Witness Preparation - A Key to Effective Advocacy in International Arbitration Nigel Blackaby o | Introduction It Is no secret that lawyers like to be in control. Written submissions can be researched, reviewed and perfected. Oral submission is a little more risky: who knows what questions the tribunal may ask? However, a good lawyer will rehearse, analyse all permutations of the issues and have the answers ready. There is, however, a time when the lawyer loses this control, ‘when an untrained third party takes centre stage. And it is a moment that most lawyers view with fear, trepidation and a degree of excitement. This is the moment when live factual and expert withesses take the stand without a script, to be thrown to the mercy of the other party's counsel's cross-examination and the piercing questions of the arbitral tribunal. For the lawyer presenting the witness, watching cross-examination is like watching a close family member perform acrobatics with no safety net save the very limited insurance policy provided by re- examination (otherwise known as re-direct). A case can be won or lost on responses. So should the lawyer just stand back and assume destiny will play its role or can something be done to limit the risks? Witness testimony provides the factual foundation of a case. If the witness fails to provide clear and credible evidence, the case that is built upon their testimony may crumble. For this reason, it is crucial that the witness be prepared to provide testimony before the tribunal. This is not a process whereby the witness is told the answers. Rather, itis a process which ensures that the witness has had the opportunity to refresh recollections of relevant events that may have taken place a long time ago, reviewed contemporaneous documents authored or copied to them, and prepared for what is likely to happen in the examination process. It is well established that witnesses may be interviewed and prepared prior to giving testimony, be it waitten of oral, in an intemational arbitration. This is expressly set out in certain arbitration rules, (IBA) Rules on page "1418" the Taking of Evidence in Internationat Commercial Arbitration and the LCIA Arbitration Rules: Art. 4(3) IBA Rules: “It shall not be improper for a Party, its officers, employees, legal advisors or other representatives to interview its witnesses or potential witnesses.” Art, 20(6) LCIA Rules:“Subject to the mandatory provisions of any applicable aw, it shall not be improper for any party or its legal representatives to interview any witness or potential witness for the purpose of presenting his testimony in written form or producing him as an oral witness.” Witness preparation is key to successful advocacy and the efficient conduct of arbitral proceedings. Without it, putting a credible and persuasive case before the arbitral tribunal may prove difficult or impossible. But what is the purpose of witness preparation, and what methods for preparing a witness are considered appropriate? The answers to these questions are not provided in any arbitration rules or guidelines, and may differ depending on counsel's legal culture and ethical duties; although these differences are sometimes exaggerated. Ultimately, this much is clear: witness preparation does not involve putting words in the witness's mouth, but rather enabling the witness effectively to assist the tribunal by fully and accurately describing the facts that are relevant to the issues in dispute. Witness preparation begins with the selection of witnesses and the preparation of their statements. it also involves preparing them for the crucible of cross-examination, as well as for direct and re-direct examination. Before examining effective strategies to prepare witnesses for each of these stages of the proceedings, we first tum to the purpose of witness preparation which underpins and justifies these strategies. U1. Purpose of Witness Preparation ‘The purpose of witness preparation, like all advocacy, is to assist and ultimately persuade the tribunal by enabling the witness to proffer relevant and credible testimony. Let us take an example. Ms. Jones, a witness in an arbitration arising out of a contractual dispute has been asked to teslify on events that took place several years ago, namely the negotiation of the commercial terms of a contract. As the dispute has been ongoing for several months, with one round of pleadings already exchanged by the parties, the parties have delved down into the details of the contract negotiations, and the terms of reference require the tribunal to decide fine issues of fact. Ms. Jones, however, has only recently become aware of the dispute, and has been asked to provide a statement and testify at the upcoming hearing. Ms. Jones is not a lawyer. She has never been involved in arbitration or court proceedings before, let alone testified. As someone who has never liked public speaking, she is apprehensive at the idea of being examined before the tribunal, page "119" Without adequate preparation, Ms. Jones may be unable fully to assist the tribunal. When asked to prepare a witness statement describing the negotiation of the contract, if unaided by counsel, she may focus on the issues that were contentious at the time, not those that are relevant to the dispute now. indeed, she may not understand the finer issues in dispute. When questioned on the stand, without any prior preparation, she may not be readily in a position to testify about the factual issues in dispute because she will not have tumed her mind to them or reviewed the relevant documents. Whilst she could refresh her memory by going through the various stages of the negotiation of the contract and the relevant documents on the stand, her testimony would likely take a day or two to complete. However, the timetable for the arbitrationhearing may only provide for only ten minutes of direct, and ninety minutes of cross- ‘examination. Moreover, without adequate preparation, Ms. Jones may be too nervous to fully and accurately answer difficult cross-examination questions that have caught her off guard. After reading her statement and hearing two hours of testimony, the tribunal may not have been enlightened on the issues in dispute and may well regard her testimony as irrelevant. Counsel for the party presenting Ms. Jones as a witness could have avoided this outcome by helping Ms. Jones to prepare to testify. This preparation should be aimed at ensuring that the witness can confidently and truthfully describe the facts that she has witnessed to the tribunal. The goal, therefore, is to give the witness the support she needs to tell her story. This is a fine batancing act. On the one hand, witness preparation that seeks to put words in the witness's mouth or that tums the witness info an advocate for the party will harm that witness's credibility. The witness must tell the story based on their own experience and in their ‘own words. A witness who gives an answer that sounds rehearsed, that repeats the words used by counsel (or the "party line"), or that seeks to draw legal conclusions will not persuade the tribunal and will open them up to attack from the other side, On the other hand, an underprepered witness who does not understand the arbitration process or which issues are in dispute may not be able to focus on or to recall the relevant issues or may be too intimidated or caught by surprise to provide a full answer to difficult questions. The preparation described below seeks to achieve a balance between these two extremes. I, Preparation of Witness Statements 1. Choosing a Witness As a first step early in the case, one or several witnesses will need to be chosen. This is arguably one of the most critical strategic decisions in an arbitration. A good witness is one who has direct knowledge of facts and information relevant to the issues in the case. a. The minimum number of witnesses necessary to prove the case ‘A good first rule in choosing a witness is to select the minimum number of witnesses necessary to effectively prove the case I need to prove subject to Ill. above. The relevant facts to a case may span several years from the initial negotiation of a contract page "120" or a decision to invest up to the date of an alleged breact nent cases) the adverse gov action. There should be a live witness available to testify for all relevant periods. If there has been one general manager throughout the relevant period then you may get away with a single factual witness. However, it is advisable to have at least two wilnesses as a safety net just in case one freezes on the day! But subject to the minimum of two, do not think that there is safety in numbers. The greater the number of factual witnesses, the greater the risk of contradiction and the less time for preparation. If | see that the other party has advanced three witnesses to cover the same meeting, I rub my hands for there will surely be a contradiction | can exploit on cross-examination b. Choose a witness for their direct and detailed knowledge of facts, not their seniority