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Witness Examination

Monday, June 22, 2026 9:55 AM | Anonymous

Arbitration process guide for new lawyers

Should arbitrators intervene more actively during witness examinations?  If yes, when should the arbitrator intervene?

What are your thoughts? 


Comments

  • Monday, June 22, 2026 12:46 PM | Robert L. Arrington
    It depends on the circumstances. Generally, I try not to interrupt the questioning by the parties or their counsel but save my questions for after the parties have finished direct, cross, and redirect examination. I also try to ask my questions in a manner designed to clarify rather than to suggest.
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    • Monday, June 22, 2026 12:57 PM | Gary Javore
      When the dead horse has been thoroughly beaten, I will provide the witness's last response in answer to the question and request that the attorney move along. I will also intervene if an attorney is extensively leading his/her own witness and remind him/her that I want to hear the testimony of the witness, not counsel.
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    • Monday, June 22, 2026 1:01 PM | Stuart Shanus
      100% agree. The goal is get to the right result and lawyers try to anticipate what the arbitrator needs to make a decision. But, sometimes they "miss the mark". Affter listening to everything the witness has to say , asking clarifying questions should serve everyone's interests
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      • Tuesday, June 23, 2026 12:38 PM | Carol Davis Zucker
        Totally agree, that is one reason I will ask questions. It has amazed me how often a party does not ask a critical question. It happens more now.
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  • Monday, June 22, 2026 1:07 PM | Kevin Sido
    I think the arbitrator should ask substantive questions only after direct and cross. Of course, if the arbitrator didn't hear the answer or has a really simple point, ask away. But I think arbitrators risk looking like they are pursuing an agenda if they jump in too quickly, especially with questions of substantive significance.
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  • Monday, June 22, 2026 1:26 PM | Tim Austin, PE
    I often ask questions at the end of direct and cross. Generally, the questions are related to the more technical or industry practice aspects of the case.
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  • Monday, June 22, 2026 1:30 PM | Clifford B Donn
    This is a difficult question to answer given the phrasing. Should arbitrators intervene more actively than what? Should they intervene at all?
    I agree with those above who have indicated that arbitrators should usually reserve their questions until direct and cross-examinations are complete. I usually try to do that and often one of the advocates will ask the question I was going to ask anyway making my intervention unnecessary. I agree that questions asked by the arbitrator should usually be designed for clarification.
    I do sometimes intervene during direct or cross-examination when it seems clear after several tries that the advocate and the witness don't understand each other.
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  • Monday, June 22, 2026 1:42 PM | Michael Orfield
    This is a very sensitive moment when the Arbitrator takes over questioning. I respectively suggest that it never happen unless:
    The Arbitrator seeks permission from the attorneys to ask a few questions.
    Or, better yet, the Arbitrator lets the attorneys know of questions that the Arbitrator has and requests they go into that area.
    The appearance of impropriety is as bad as impropriety itself. The arbitrator should take great lengths to remain neutral in all aspects of the hearing
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  • Monday, June 22, 2026 2:07 PM | Michael Saydah
    I generally avoid asking questions because I do not want to appear biased toward either party. If an advocate is very inexperienced, I may offer limited guidance when necessary. Otherwise, I expect advocates to present their cases effectively. Given that they are billing—or will seek lodestar rates—between $500 and $750 per hour, they should be capable of asking proper questions and proving the elements of their claims or defenses. If they cannot, they must accept the consequences.
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  • Monday, June 22, 2026 2:23 PM | Robert A, Creo
    My practice has zig-zagged since my first hearing in 1980. For the past few decades, I only intervene for a clarification and perhaps a follow-up question or two to make the record clear. If there is an obvious gap and both parties are leaving it alone, I occassionally have asked for a side-bar with the advocates to ask if either one of them intend to explore tha omission. If they say, yes, I explore if they want to disucss it between them, enter a stipulation, or just go back on the record.
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  • Monday, June 22, 2026 2:37 PM | Anonymous
    I agree with Mr. Arrington et al. that we should wait until the end, except perhaps for a quick clarifying question if an answer is ambiguous. Often the questions I have during the direct will be posed during cross or redirect so best for me not to interfere with counsel's work.
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  • Monday, June 22, 2026 2:42 PM | Rick Flake
    i've had the pleasure of teaching the AAA's new arbitrator course for close to 30 years. When the issue of arbitrator questioning comes up, I say there are two philosophical camps. The first is that as ultimate triers of fact if we are not getting the infomation we need, asking questions to get that information is more than appropriate. The second camp is that it is not our case to try, it is the parties' and counsels' case. If they are not doing a good job, not meeting their burden of proof or pursuasivley making their defense, that is on them, and it is not my job to do that for them. There is nothing intrinsically wrong with being in either camp. In my own practice, especially with good counsel involved, I have gravitated to not asking that many questions, and only ask when I thnk it it vitally important. If an arbitrator is prone to asking questions, it should be done in the most neutral manner possible so a not to imbalance whatever the playing field is between the sides. Telegraphing issues to one side with questioning, even inadvertently, could be viewed as hurting the other side's case.
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  • Monday, June 22, 2026 3:00 PM | Georges Affaki
    I agree with what has been said above: tribunal questions are best reserved until the conclusion of re-direct examination.
    There are, however, exceptional circumstances in which intervention during examination may be appropriate.
    One is where repeated objections or exchanges between counsel begin to impede the progress of the examination. In such cases, the tribunal may need to restore order, remind participants of the applicable procedural framework, and ensure that the examination remains efficient and fair.
    Another is where a witness becomes visibly distressed or exhausted, particularly after an intense cross-examination. The tribunal bears ultimate responsibility for the integrity of the proceedings and may properly intervene to ensure that the witness remains capable of giving reliable evidence.
    A further example arises when counsel encounters a persistently evasive or non-responsive witness and seeks the tribunal's assistance. A question from the tribunal will sometimes elicit an answer that repeated questioning by counsel has failed to obtain. Such intervention should nevertheless be exercised with caution.
    Finally, limited intervention may be justified to resolve genuine misunderstandings, ambiguities, or translation difficulties that are obstructing effective communication.
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    • Monday, June 22, 2026 3:15 PM | Alain Frecon
      The job of the arbitrator is to listen intensely to the parties’ arguments and to only ask question(s) to clarify his or her understanding of the argument(s) presented.
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  • Monday, June 22, 2026 4:32 PM | Stanley Santire
    I am very hesitant to interrupt an examination yet there are occasions. One of course is when it get repetitive. Another is when it becomes very irrelevant although I hope opposing counsel objects. In very rare occasion is if it veers into rudeness.
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  • Monday, June 22, 2026 5:43 PM | Dustin Hecker
    I will break in if I do not understand something or cannot, for example, find where in a document information a witness is discussing can be found. Occasionally I will make clear I understand the testimony and that counsel should move on. Otherwise, I wait until the end of all of the attorneys examinations to ask my substantive questions. I have no problem asking questions about things that I find important. Sometimes, the witnesses and counsel are able to show me whatever I was concerned about is not an issue. But oftentimes it is something they really have not considered as carefully as they should have.
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  • Monday, June 22, 2026 9:42 PM | Thomas Levak
    I never — never— intervene unless there’s an answer I don’t understand and need clarification.
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  • Monday, June 22, 2026 11:26 PM | Robert H Flynn
    Clarification is the most common reason to ask questions and fleshing out ambiguous testimony seems the most common clarification reason.
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  • Tuesday, June 23, 2026 10:27 AM | Edwin H. Stern
    I ask questions to make sure I understand an answer at the end of a relevant line. Otherwise, I may ask questions after direct and cross are over if I think critical facts need answers or development. However, I direct witnesses not to answer until counsel have a chance to object in case there is some privilege or valid objection to the question or subject I raise. While I believe the attorneys are the ones to present their respective cases, I also believe I have an obligation to make findings based on all the relevant facts. Finally, when I finish with anything I may ask, I provide counsel (or the pro Se in a consumer case) to re-examine the witness.
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  • Tuesday, June 23, 2026 12:43 PM | Carol Davis Zucker
    I prefer to ask no questions. Only for clarification or with a difficult witness will I ask anything, and then only after the parties have finished direct and cross. On a panel, I usually ask nothing and let others do it.
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    • Tuesday, June 23, 2026 1:49 PM | Leslie W. Langbein
      I tend to be an active listener and referee. What the latter means is that I will jump in to ask questions when: 1) the witness is vague and has not clearly stated what he/she heard, saw or said; 2) when the advocate has not clearly communicated a question to the witness and the other side objects (and therefore I try to re-state the question in more understandable terms at which time I ask the advocate, "does this re-state what information you are asking the witness ?") and 3) when I am just clueless as to the relevance of the information being elicited from the witness. I generally don't wait until the end of questioning in circumstances 1 and 2, but I do when it is 3.
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  • Tuesday, June 23, 2026 4:36 PM | Thomas P. Valenti
    Arbitrators should intervene during witness examinations when intervention is needed to protect fairness, efficiency, relevance, and the integrity of the record. They should not intervene merely because counsel is doing a poor job, because the arbitrator is curious too early, or because the arbitrator wants to “try the case” from the chair.

