§ 13. Discussion

Leslie Ellis - So I would probably try default, to know witness statement is possible but as you said, sometimes it might be necessary but that in those instances the direct examination would be a subset of what is in the witness statement and what you think is really critical. And try to keep it as surgical and tight as possible. And in terms of time I think that would be the answer, right? If you keep it to the absolute necessary, what do you want this witness to get on the record, then it very well may increase time, but not a lot. Particularly if you have a witness statement where it is necessary. But in so many different aspects of arbitrations and trials, there is always this difficulty between efficiency but what is the better process? What’s better the better system versus what’s more efficient for the arbitrators or the court and the parties. And those are not always the same thing. And trying to get, as you said, the tribunals or arbitrators to agree that something that takes more time is actually the better outcome, is very difficult to do. I think programs like the panel that Ragnar’s on

Ragnar Harbst - Maybe just one more remark about this task force, one of the…

Participant I - I have a general question for you. Most of the time, the most…

Leslie Ellis - I would say you stop when the witness starts to sound like a robot. I mean that’s kind of the obvious answer but one of the biggest and easiest mistakes to make in preparing the witness is when you are able to get into their testimony, which I know is not always the case. But in international arbitrations where you can get into the testimony one of the biggest mistakes is to write your questions down and give them to your witness. A lot of witnesses want it and they ask for it but that is when they start memorizing the questions and memorizing the answers. And witnesses have to take responsibility and ownership of their own testi-

Leslie Ellis - And if your witness sounds unlikeable and a jerk, what you need to do is to figure out how to make your unlikeable, jerky witness part of your case, right? Like, how can you craft that witness’s role or that witness’s job or what they were doing. How do you incorporate their unlikability or their jerkiness into your case? Just a really quick example:

Ragnar Harbst – Very good question and very important point. First, it’s not the commission really, it’s my personal view; you won’t see it in the report. But I think the difference is in terms of persuasiveness. The difference between the written statement and the live testimony is that, “this human being was there when things actually happened” and gives you a live account. It is more vivid, therefore it is more persuasive,

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