By: Elías Arriaza
It is possible that the story told by the plaintiff in its claim is in direct contradiction with the version of the facts asserted by the defendant. In such cases, the Arbitral Tribunal will have a special interest in the evidence provided in order to discover the truth, i.e., what really happened.
For this purpose, documents such as letters, e-mails and even messages sent through an APP will be an important piece of evidence, since they contain the collection of what was communicated between the parties. However, not all facts are captured in a document, or it may be necessary to explain, emphasize or expand its content. For this purpose, witnesses will be very useful, since they allow the arbitrators to be in close contact with those who participated in the matter.
However, it will be up to the parties and their counsel to decide when it is convenient to propose each of the persons involved as witnesses or when it is better to dispense with their testimony. Here are some ideas for making this important decision.
- It must have a purpose.
It seems obvious, but the first rule to be used to determine whether a witness’s testimony will add value in the arbitration is to establish whether the witness can shed light on any of the points at issue. That point will be the focus of the entire cross-examination; in other words, the testimony will have served its purpose only if it has succeeded in conveying to the arbitrator’s valuable information on that particular issue.
It is appropriate to consider that not all persons involved meet this requirement. It is possible that an individual may have participated, but in a circumstantial or indirect manner, and therefore his or her testimony does not add to the strategy of the case.
- The witness must convey credibility.
The witness should testify confidently, naturally and with appropriate body language.
A witness who is nervous, confrontational, and contradictory causes uncertainty in the arbitrators as to the veracity of the testimony and even the good faith with which the parties must conduct themselves in the arbitration.
Interviews with potential witnesses prior to the arbitration will help to determine whether such difficulties can be overcome or whether it would be better to dispense with the testimony.
- Avoid surprises by preparing the examination and cross-examination.
Good legal briefs are clear, complete and convincing. It is desirable to move away from tedious, confusing writing that requires reading each paragraph more than once to try to unravel its meaning.
The same applies to testimony. The preparation of the interrogations will allow us to have a common thread during the hearing, in addition, it will be an excellent opportunity to anticipate answers that merit reevaluating strategies within the process.
It is probably a matter of style, but answers that are too long or witnesses who ramble tend to lose the attention of the referees and diminish the opportunity to get the central message across.
To complete the preparation, it is important to keep in mind that if we omit to rehearse the cross-examination, we will be halfway there. The cross-examination is the questions that our witness will be asked by the opposing party, so it will be a valuable test to know how the witness will behave when under pressure.
- Make a final reflection.
The last step consists of pausing to examine all the aspects mentioned above and others dictated by experience, to decide whether or not the witness will be proposed. It can be frustrating after so much work to leave the witness out, but we must remember that the final objective is not his or her testimony, but to convey the facts clearly to the court.
At this point, it is opportune to take into account that the balance should be tipped at 80%, or even more, in terms of the value added by the testimony versus the aspects that may create some uncertainty in the arbitrators.
It is important to emphasize that all this preparation is not intended to disguise the truth or influence the testimony of the witnesses, but to ensure that the case will be presented in the best possible way to obtain an objective and fair resolution.