WHAT IS THE TASK OF THE FILIPINO LAWYER? Jose W. Dioxno In June 1975, when Senator Diokno delivered in Davao City, the freedoms that we are pected ey group of lawyers country was ruled by one man, Ferdinand Marcos, «lawyer tured actos ne declared martial law on 21 September 1972 and remai immed dictator, who next 14 years. ined in power for the But Marcos didn’t just declare martial law, "I,” 1972, "do hereby prociaim that | shall govern the See ee Seeene of the entire government, including alts agencies and instrumentaties" Ande id jsst thats After ststting dowm Coreress and taking onthe power tenuoe nore Marcos exercised all executive and legislative powers. He alo exercised ug power, directly through military commissions that he created to ry cvtans and indirectly through his influence over the Supreme Court and his power, under the martial law constitution, to remove every member ofthe judiciary from lowest to highest, at will and even without cause.° He took over the mass media and heavily * censored the news before releasing it to the public.‘ He had people arrested by the thousands, violating their rights with impunity and without accountability In the face of such a regime, the law succumbed to the barrel ofthe soldier's Civil Liberties Union of the Philippine: gun. As the ¢s, which Diokno chaired, obser three months later — = "These are abnormal times. The administration of justice is muddled. The individual has to contend not only with the policeman but also with the soldier. The military arm moves as though in complete ignorance of such things as constitutional rights. The temper of the martial law regime indicates disregard and a lack of concern for traditional rights so deeply cherished. ‘Our own time reveals that when violence, intimidation and threats ‘put on the garb of legality, people are induced to submission and timidity. Many are lulled to the comfort ‘of complacency and acquiescence. The saddest thing that has happened to our people is that too many of them ‘are either confused as to the real issues, or have taken the attitude of ,, or have deluded themselves into believing that the present is ideal and permanent.”*, “On Trial: Techniques and Ideals of the Trial LawyerEnc —— ot, | While Senator Diokno's talk ostensibly focused on the, of evidence in court, he used the occasion to plant a in the minds of the lawyers present: What is the task of the Filipino lawyer when most of the people are too poor to even go to court? He ended ended by exhorting his colleagues to examine the country's social and legal systems and the legal profession itself ..and search for the changes that must be made so that the 95 percent of our people who cannot afford a lanyer may be able to attain justice.” Originally entitled, "1 this talk was delivered 26-28 June 1975 in a forum sponsored Peete ipter oft crated ar Chapter of the Integrated Bar of the Philippines (IBP). A transcription of the talk appears in the book, Recent Developments in Law and Jurisprudence: A Selection of Lectures Given at Various General Law Practice Institutes 1975-1977.” ‘e are gathered to discuss the presentation ofevidence. The first thing that we should ask ourselves i we eee ‘evidence or, to put it another way, ur task as trial Jawyers?)Many will tell you, our task as trial lawyers is to let justice triumph. But functionally, ‘our task as trial lawyers is tc =the court thatourclient is right. In short, we are a kind of glorified salesman selling a product. If that is true, and those ‘of you who have been in practice for as long as I have agree with me, then I think that the job of presenting evidence begins even before the client comes to the office. Tused to go along, with my father when. I was about twelve years old. During vacations 1 would go with him whenever he had trials in the provinces. I would carry his bag. In fact, they hada small chair reserved for tne behind the counsel's table. I was never allowed, of course, to sit at the counsel's table. But I would table. ‘And [heard him several times explain to clients when they would ask him, “Don Ramon, mananalo ba tayo?” (Are we going to win the case?) And he would always tell them “Alam ninyo, upang manalo ang isang Kliyente ay tatlong bagay ang kailangan.” (Three'things "ate necessary win a case.) The first, he said, was a good case. You must have, speaking to . Then, he said, “You nieed a'good lawyer, f Diokno On Trial: Techniques and Ideals of the Trial LawyerSE ailawyer who can show,the court that youhhave lawand justice on your Side, And third, you needa g00d judgerone who is:ready to follow the Teanndttoda justice. And I can guarantee to you,” he said, “the first two. Cannot guarantee the third.” Pea thoes here this morning is to sharpen our skills so that we will But you eee ones and try to make a better case out of a good case. Iwas released dur happened to me one day and this was sometime after give him a guar. ‘uring martial law. A client came to me and insisted that I him giving the sant that he would win, And of course I tried to answer good things wa une answers that I had heard my father give - the three Bood case, a good lawyer and a good judge. But my client, bein, ; ; being very cynical and very modem said, “Nagkakamali po kayo, Abogado.” (You are oe ayes “Bakit?” (Why?) “You don’t need three things,” sabi ni : d ings,” sabi niya sa akin. (he told me) “You only uel ae You don't even need a good judge. What you need is a judge vie it B0od for you. When the judge is good for you, you don't need a good lawyer, you don’t need a good case.” QUALITIES OF A GOOD LAWYER Well, in a sense, he is right. In another sense, he