Thursday, January 15, 2015

Witness Conferencing


General Pros and Cons

·         Advantages:

  • Witness conferencing may be regarded as a potentially useful way for an arbitral tribunal to assess the truth as between two conflicting versions of factual events
  • Prevents repetition and thus saves time and costs
  • The creation of a less adversarial environment than the traditional procedure. The panel aims to have the feel of a roundtable discussion between colleagues
  • A greater capacity for witnesses to explore and fully understand the issues about which they are expressing an opinion, by questioning and interacting with other experts

·         Disadvantages:

  • factual witness evidence is based in large part on subjective recollections and views on events which occurred
  • The recollections of one witness may be influenced, even unintentionally, by hearing the evidence of other witnesses
  • Instead of coming to point of common agreement, which likely to happen in expert witness conferencing, the fact witnesses, particularly when they are the parties or parties' employees, are likely to remain opposed

Purpose and Use of Witness Conferencing

·         Witness conferencing may be a very useful tool for the arbitral tribunal to form an opinion if there are conflicting testimonies regarding the same issue

·         So called “witness confrontation” or “witness confrerencing” or "hot-tubbing" is the procedure during which two or more witnesses will be heard at the same time an in confrontation with each other

·         Witness conferencing take form of not a ‘witness-by-witness' hearing, but a team-versus-team hearing

·         The putting together of opposing experts (hot tubbing) as if the experts were sitting together in a hot tub scrubbing each other's back— and apparently this practice has first been introduced in Australian courts. However, today it has become a common feature in many arbitrations with extensive expert evidence, such as for instance construction arbitrations

·         In complex cases it may also be practical to examine all witnesses for each set of issues, the either in succession or together, what is known as witness conferencing or other forms of joint examination

 

·         Conferencing of factual witnesses could be particularly beneficial for instance in construction disputes, or in failed joint-venture or partnership arrangements, where the commercial documentation is inadequate /ambiguous, and where the true intent of the parties are to be established from a number of pre and post-contractual meetings

 

Hot-tubbing is becoming more common in English engineering and construction arbitration, particularly where the tribunal is made up of engineering or construction specialists who have an independent understanding of the expert issues and are capable of handling an inquisitorial approach

 

Rules on Witness Examination Techniques

·         No generally accepted rules exist for the conduct of the witness examination. Therefore, the arbitral tribunal should agree with the parties on the method

·         As the procedure of witness conferencing is relatively novel and there are obviously different ways of approaching it, the tribunal must set clear guidelines to ensure both counsel and the witnesses understand how the process is to work

·         The IBA Rules on Evidence 2010 provide that, by party agreement or upon the order of the tribunal, this conference (referred to in some sources as ‘confrontation’) should occur as part of the examination of the witnesses before the tribunal:

"The Arbitral Tribunal, upon request of a Party or on its own motion, may vary this order of proceeding, including the arrangement of testimony by particular issues or in such a manner that witnesses be questioned at the same time and in confrontation with each other." (Witness conferencing) (Article 8. 3 (f) of 2010 IBA Rules, similar provision found in Article 8.2 of 1999 IBA Rules on Evidence)

 

Expert Witness v. Fact Witness Conferencing

·         Witness conferencing is considered to be more efficient and practical with expert witnesses, rather than with fact witnesses

·         A typical application of this procedure for expert witnesses is to provide their written or oral testimony separately and then appear jointly for further questioning, to ensure that each witness can respond to allegations of the other witnesses

·         A special form of expert witness confrerencing is to have the experts meet in advance of a hearing (so called “pre-trial expert conferencing”): The parties' experts are ordered  to create a joint report on the technical facts

·         At fact-witness confrerencing opposing witnesses are typically questioned side-by-side on particular topics. This serves to narrow down conflicting testimonies and may save considerable time by avoiding repetition

 

Procedure for Witness Conferencing

 

·         The witness conferencing is lead, co-ordinated and controlled by the tribunal. The tribunal may ask questions to one witness, then may ask others to comment on the first witness' answers, or to answer the questions themselves.

·         Then the party representatives, usually Claimant, will have an opportunity to ask further questions on the same issue, followed by other party (Respondent).

·         At the end, the witnesses may be asked whether anybody wishes to provide further comment

·         This way, the procedure allows concentrating on one subject at a time

 

Tribunal's Role in Witness Conferencing

·         As witness conferencing is a relatively new development, there may be the risk of chaos if the procedure is not well controlled.

·         Provided that the tribunal is well-prepared for effective questioning and to avoid chaos, this technique may lead the experts and thereby the parties to further agreement on issues that initially may have seemed impossible to agree

·         There is a risk with conferencing between experts that the tribunal might assume that the two experts are of equal standing and tribunal may be lost in the technical expert witness debate.

·         The Tribunal shall not assume that somebody who may be very good at speaking and expressing an opinion necessarily has the depth of knowledge and expertise of the other person, who might not be quite as good at speaking and expressing his opinion

·         However, pre-hearing "hot tubbing" resulting in a joint expert report remains by far the most efficient solution. The "Experts' Facilitator" may make it possible.

 

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