The Difference between Argument and Testimony in Arbitration.

Posted on 11/06/2016 · Posted in Arbitration, Expert Information, Expert Witness

Whether called as an expert witness to an arbitration proceeding, or providing testimony in a non-expert capacity, everyone involved in the arbitration process must understand the difference between argument and testimony.

In legal terms, testimony is a form of evidence given by a witness who makes a solemn factual statement or declaration. Arbitration proceedings are usually private unlike their judicial counterparts and take place in front of an arbitrator rather than a judge, but anyone providing testimony is still under oath to do so honestly. Like a judge, an arbitrator is an expert at listening to and evaluating evidence, and will be readily able to separate fact from fiction; if the arbitrator believes a witness is being untruthful or telling only part of the truth then he or she is more likely to discredit the rest of the testimony, and the whole testimony may be undermined or even disregarded completely.

No testimony is sufficient to establish a miracle, unless the testimony be of such a kind, that its falsehood would be more miraculous than the fact which it endeavours to establish”
David Hume

Unless testifying as an expert witness, opinions are usually limited to rational interpretations of what the witness has seen or heard. Even an expert witness, while he or she may draw on his or her specific industry or sector experience, will be providing testimony embedded in fact even when asked to give opinion.

The distinction between argument and testimony is not always recognised, but it is an important one to make, and to apply in the arbitration context. While testimony – in legal terms – takes the form of factual description of the events and circumstances relating to the dispute, an argument on the other hand serves to explain the logical reason behind the testimony and evidence, and is typically used to persuade someone of something. So in an arbitration proceeding, an argument may be used in an attempt to lead the arbitrator to a certain conclusion or decision. A sound logical argument should have a clear premise or set of premises leading to a conclusion, which is what you are trying to persuade the arbitrator to do or to believe. In a strong solid argument, it is impossible to agree with the premises without also agreeing with the conclusion.

Both argument and testimony have their place in arbitration proceedings, but it is important to know which one to employ at which point to make the best case before the arbitrator. From an expert’s point of view, anyone giving evidence as an expert, he or she should restrict themselves to providing opinions on the facts and not stray into acting as an advocate.

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Expert Evidence is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.