    The AAA guidance captures the balance well: arbitration is quasi-judicial, but it does not require strict courtroom evidence rules. The arbitrator should hear relevant and material evidence, determine admissibility/relevance/materiality efficiently, and still treat parties equally while allowing them to present their claims and defenses.

    The AAA preliminary-hearing guidance is a useful warning even though it is not limited to witness examinations: before raising issues sua sponte, the arbitrator should consider whether doing so creates an issue, steps outside neutrality, touches privilege, intrudes on party strategy, or adds disproportionate cost.
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  • Wednesday, June 24, 2026 5:55 AM | David Brynmor Thomas KC
    I would distinguish between (1) questions or comments to counsel and (2) questions to a witness.
    I would also distinguish between being (1) Presiding Arbitrator (including as sole arbitrator) and (2) "Wing" or co-Arbitrator on a panel of three.
    I comment to counsel if I am President, as part of my role to control the proceedings. When to do so is always a judgment call. I don't comment in that way if I am wing - that is for my President to address.

    I will put questions to witnesses, often at the end of their evidence (then asking if any further cross or redirect arises from the answers to my questions), asking open, albeit focused, questions. During longer cross-examination I will also ask questions at the end of sections or topics, after checking with counsel that they are about to move to something else. As President I will expressly invite my co-Arbitrators to ask questions, before me if they wish, at the end of a witness' evidence.

    As President I may also put limited questions to an evasive witness, especially if counsel (as they do) expressly or impliedly seek the Tribunal's assistance.
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  • Wednesday, June 24, 2026 9:07 AM | Robbie MacPherson
    I only ask questions after direct and cross is completed and then only if there is a material issue left unaddressed.
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