2006/Vol. 5 No.1 - Hamline Law - Hamline University

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52 THE JOURNAL OF AMERICAN ARBITRATION [Vol. 5:1 G. Swearing the Witnesses It is traditional for witnesses to take an oath promising they will tell the truth, the whole truth and nothing but the truth. Rule 27 of the American Arbitration Association Rules of Commercial Arbitration states, “[t]he arbitrator may require witnesses to testify under oath administered by any duly qualified person and, if it is required by law or requested by any party, shall do so.” 207 The Uniform Arbitration Act gives arbitrators in the states authority to administer such oaths. 208 The witness is asked to swear or affirm under the penalty of perjury that what he or she says is true. If a witness lies, the arbitrator does not have the authority to prosecute the witness, but the arbitrator can present the evidence to the prosecuting authorities if the arbitrator thinks the witness has perjured himself. 209 H. Out of Sequence Witnesses It is not uncommon in arbitration hearings for the advocates to call witnesses as they wish for the sake of convenience. Arbitration is much more flexible than a trial, so it is common to permit out of sequence witnesses to testify with the arbitrator’s approval. Sometimes a witness is only available at a certain time. So, for example, even though the claimant has not put in his or her case-in-chief through all his witnesses, the respondent may ask to call a witness because it is the only time the witness is available. I. Direct Examination Whoever carries the burden of proof calls the first witness. The 207. AAA Rules, supra note 37, R-25. 208. UNIFORM ARBITRATION ACT § 17(a), as amended 2000, 7 U.L.A. 36 (Supp. 2004). 209. Brian N. Smiley, The Law and Ethics of Witness Preparation, in SECURITIES ARBITRATION 1998, at 659, 669-70 (PLI Corporate Law Practice, Course Handbook Series No. B0-001K, 1998) (recognizing that “[a]rbitrations are not considered federal proceedings under the federal perjury statutes. Nonetheless, since testimony is taken under oath, arbitration testimony may be covered by state perjury statutes, and false evidence in arbitrations can result in prosecution under other federal acts”); see United States v. Coyle, No. 1S 93 Cr. 68 (SS), 1993 WL 378332, at *1 (S.D.N.Y. Sept. 17, 1993) (unreported case) (involving a case charging defendant “with engaging in a conspiracy to deprive [plaintiff] of her right to recover moneys . . . in the course of her arbitration proceeding through the use of a forged document and perjurious testimony”).
2006] ARBITRATION: THE BASICS 53 witness is sworn and asked a series of questions. Direct examination questions are usually wide open questions starting with “who,” “what,” “when,” “where,” “how,” and “why.” For example: “Where were you?” “What happened that day?” “Why did you file for arbitration?” The focus is on the witness during direct exam. The focus should not be on the advocate who is asking the short questions. The witness should be making the music. The advocate is simply asking the questions so the evidence can come in through the witness. The objective is for the witness to explain on direct examination through questions what happened. The advocate is the conductor but the witness is the musician. J. Use of Visuals “Ours is the age of visual media.” 210 Social science research supports the shift from auditory to visual in learning and retention. 211 “Show and tell” also works with arbitrators. In every arbitration, there are one or two critical exhibits: language from the contract, a location, and a physical object. The exhibit can become the center of attention. Diagrams, models, maps, drawings and demonstrations by witnesses, computer-generated graphics and three dimensional simulations can be worth a thousand words. They can be powerful. “[S]tudies confirm that if information is presented through multiple ‘channels’—aural, written, and visual—understanding and memory are again substantially improved. In short, visual exhibits are important not only in presenting new information in an attractive, memorable way, but also in highlighting and summarizing information already presented through another medium.” 212 K. Cross Examination Once the witness has finished on direct examination, the opposing advocate has an opportunity to cross examine the witness. Crossexamination “is the greatest engine ever invented for the discovery of truth,” proclaims Professor Irving Younger. 213 Cross-examination is designed to elicit information from the witness which supports the theory of your case; and to attack and weaken the other party’s case and the 210. MAUET, supra note 198, at 167. 211. Id. 212. Id. 213. IRVING R. YOUNGER, AN IRREVERENT INTRODUCTION TO HEARSAY 2 (ABA 1977).
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2006/Vol. 5 No.1 - Hamline Law - Hamline University

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