportunity and took 20 minutes in a text book description of the use and application of preliminaries in the construction process.

Query the Documents.

Some tribunals have electronic document presentation where cross referenced documents are projected on a screen and others where a printed copy is produced from the rack of files in the room. I recall one such where one of my documents was produced and the QC asked “Do you recognise this Mr Testro?” “Yes” I replied “but in my original version the paragraphs were in different colours for reference purposes, this is in black and white.” This caused great consternation in the referring party who were responsible for compiling the files. The question and answer took longer because I had to explain the missing colour reference of each paragraph.

If at all possible just answer “Yes” or “No” and avoid going into lengthy explanations. Two or Three brief sentences are the preferred maximum.

Evidence in Chief

This is where your counsel gives you the chance to set out your stall.

After your introduction and questions about your experience and qualifications you should be asked questions about the issues of the case, what your opinion is and how you formed them.

It is usually good practice if the two experts can reach agreement on points where their opinions differ. A Scotts Schedule is a useful device for listing the various points in discussion and what is agreed and what is not. It helps to focus the tribunal. The Tribunal will chose which opinion they prefer.

Cross Examination

This is where the other sides QC will try to destroy you. He will try to point out contradictions and anomalies in your report and apply different meanings to your words. If he has done his research he will bring out things that you have posted on LinkedIn or other media that seem to contradict what you have said in your report.

He will also be keeping his own record of what you have been saying, his assistants will be duplicating what the Tribunal’s own stenographers have been setting down. Nothing is more intimidating when in answer to one question he peers down at you, he is standing up you are sitting down, and says “But then Mr Testro, how do you reconcile what you have just said when only 47 minutes ago you said….” And he reads your words back to you.

Keep calm, be polite, answer truthfully and you should come through.

Re Cross

This is where your own counsel will give you the chance to redress anything that needs second thoughts.

Nothing is more frustrating than having a choice piece of information to impart to the Tribunal and nobody, not even your own QC, asks you. You cannot just tell the Tribunal on your own volition.

Hot Tubbing

This is where two experts are sat in front of the tribunal and are questioned directly by the panel of arbitrators.

Each expert answers the same question in turn and in theory they should give similar answers. The idea is to give further enlightenment to the tribunal. A side effect is that it is relatively easy to spot bias in an expert.

The same rules apply – Know your Brief and Tell the Truth.

Trick Questions

The classic one is “How much were you paid for your opinions?”

The classic response is “I was paid for my time – my opinions are my own”.

Under Oath

In an arbitration the witnesses give their evidence under oath and a series of holy books are produced for different faiths.

In some jurisdictions the oath is taken very seriously and failure to swear could disqualify an expert from giving evidence. So bite your tongue and swear dutifully.

While you are giving evidence under oath you are not to meet or discuss anything with anybody involved with the arbitration so during the lunch and coffee breaks you must isolate yourself from all the others.

I was once under oath for 5 hours which spread over two days so it was a lonely dinner and breakfast. Luckily I had a good book with me.

And finally, never underestimate the capability of a tribunal to get it hopelessly wrong. I once had my choice of baseline for the delay analysis thrown out by the Tribunal in its judgement on the grounds that "Since it had been used to report progress it could not have been the original programme."

Please Visit

www.expertdelayanalysis.com

Or for further information or advice ping me at

[email protected]