Aggressiveness vs. Assertiveness: What Is the Best Way to Conduct a Cross-Examination in Arbitration?

Gabriela de Oliveira Fernandes[1]

Bárbara Janne Fonseca da Silva[2]

 

For those who enjoy law, TV series and films are an entertaining glimpse into what seems to be the reality of a legal professional. Specifically, American productions like Suits and The Lincoln Lawyer have gained prominence in recent years for showcasing the intelligence and skill of the lawyers who star in these shows, turning courtrooms and negotiation tables into true spectacles.

In these stories, lawyers are always portrayed as nearly untouchable figures with unparalleled cleverness: they are sharp, never let a mistake slip by, and there is always a strategy behind their actions. These characters become a source of inspiration for those who aspire to practice law – after all, who wouldn’t want to be as victorious as Harvey Specter and Jessica Pearson, or as clever as Mickey Haller?

In film and television, some of the most crucial – and suspenseful – moments are when lawyers cross-examine a witness, whether factual or technical. These scenes are almost always decisive to the plot and stand out especially because of the severe demeanor of the lawyers, who act in an almost brutal manner with the goal of pressuring the witness to give the answer that will resolve the case. In this narrative, it is the lawyer’s aggressiveness and relentlessness that supposedly lead to victory – but this portrayal is exactly what it claims to be: fictional.

Using aggressiveness as a strategic advantage in conducting a cross-examination could not be further from what is actually considered appropriate. Yet, conducting an examination in the most efficient and suitable way can prove to be a challenging task, especially for young lawyers.

That’s why, acknowledging the natural difficulties young arbitration practitioners face in conducting a cross-examination, the International Chamber of Commerce (ICC), through Young ICCA, held a workshop on March12, 2025 focusing on the cross-examination of technical experts.[3] On that occasion, the training focused on essential elements for conducting such examinations –  but one specific topic stood out for having been addressed in every panel: the demeanor of the lawyers.

When asked how to identify the best “questioning style” to adopt with technical assistants during a cross-examination, the experienced panelists[4] – including renowned arbitrators and technical experts – highlighted that an aggressive attitude towards witnesses is unnecessary. It became clear that there was a particular concern in advising young arbitration lawyers that the aggressiveness seen in American movies would not necessarily bring the results shown on screen.

In this sense, one of the workshop’s most important takeaways was the recommendation to adopt the premise that technical assistants are involved in arbitration to help the Arbitral Tribunal understand the technical aspects of the dispute, which go beyond legal issues. From that perspective, it would be more appropriate to make these experts feel comfortable during questioning. Moreover, it was suggested that lawyers select the truly important topics so that, in a strategic manner, they can demonstrate to the Tribunal why a certain answer supports their argument – or shows that the opposing party’s position is irrelevant to resolving the dispute.

In reality, aggressive and disrespectful communication may actually harm the credibility of the lawyer conducting the examination, which only hinders the main goal of clarifying the facts to ensure the Tribunal understands the case. Contrary to what Hollywood portrays, aggressiveness toward witnesses is clearly counterproductive.

Even when facing an expert witness who is not telling the truth, the lawyer’s role is merely to expose these falsehoods. It is up to the Arbitral Tribunal – and only the Tribunal – to warn the expert of the consequences of making false statements. In other words, it is the Tribunal that must correct the expert’s behavior and lead the hearing, not the lawyer.

Cross-examination should not be seen as an improvised performance, nor as a battlefield. It is much more like a carefully planned teaching process, in which the witness is guided along a pre-established path with clear objectives. It’s not a game of luck or brute force, but one of strategy and narrative clarity.

Its main goal is not necessarily to uncover new facts, but to reaffirm the factual elements that support the theory of the case presented since the beginning of the arbitration proceedings. It is at this moment that the pieces of the puzzle should fit together clearly, through the witness’s own narrative, guided by carefully crafted questions.

Naturally, if new and useful information emerges during the questioning, the lawyer must be attentive and have sufficient knowledgeable about the case to explore it during the examination – even if it wasn’t foreseen in the preparation. The greatest strength lies precisely in preparation: in choosing which stories need to be told, how to tell them, and executing this structure during the examination. Preparation is what transforms a set of questions into a coherent and persuasive narrative.

In practice, however, what is often observed is a cross-examination filled with overly leading questions, which end up limiting the witness’s responses. In trying to force confirmations, the lawyer often weakens the value of the testimony. Thus, what should be a powerful tool to pressure the opposing side into acknowledging key facts ends up having the opposite effect: reducing the probative value of the oral evidence.

Lawyers must recover the essence of examinations as a structuring part of the evidence. When properly guided, it not only reinforces the narrative built throughout the proceedings but also contributes to a clearer, stronger, and more effective presentation of the facts that truly matter to the outcome of the dispute.

This is not a call to adopt an excessively friendly attitude toward the experts being questioned, but rather to adopt an assertive posture that, through respectful and strategically planned communication, is able to connect the facts of the case with the answers provided. This approach allows the lawyer to use the testimony productively and, during the examination itself, demonstrate how their arguments are confirmed.

So, even if a lawyer aspires to act with the same intensity as Harvey, Jessica, or Mickey, they must remember that turning cross-examinations into spectacles benefits no one involved in the arbitration process. Lawyers should act with assertiveness rather than aggressiveness, showing confidence in (i) the arguments presented during the written phase of arbitration, (ii) their preparation for the questioning, and (iii) their anticipation of the possible answers – which, in the best-case scenario, will simply confirm the previously stated arguments and, ultimately, “win the case.”

 

[1] Lawyer in the arbitration team at Toledo Marchetti. Postgraduate student in Contract Law at FGV/SP and in European Union Law at the University of Coimbra.

[2] Lawyer in the litigation and arbitration team at Toledo Marchetti, holds a law degree from the University of São Paulo Law School.

[3] YOUNG ICCA, Young ICCA Skills Workshop: Cross-Examination of Experts. São Paulo, 2025. Disponível em:  <https://www.youngicca.org/young-icca-skills-training-workshop-cross-examination-experts>. Acesso em: 14 arb. 2025.

[4] In particular, Ms. Mayra Bryce (Partner at Payet, Rey, Cauvi, Pérez Abogados) and Mr. Eduardo Damião Gonçalves (Partner at Mattos Filho Advogados). Furthermore, the event was also attended by Mr. Gustavo Kulesza and Mr. André Abbud (Partners at BMA Advogados), Ms. Karina Goldberg (Partner at FCDG Advogados), Ms. Daniela Bambaci (Managing Director at BRG), Mr .Leonardo Florencio (Senior Managing Director at FTI), Mr. Mark Berberian (Vice President at Analysis Group), Mr. Gustavo Galizzi (Senior Director at Alvarez & Marsal), and Mr. Santiago Gatica (Senior Associate at Freshfields).