An Expert Witness’s Perspective on Testifying in Court versus Arbitration
Having recently testified in an arbitration proceeding, it occurred to me that many experts may not appreciate the differences between testifying in court and testifying in arbitration. When an individual is called to present expert witness testimony in court, the formality of the venue and the proceeding is obvious. However, an expert may be misled by the relative informality inherent to arbitration. A few significant differences include the following:
Trier of Fact
In court, the trier of fact will be a jury, or in the case of a bench trial, a judge. In arbitration, a single arbitrator, or a panel of multiple arbitrators, will decide the case. Arbitrators are often former judges and/or attorneys, but may also include industry or technical experts with knowledge and experience germane to the pending matter.
Court reporters are fixtures in the courtroom. It is important to speak slowly and clearly not just to make yourself easily understood by the trier of fact, but also to ensure that the court reporter accurately transcribes your oral testimony. In arbitration proceedings, a court reporter may or may not be used. In the absence of one, the arbitrator(s) may actively take notes during the expert’s presentation.
Specific rules govern direct and cross-examination in the courtroom. In arbitration, the parties may agree to adopt similar rules or they may not. Experts are often granted wide latitude to present testimony and sometimes opt to give a lecture instead of following the typical question and answer routine used in court.
Courtrooms are designed to be intimidating. Rich wood paneling, the high bench, the witness chair and the jury box all communicate the formality and seriousness of litigation. Arbitrations, however, typically occur in conference rooms. Occasionally conference rooms are set up to resemble the courtroom. However it is common for the participants (arbitrator, attorneys, clients and the witness) to simply sit around a large conference table.
It is common knowledge that in court, attorneys wear suits and judges wear robes. However, in arbitration, the judge will be wearing a suit or even business casual.
Despite the potential informality of arbitration (attire, venue, presentation style, etc.) an expert should conduct himself as if he were in a courtroom setting. The arbitrator(s), client and counsel will certainly maintain high expectations for an expert’s conduct, presentation and demeanor; and the stakes to the litigants are the same as if it were a courtroom trial. Don’t treat arbitrations any less seriously than courtroom testimony.