Be Careful What You Wish For: A Vision of Life Without Witness Statements

It has been fashionable in some international arbitration circles of late to bemoan the shortcomings of a staple of the arbitral diet: the written testimonial statement of a fact witness, submitted in advance of the merits hearing and intended to stand as the testimony-in-chief (direct). For arbitrators who thrive on a constant regimen of procedural nourishment, this pot-stirring resonates like an anti-croissants diatribe at a conference of the French bakery association: too flaky, too buttery, too … prévisible! (Francophobes, use your Google Translator!).

Avid readers of the burgeoning literature on this subject, and even workaday arbitrators and advocates, will be familiar with the essential virtues of the witness statement (it brings coherent organization to complex facts, and affords disclosure in advance of the party’s evidence) and with its vices (mainly due mainly to its preparation by counsel, it may be tendentious, prolix, and a crude approximation of “the truth”). Your commentator, while reluctant to expose the hazards of a croissant-free French breakfast, does boldly venture below several observations about the more indigestible attributes of arbitration without witness statements:

1. The advocate’s theory of the case may remain a work in progress at the time of submitting the pre-hearing memorandum of law. This being rather late in the game for a party to have a case in search of a theory, arbitrators at the hearing and post-hearing stage can contribute rather less than they might to a focusing of the parties’ attention on potentially decisive issues. And the advocates in turn have less opportunity to advocate on issues the Arbitral Tribunal genuinely cares about. If theories of claim and defense are modified from the pre-hearing to the post-hearing brief, the Tribunal, except in the unlikely event that counsel will confirm the abandonment of positions earlier articulated, now has a greater number of liability theories and defenses to address in deliberations and in the Award.
2. The advocate, lacking confidence that the direct testimony of two witnesses rather than six will be sufficient and effective, protectively names six on the witness list. Seeing the list of six, opposing counsel protectively expands its own provisional witness list of four into an actual list of eight. The Tribunal now wonders, aloud, how it will hear 14 fact witnesses (plus experts) in a four-day hearing, when there promises to be direct, cross, re-direct, re-cross, Tribunal questions, and follow-up to Tribunal questions, for each witness.
3. Lacking adequate foreknowledge of the adverse party’s witnesses’ testimony, the advocate’s preparation for cross-examination is unfocused. What can most safely be done by the advocate is to prepare to read, on cross, helpful highlights of documents the adverse witness is associated with (followed by the unhelpful question “Did I read that correctly?”).
4. The parties’ lists of witnesses being hedged promises of those they may call and not necessarily those they will call, each side insists on the right to call two of the adverse party’s listed witnesses on its own case. Skirmishes ensue about what the adverse party could possibly want from these witnesses that cannot be adduced from its own employees or in cross-examination, and the Tribunal, having only a vague sense of what any witness might contribute, is reluctant to limit any procedural option for either side. Undesirable outcomes abound — such as witnesses waiting, sequestered, for a testimonial appearance that may not materialize (not to mention the legal costs of preparing the witness for the unknown examination by opposing counsel), or, to avoid such a scenario, a commitment is made by the party that employs the witness that she will be called, and this adds a witness who might otherwise not be needed, in service of control over the timing and presentation.
5. The Claimant having no advance disclosure of what the Respondent’s fact witnesses will actual say in their testimony, seeks to reserve the ability to call new witnesses on a “rebuttal case” as well as the opportunity to re-call witnesses who will have already testified in the Claimant’s case-in-chief. The parties are unlikely to have anticipated this hearing-lengthening prospect at the time the hearing schedule was fixed, and the potential necessity to add hearing days for the rebuttal case, after a lengthy hiatus, may loom as the first hearing dates approach.

These are serious disadvantages to proceeding without written witness statements in a complex international arbitration. It is desirable that arbitrators and advocates should become familiar with them so that decisions on witness procedure made at the early stages of the case will be well-informed, and will neither opt in favor of written witness statements merely because their use is customary nor opt against them merely because the backlash against custom has come into fashion.