§ 15. The Psychology of Counsel

If your decision-makers were jurors rather than lawyers accustomed to sitting as…

The same “principle of charity” approach holds true, in my view, for oral opening…

Since so much of a hearing involves witness examination, a few more words could be…

a. Direct examination of fact witnesses. It does not really exist in arbitration, which is a problem, because witness statements rarely contain compelling narratives. Thus, all the tribunal sees is cross-examination, i.e., an…

b. Cross-examination of fact witnesses. Unless it can be shown that the witness is in fact a liar, a “confrontation cross” does little more than to demonstrate to the tribunal that the advocate is capable of a confrontation. Alternatively, counsel might leave with the tribunal the impression that she has attended a cross-examination seminar, in which propounding a series of closed questions is deemed to be best practice. Instead, I would suggest that most crosses of fact witnesses should aim at arguing through the…