Associate - Baker McKenzie
On 16 June, CEPANI40 organised a workshop on expert evidence and cross-examination, hosted by Baker McKenzie. The event brought together an outstanding panel of counsel, arbitrators and experts for an engaging exchange of “war stories” and practical insights.
The panel, moderated by CEPANI40 co-chairs Lauren Rasking and Guillaume Croisant and featuring Pascal Hollander (Partner, Hollander Vermeire Dispute Resolution Brussels), Fabienne Borde (Managing Director, Kroll Paris), Jack Stirzaker (Principal, Brattle London) and Markus Altenkirch (Partner, Baker McKenzie Frankfurt and London), opened the discussion by giving their perspectives on what makes a cross-examination persuasive or ineffective. The speakers, while each highlighting considerations specific to their roles, were aligned on key takeaways.
They notably cautioned against the instinct to “win” the exchange by trying to force the expert to restate counsel’s case. Instead, effective advocacy lies in engaging genuinely with the expert’s analysis, testing assumptions, and exposing methodological weaknesses.
They also made clear that, when it comes to expert cross-examination, preparation is king. Counsel (and arbitrators) are expected to develop a sufficient grasp of the underlying technical issues, not to match the expert’s level of expertise, but to identify pressure points in the analysis and be able to sustain the discussion with the expert.
The moderators then asked the panel about the debated role of tribunal-appointed experts, a mechanism that remains very rare in practice. While it may be appropriate in exceptional circumstances, other tools are available to provide the arbitral tribunal with the indispensable understanding to rule on the matter at dispute, even when facing highly technical issues or conflicting expert evidence.
This conclusion offered our experts a perfect transition to addressing the mechanisms used in practice to bridge the gap between competing expert reports. Joint expert reports were considered of being sometimes burdensome and of limited added value, devolving into a mere restatement of previously submitted positions. By contrast, the practice of "hot-tubbing" received strong support, provided the tribunal is well-prepared and actively engages with targeted questions. An additional takeaway was the underuse of meetings between experts from the outset of the arbitration, even before any exchange of submissions, which can significantly narrow future disagreements.
Following an engaged Q&A session, discussions continued on the sun-bathed terrace of Baker McKenzie, where participants and panelists gathered around drinks and light bites. It was, as always, a delightful opportunity to reconnect with familiar faces from the arbitration community and to meet new practitioners in a relaxed atmosphere.
