International arbitrations typically involve the interaction of witnesses, attorneys and arbitrators from different countries and legal systems. Arbitration hearings do not take place in a courthouse with its accompanying support staff and facilities, and they are often held in countries where the attorneys may not have offices. Because of these factors, international arbitration hearings often require preparations in addition to those required in domestic court trials. These preparations may be critical to the smooth functioning of the hearing, and even to the outcome of the case.
- Obtain the necessary travel documents.
As early as possible before the hearing, ensure that any potential witnesses and local counsel have the passports and visas necessary to travel to the country where the arbitration will be held. The State Department’s website, http://www.state.gov is useful for determining what is necessary for travel to the United States. Have a member of your staff book hotel reservations and organize transportation for witnesses who have not traveled to the country where the arbitration will be held.
- Hire translators.
Because witnesses are often from several different countries, they may not speak the language in which the arbitration is being conducted well enough to testify in that language. Testifying before any court or tribunal can be daunting for any witness, and testifying through a translator is particularly difficult. Therefore, to prepare a witness for the hearing, it is extremely beneficial to conduct mock examinations with a translator who provides virtually simultaneous, literal translations that mimic hearing conditions as closely as possible.
- Prepare the witness’s materials.
Before meeting with a witness, familiarize the witness with all of the relevant documents, including the witness’s declarations in the case, excerpts from the parties’ written submissions to which the witness may be asked to testify, all of the documents cited in the witness’s declarations, as well as any other documents in the record in which the witness is mentioned.
- Familiarize the witness with the setting.
Explain to the witness how the hearing room will be laid out, whether there will be simultaneous translations (and, if so, that he or she will be testifying while wearing earphones), and that there might be direct and cross-examinations as well as questions from the tribunal.
- Familiarize the witness with the arbitration process.
Most non-expert witnesses have never testified before. To help a witness relax and understand what will be happening, explain to the witness what the hearing is about, and why he or she is being asked to testify. You likely will have had this conversation with the witness during preparation of the witness’s declaration, but because several months may have passed since that time, and to make the witness feel comfortable, it is useful to reiterate the point. As you do this, explain to the witness what direct and cross-examinations are, and the style and manner in which they will be conducted. This is particularly important when a witness is from a civil law country where cross-examination is uncommon.
- Conduct mock direct and cross examinations.
The level of witness preparation will depend on the importance of the witness to the case, as well as the witness’s familiarity with the relevant documents and memory of the events. The attorney who will be conducting the direct examination at the hearing should conduct several mock direct examinations with the witness. This allows the attorney to ascertain which types of questions elicit the most precise responses from the witness. On the other hand, mock cross-examinations are often more effective if conducted by another attorney, in a manner that closely replicates the language and tone that the witness will e ncounter at the hearing.
- Have a document management plan in place well before the start of the hearing.
And then make sure that all the attorneys on the case are familiar with it. Even though every attorney has his or her own style of argument and questioning, all of the attorneys will be working from the same set of documents. Maintain from the outset a simple, logical document numbering system and a filing system that allows ready access to any document in the record.
- Practice with your technology.
If you will be using fixed presentation software such as PowerPoint, or litigation-specific software to make a presentation, make sure that the individuals who will be at the keyboard during the hearing are part of the preparations for witness examinations and oral arguments. Your paralegal might have experience operating the software, but he or she also needs to have familiarity with the key documents in the case and the attorney’s style in order to be flexible and responsive if the attorney suddenly must follow an unexpected line of questioning, or alter an oral argument.
- Direct your staff to set up your breakout room.
Each of the parties in an arbitration typically has a “breakout room” that is available a day or two prior to the hearing. If it is large enough, this is a space where attorneys and witnesses will go during breaks. If possible, have available in the breakout room a computer, phone, and copier, fax, printer, and scanner so that documents may be copied and handed out at the last minute.
- Consider your (physical) strategic position.
Depending on the location and style of the hearing, the room may be set up like a courtroom, or something more informal. You might also have the opportunity to determine, with opposing counsel, how the room will be set up. If this is the case, consider how many people you will have in the hearing room, including whether all of your witnesses will be present throughout the entire hearing, whether additional space such as bookshelves is necessary for your documents, and how many microphones you will need for counsel. When organizing the room, consider whether opposing counsel will be required to walk past you as they enter and exit the hearing room, and your proximity to your breakout room.
- Have someone preempt technical difficulties.
Check out the room the day before the hearing begins. Test the sound system and the projector. If transcription software is being used for real-time transcripts, work with the transcriber to ensure the feed is working properly. Ensure that the Tribunal and both parties and their counsel are facing the screen and can easily view the presentations.
- Assist the translators.
At least one day before the hearing, and after obtaining agreement from opposing counsel, provide the hearing translators with a list of witness’s and attorneys’ names, with pronunciations. Additionally, give the translators the translations of technical terms, legal terms, and terms of art that will likely be used during the hearing. If the translation of a particular word or phrase is at issue in the case, discuss with opposing counsel how the translators should translate it during a witness’s testimony. It is helpful if the translations are listed alphabetically in each of the languages being used.
- Do not forget about the late nights.
Long hours are inevitable during a hearing. If the hearing is being held in a location where your firm or agency does not have an office, make sure that the hotel or other facility where your team will be working in the evenings meets your needs. Attorneys and legal assistants should have access to sufficient office supplies, as well as a quick, reliable overnight copy service. It can also be critical to have an attorney or legal assistant on call at your office to handle emergencies. If the hearing is in another time zone, this individual might have to work night shifts, so confirm his or her avail ability in advance.
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About the Author
Ms. Van Slooten is an Attorney-Advise with the United States Department of State, Office of the Legal Adviser. The views expressed are those of the author and not necessarily those of the Department of State or the United States Government.
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