Written witness statements for direct testimony are due: Tuesday of Week 5

Written witness statements for direct testimony are due: Tuesday of Week 5

1. 
   All “direct” witness testimony is to be presented by written witness statement except (1) for 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 statement; or (2) for other good reason with the arbitrator’s approval.
   

… [The written witness statement] procedure—which may be particularly appropriate for expert witnesses, witness­es called to supply factual background, or those needing an interpreter—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.

• Counsel calling any witness will generally spend time preparing the witness to testify anyway, 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 the 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.

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

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:
   

a summary of the witness’s education;

a summary of the witness’s work history for at least the preceding ten years; and

if the witness’s testimony expresses any opinion as an expert, the witness’s C.V. or other evidence supporting the witness’s qualifications; and

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;

an affirmation of the truth of the matters stated in the witness statement;

spaces for the witness’s signature and the date and place of signature; and

spaces for execution by a notary public or other official authorized to administer oaths.

4. 
   Each witness statement is to be served on the arbitrator and all other parties on or before the date specified in the heading of this section 4.6 as otherwise directed by the arbitrator.
   
5. 
   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 a draft of a witness statement, and (2) was neither (A) previously provided to the other party nor (B) provided by the other party.
   
6. 
   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 § 4.6.1.
   
7. 
   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.
   

8. 
   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.
   

9. 
   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.
   

10. 
    The arbitrator will give little or no weight to conclusory assertions or legal arguments in written witness statements.
    

11. 
    If a witness provides a written witness statement and does appear for examination at the hearing, then:
    

1. 
   The witness is to be sworn and to orally adopt his or her written statement; otherwise, the written statement will be disregarded.
   
2. 
   Counsel for the calling party may conduct a brief direct examination in which the witness may summarize his or her written statement.
   
3. 
   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).
   
4. 
   After the oral direct examination, the witness will be subject to oral cross-examination and redirect examination as usual.
   
1. 
   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.
   
1. 
   
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