Written witness statements in lieu of oral testimony on direct examination have long been a staple of international arbitration hearing practice. Civil trial practice in the United States, however, has long followed the custom of oral direct examination of witnesses on each party’s case-in-chief. Practice in U.S. domestic arbitration has followed the custom in the trial courts. But adoption of written direct testimony as a civil trial convention may be the new wave in U.S. trial practice.
Among the 16 judges of the U.S. District Court for the Southern District of New York who revised their individual rules of practice in the past twelve months, eight have provided that civil non-jury trial direct testimony of witnesses under the control of a party shall be by written witness statement, and that the witness need not appear at trial unless cross-examination is requested by the adverse party or the court otherwise directs. (Such rules may be found on the court’s website, www.nysd.uscourts.gov/judges. See, e.g., the Individual Rules of Practice of Judge Colleen McMahon). The emerging judicial preference for this practice may be more widespread, as some of those judges who do not yet categorically required witness statements by rule will impose the practice in case-specific procedural orders. The trend is likely to be significant also for domestic arbitration practice in the United States. Many U.S. arbitrators who sit in domestic as well as international cases prefer to have witness statements, but often encounter resistance from counsel unfamiliar with the practice. But as more arbitration counsel gain experience with witness statements in civil non-jury trial practice, and arbitrators are able to reference such judicial practice as a trend, witness statements may in a relatively short time become the norm in domestic arbitration.
One important aspect of growing use of witness statements in US domestic arbitration is how the written testimony is treated by the arbitral tribunal when the times comes to deliberate and write the award. Arbitrators who are former judges and courtroom litigators, and who sit infrequently or not at all in international cases, instinctively regard the hearing transcript as “the record” that will be re-read with great care. When the witness’s testimony at the hearing begins with a perfunctory attestation to the truth of the written witness statement, and then proceeds immediately to cross-examination, there can be a tendency later on for the written testimony to become submerged and overlooked in the tribunal’s deliberations. It is incumbent on arbitrators to resist this instinct and to re-read written direct testimony (often two statements, initial and reply, for each important witness) during the deliberations period. And it is incumbent upon counsel to re-focus the tribunal’s attention on the written testimony in post-hearing written and oral submissions.
Judge Woodlock in the District of Massachusetts uses a similar procedure in non-jury civil cases.
I question whether these procedures can possibly be consistent with Rule 802 of the Rules of Evidence. I wonder whether any paty has had the gumption to challenge a judge who has adopted such procedures. Nor do I understand the rationale for the procedures, given the availability of summary judgment. If there is a genuine question of material fact to be tried, then the credibility of the witness or affiant is relevant, and I don’t see why the proponent of the testimony should have to present it by affidavit while the opponent has the opportunity for real cross-examination.
None of this is to suggest that parties should not be able to opt out of the ordinary rules of evidence, by agreement, as they generally do when they agree to arbitrate.
The practice of written witness statements as evidence-in-chief is common in England & Wales. Scotland and the Continent of Europe. In my experience, far from becoming inferior to the record, written evidence often forms the core of the material used in deliberation. A curious side effect is that cross-examination, where used, seems often more brief. Perhaps there is scope for exchange of information across the Atlantic Ocean!