April 27, 2015 Articles

Using Detailed Written Witness Statements for Direct Testimony to Streamline Arbitration Hearings

By D. C. Toedt III and Maretta Comfort Toedt

Introduction
In many arbitrations, a lot of time and expense could be saved by having counsel, for most witnesses, present a detailed written witness statement of the witness's direct testimony, followed by the witness's oral summarizing of the high points. The witness then can be cross-examined by opposing counsel and questioned by the arbitrator in the usual manner. (Hostile- or third-party witnesses who refuse to provide a written witness statement can be presented in the traditional way, live or by deposition.)

Increasing Court Use of Written Witness Statements
Written witness statements are routinely and extensively used in international arbitrations. They are also increasingly used in federal-court "bench" trials without a jury, such as the U.S. v. Apple price-fixing litigation; see United States v. Apple, Inc., No. 12 CIV 2826, slip op. at 5–6 & n.2 (S.D.N.Y. July 10, 2013) (Cote, J.).

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