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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

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.).

The use of written witness statements for direct testimony is the very first suggestion in the Federal Judicial Center's Manual for Complex Litigation, fourth edition (MCL) for non-jury trials, which observes that

… [the witness-statement] procedure … has several advantages. The proponent can ensure that it has made a clear and complete record; the judge and opposing counsel, having read the statement, are better able to understand and evaluate the witness's testimony; opposing counsel can prepare for more effective cross-examination; and the reduction in live testimony saves time.

MCL 12.51. See generally John Anthony Wolf and Kelly M. Preteroti, Written Witness Statements—A Practical Bridge of the Cultural Divide, in Disp. Res. J., May–July 2007.

Advantages of Written Witness Statements
The written-witness-statement procedure is becoming popular because it can

significantly reduce the time needed for witness testimony at the hearing;
• ensure that all desired facts are included in the direct testimony;
• reduce the stress on witnesses (and on counsel too), in part by reducing the need for advance preparation directed to the witness's "stage performance";
• reduce the chances of awkward moments on the witness stand; and
• eliminate much of the need for pre-hearing discovery depositions (which would also contribute to reducing the need for stage-performance witness prep).

Overcoming Counsel Reluctance
Despite the increasing use of written witness statements, some lawyers might be reluctant to provide opposing counsel with such statements for their own witnesses. These lawyers likely would fear that

• preparation of the witness statements might entail extra expense for the client; or
• the statements might be a gift-wrapped road map for opposing counsel to use in planning their cross-examination.

Neither of these fears should be an overriding consideration:

• Counsel calling any witness will always spend time preparing the witness to testify, in deposition and at the hearing. Whether the testimony is expected to be long or short, the extra expense of reducing the planned testimony to writing is likely to be minimal—and with the added benefit of guaranteeing that the witness won't botch critical points of direct testimony on the stand (which should also help to reduce any witness anxiety about testifying).
• Costs will be further reduced by the fact that a number of depositions likely wouldn't even be requested if opposing counsel were assured that there'd be no surprises when the witness testified "on direct"; a written witness statement setting forth the direct testimony would provide just such assurance.
• In the absence of a written witness statement, opposing counsel likely will argue strenuously that the witness should be deposed before testifying at the hearing. That not only would increase the expense for all concerned, it would create a risk for the presenting party that the deposition questioning would lead to opposing counsel getting even more ammunition for possible use in cross-examination at the hearing. While this might be beneficial for the arbitration proceeding as a whole, the presenting party's counsel might not be happy about it.

Model Scheduling—Order Provisions for Written Witness Statements
A proposed set of model provisions for a scheduling order are set out below (adapted from a longer scheduling order and hearing plan being developed by the authors). Much of the text of these provisions is adapted from AAA Commercial Rule R-35 and MCL 12.51; AAA Employment Rule 8(o) also contemplates testimony by affidavit. Comments and suggestions are welcome.

1. Pursuant to the arbitrator's authority under AAA Commercial Rule R‑35(a), all "direct" witness testimony is to be presented by written witness statement, except for the following.

COMMENT: Written testimony is expressly provided for by AAA Commercial Rule R‑35(a) and is clearly contemplated by AAA Employment Rule 8(o) (testimony by affidavit), as well as in other providers' arbitration rules, and are a staple of international arbitration and of federal-court bench trials.

(a) A witness may orally "recap" key points of the witness's written testimony.

COMMENT: It can be helpful to the arbitrator's understanding of a witness's written testimony for the witness to "guide" the arbitrator through the written statement. The witness's doing so can also help to get the witness comfortable "on the stand" in preparation for cross-examination.

(b) No written statement is required of any witness, not employed by or otherwise under the control of the party presenting the witness's testimony, who states on the record that he or she refused to provide such a written witness statement.

(c) A witness may testify "live" on direct examination for other good reason with the arbitrator's approval.

2. Each version of a witness statement provided to another party is to be numbered as a separate exhibit.

COMMENT: MCL 12.51 calls for written witness statements to be marked as exhibits. Giving separate exhibit numbers to different drafts of a witness statement can help keep the drafts straight if differences between the drafts become relevant.

3. Each witness statement is to include the following, in short, separate, paragraphs; each paragraph is to be numbered except those containing spaces for signatures and notarization:

(1) the full name and address of the witness;

(2) a summary of the witness's education;

(3) a summary of the witness's work history for at least the preceding ten years; and

(4) if the witness's testimony expresses any opinion as an expert, the witness's C.V. or other evidence supporting the witness's qualifications;

(5) a detailed statement of all the facts to which the witness would testify "on direct" if testifying orally at the hearing, including facts sufficient for foundation;

(6) an oath (or an affirmation, or a declaration under penalty of perjury) of the truth of the matters stated in the witness statement;

(7) spaces for the witness's signature and the date and place of signature and

(8) if required by this Hearing Plan or by the law of the place where the witness signs the statement, a space for a notary certificate.

COMMENT: Some of the provisions above are modeled on Article 4.5 of the International Bar Association Rules on the Taking of Evidence in International Arbitration (2010) (IBA Rules).

4. Only the final draft of a witness statement need be signed.

5. Each witness statement is to be served on the arbitrator and all other parties as provided in this Hearing Plan.

6. Each party is to serve the other with a copy, marked as an exhibit, of any document or other evidence that (1) is referenced in any version of a witness statement, and (2) was neither (A) previously provided to the other party nor (B) provided by the other party.

7. If a party calling a witness to testify does not timely provide a written witness statement for that witness, then the witness will not be allowed to testify except (1) by agreement; (2) for impeachment or rebuttal purposes; or (3) as provided in [paragraph 1].

8. Per AAA Commercial Rule R‑35(a), if a party submits a written witness statement for a witness, any party may designate the witness as being required to appear at the hearing. The designating party is to notify the arbitrator and all other parties of its designation no later than ten business days before the start of the hearing, otherwise, the party will be deemed to have waived its right to make the designation as to that witness.

9. A party's failure to designate a witness as being required to appear at the hearing is not a stipulation to the truth or admissibility of any part of the witness's written statement.

COMMENT: This provision is modeled on Article 4.8 of the IBA Rules.

10. Per AAA Commercial Rule R‑35(a), if a witness does not appear at the hearing after being notified to do so, then the arbitrator may disregard the written witness statement or make such other order as the arbitrator may consider to be just and reasonable.

11. The arbitrator will give little or no weight to conclusory assertions or legal arguments in written witness statements.

12. If a witness provides a written witness statement and does appear for examination at the hearing, then he or she can expect the following.

COMMENT: The procedure of this section largely tracks that of MCL 12.51.

(a) The witness is to be sworn and to orally adopt his or her written statement; otherwise, the written statement will be disregarded.

(b) Counsel for the calling party may (but need not) conduct a brief direct examination in which the witness summarizes key points of his or her written statement.

(c) The direct examination must be substantially limited to the matters stated in the witness's written statement (this will not preclude the calling party's questioning the witness for purposes of rebuttal or impeachment of another witness).

(d) After the oral direct examination, the witness will be subject to oral cross-examination, redirect examination, and questioning by the arbitrator.

13. The written statement of a witness who is not designated as being required to appear at the hearing must be sworn by the witness in the same manner as required by law for an affidavit (or, if permitted by applicable law, signed under penalty of perjury), otherwise the arbitrator will not consider the statement.

Keywords: alternative dispute resolution, litigation, written statements, witness statement, direct testimony, arbitration hearing