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BDB Laws Tax Law for Business appears in the opinion section of Business Mirror every
Thursday.
Judicial affidavit rule
ARGUABLY the most difficult part of trial is conducting the direct examination of a
witness. It is where a witness takes the stand for the first time and is asked by his
lawyer, specific questions that serve as the groundwork of the case. The difficult
nature of eliciting these questions usually calls for objections by the opposing counsel.
Direct examinations, for example, should not be leading, which means that it should
not suggest the answer the lawyer is looking to have confirmed. Thus, the witness
should be intelligent enough to volunteer information from which subsequent questions
may be derived by the lawyer.
Direct examination of a witness usually takes several hearing dates to complete
because it is usually long and tedious. This makes the trial process cumbersome not
only to the witness who is discouraged by the pressure and tension of answering
questions on the spot, but also to the court who has to listen to the witness and rule at
the motions and objections of opposing counsels, at the same time.
In order to expedite court proceedings, the Supreme Court (SC) has finally decided to
do away with old-school litigation by crafting the Judicial Affidavit Rule (A.M. 12-8-8-
SC). Effective January 1, 2013, all direct examinations should be in the form of a
judicial affidavit. The said rule enumerates the following important innovations:
The rule shall apply to all actions, proceedings and incidents requiring the reception of
evidence before all courts and quasijudicial bodies;
The parties shall file with the court and serve on the adverse party, personally or by
licensed courier service, not later than five days before pre-trial or preliminary
conference or the scheduled hearing with respect to motions and incidents, the
following:
(a) The judicial affidavits of their witnesses; and,
(b) The parties documentary or object evidence, if any, which shall be attached to the
judicial affidavits and marked accordingly;
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The judicial affidavit shall contain a sworn attestation at the end, executed by the
lawyer who conducted or supervised the examination of the witness, to the effect that:
(a) He faithfully recorded or caused to be recorded the questions he asked and the
corresponding answers that the witness gave; and,
(b) Neither he nor any other person then present or assisting him coached the witness
regarding the latters answers.
(c) A false attestation shall subject the lawyer mentioned to disciplinary action,
including disbarment.
What is glaring among the foregoing enumeration is the provision requiring all judicial
affidavits to be submitted five days before pretrial or preliminary conference. Thus,
even before trial begins, it is expected by the courts that all the evidence that will be
presented have already been submitted, including of course the direct testimony of the
witnesses, which are in the form of judicial affidavits.
It is also important to note that postponements and revisions of the judicial affidavits
are greatly discouraged. Failure to submit and present a witness on a scheduled date
may mean losing a case.
This is a very ingenious rule that is introduced by the SC, although lawyers and
petitioners might find it difficult at first, since they have to prepare all documentary and
object evidence, as well as all the judicial affidavits of all the witnesses, in a very short
span of time. There are also instances where this rule might be difficult to apply.
In the Court of Tax Appeals (CTA) for example, with this rule, all documentary
evidence, including voluminous invoices and official receipts should already be
identified by witnesses in their judicial affidavits even before the pretrial begins. There
might be a problem applying this rule at the CTA as it usually commissions an
independent certified public accountant (CPA) to examine all these voluminous
documents. The independent CPA must be commissioned and qualified first by the
CTA before he can prepare his report and judicial affidavit. At present, the
commissioning of the ICPA happens during trial proper.
All these nuances, however, will not outweigh the benefits that this new rule will give to
the justice system. The faster the cases are resolved, the more people will believe that
the judiciary can deliver an efficient and speedy administration of justice. But there
must be a way to address the impracticability of this rule to certain situations such as
in the case of the CTA cases where the commissioning of an independent CPA is
required.
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The author is a senior associate of Du-Baladad and Associates Law Offices (BDB
Law), a member-firm of World Tax Services (WTS) Alliance.
The article is for general information only and is not intended, nor should be construed
as a substitute for tax, legal or financial advice on any specific matter. Applicability of
this article to any actual or particular tax or legal issue should be supported therefore
by a professional study or advice. If you have any comments or questions concerning
the article, you may e-mail the author at irwin.nidea@bdblaw.com.ph or call 403-2001
local 330.