This will be an occasional series of tips for attorneys appearing in arbitrations. While my arbitration experience comes largely from chairing FINRA panels, most of these comments are relevant to all arbitration proceedings.
For the most part, counsel appearing before panels on which I have sat do a pretty good job presenting their cases. Nevertheless, I am occasionally struck by how lawyers from excellent firms, and with excellent knowledge of the securities laws, have such mediocre witness examination skills. They need to brush up.
The first rule of cross examination should be "do no harm to your own case." Yet, too often we see attorneys losing control of adverse witnesses by failing to use short, leading questions, and to keep the examination limited to important points. What we see instead are (1) long, convoluted questions with multiple parts and premises, (2) unproductive arguing with the witness, (3) open-ended questions that lead to long-winded answers (usually unhelpful to the cross examiner's case), (4) an inability to control the urge to contest every point, no matter how minor, and (5) attempting to make points on cross that are much more easily made on direct. The result is usually negative.
Likewise, direct examinations can sometimes be plodding, disorganized affairs, filled with ponderous questions and legalese. Remember that the purpose of direct examination is to present your client's story in a direct and compelling manner. Arbitrators like to be led through the testimony and exhibits in a simple, direct and organized way.
If your litigation skills are a little rusty, or if you are new to litigation, my advice is to take a CLE course (there are lots of choices), or read up on the subject (James McElhaney has excellent articles on witness examination in past ABA Journals and the ABA Litigation Section journal), or perhaps practice your questions beforehand with an experienced litigator. Whatever you do, your efforts are sure to help you and your client present your case more successfully.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
