Direct testimony is mainly by written witness statement

Direct testimony is mainly by written witness statement

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  On the stand, each witness adopts and orally recaps the high points of his or her written testimony.
  
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  The witness then can be questioned by opposing counsel and the arbitrator.
  
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  Hostile- or third-party witnesses who refuse to provide a written witness statement can be presented in the traditional way, live or by deposition.
  

The written-witness-statement procedure is becoming popular because it can:

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  significantly reduce the time needed for witness testimony at the hearing;
  
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  ensure that all desired facts are included in the testimony;
  
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  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”;
  
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  reduce the chances of awkward moments on the witness stand;
  
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  eliminate much of the need for depositions, which would also contribute to reducing the need for stage-performance witness prep.
  

… [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-June 2007, available at http://goo.gl/LoYAuB (Ober.com, accessed Dec. 15, 2014).

Despite the increasing use of written witness statements, some lawyers might bristle at being directed to provide opposing counsel with such statements for their own witnesses. These lawyers likely would fear that preparation of the witness statements would entail extra expense for the client, and that the statements would 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, because:

• It’s an expensive luxury for lawyers to play hide-the-ball in the (often-futile) hope of catching their opponents off guard at the hearing.

• 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).

• Written witness statements should reduce costs even further because some 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 statement setting forth the entirety of the witness’s direct testimony would provide just such assurance.

• A written witness statements will often be less risky for the presenting party than exposing the witness to a deposition by opposing counsel, whose questions might be more far-ranging than the written statement’s direct testimony.

3. Mini-trial conference call with senior management
   after initial written disclosures

4. Discovery is carefully managed

• Requests for production of documents (that were not provided in the Chronology drafting process) are permitted by agreement or with advance approval by the arbitrator, to keep costs down. Quick responses to requests for production are mandated to help keep the process moving.

• Parties may conduct informal, voluntary telephonic, 30-minute interviews of adverse-party personnel to help identify points that could be stipulated as well as documents of interest. Such interviews can optionally utilize (1) written questions for more-effective use of time, as well as (2) “conference” interviews of multiple individuals at once. Interviewing an individual does not preclude the interviewer from later deposing the individual.

• Depositions are allowed on a case-by-case basis for good reason with arbitrator approval.

• Telephone interviews and depositions may (and preferably will) utilize at least some written questions, propounded in advance, to reduce the time required.

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