is not. Because even when you have a judge who is good for you, you still have to do a good job, otherwise you run the risk that the judge who is good for you will lose your case for you on appeal. And so whether you have a good judge or a judge who is good for you, you still have to be a good lawyer handling a good case. And to be a good lawyer requires many qualities. But the most important, especially in these times are: integrity or honesty not only to your client, notonly to the courts, but most importantly, honesty to yourself. There is one lesson that psychology teaches us and it is that if you repeat a lie often enough you get to believe it yourself. And when you iving not somebody else but yourself. begin to believe lies, you are deceit mele ‘And thereby, you are destroying your capacities as a lawyer, your capacities ‘peopl. In these times, that is especially important and iti i Diokno On Trial: Techniques and Ideals of the Trial LawyerLet me read to you what a lawyer wrote long ago in another co inanother civilization, This is what hesaide"The advocate must be se in speaking; but above all he must possess the quality which is best in the very nature of things the greatest and most important = that jg} mustbe a good man.” This lawyer is Quintilian who wrotein 88 A.D. 4,4 he further said, and this is also ‘very important for us in practi There is no greater benefit that we can confer on our clients than this, that should not cheat them by giving them empty boast of success.” In shor, an honest lawyer tells his client that his case is no good when he think that it is no good, Quintilian was not alone in saying these things. Before him, Aristotle in his Rhetorics said: “It is not, as some writers assume, that the Personal character of the speaker contributes nothing to his power of persuasion. On the contrary, his character may almost always be called the most effective gift of persuasion.” Both during pre-martial and martial law days, we refuse to believe some public figures even when we know what they are saying is true, simply because they have no credibility at all. And we believe other Public figures even when they say the most preposterous things because they are credible figures. In our own profession, unfortunately, there are lawyers with whom we would not enter into any agreement even if it were in writing, signed, notarized and witnessed by the judge because we know that lawyer will violate the agreement, And there are lawyers with whom We just talk and that would be enough. We don’t even have to put it in writing. And is not the second type of lawyer much more persuasive both for you and for the court? And so, the first requisite for an effective Presentation of evidence is integrity on the part of the lawyer. Judges have Often told me of some of our brethren at the bar who they will not believe even if they come to court with 30 witnesses. ‘Thesecond and think equally important quality of a lawyer is courage. A great English jurist defined it as follows: “What are the qualities he (referring to a lawyer) should possess? He should have a sense of honor. He should have courage undefeated. And he should be ready to ignore at once all popular applause or popular abuse. He should remember that when he is tickled by public approval, when he is flattered by the passing breath of popular favor, the administration of justice at once becomes in full danger.” For me, there is a more practical reason why the lawyer must have courage. And thatis, that a lawyer with courage will persuade a judge much 6 —_ Diokno On Trial: Techniques and Ideals of the Trial Lawyeree will fight him all the way, as high as necessary, you can be sure that the Tries, Will study your cases very well and make sure that the judgements, 'Y are going to be against you, are well studied. salt es Who thinks that he can win cases by kowtowing to judges ultimately pect Siving up the rights of his cient, i a lawyer who will you Kowtow roan’ tmsuccessful. You may win in the trial court because will kowtow mone /148® in one case. But in the next case the other lawyer are quite liable a than you do and you will lose. And in both cases you we must have cou, lose on appeal. For me, this is the practical reason why, heard of afightee 286 OU" 1b isto prosecute to fight. Where have you will not go tee are thOut courage? There are many other qualities but I lecture. That is neon 8S moming, IFT did, then would take up the entire so far discussed the te Pre iPal subject that we have to discuss. We have have to present his ries that a persuasive, effective lawyer must ‘sssssnalgfIRST, GET,THE EVIDENCE... a eee oa Of the lawyer in presenting evidence, of course, is to get . You cannot present evidence that you have not gotten. You cannot fry an egg unless you first have an egg. [have asked the U.P. Law Center to distribute among you the checklists entitled, Processing a Case for Trial (see pages 79-93), Outline of Evidence Rules (see pages 94-98), Using Circumstantial Evidence (see page 99-114), and Tracing A Missing Person (see page 115-116). I do not propose going over these outlines with you. It will probably take three or four lectures to finish. But let me tell you just how I use them and maybe from that you can form your own methods, because one of the important qualities of a lawyer is to imitate at the beginning but not to stop there. He should improve upon the model that he is imitating. Let me give you a practical example, not connected with law. All of you, Tknow, are familiar with Japanese watches. They are inexpensive. They are accurate. Do you know how they became that good? The manufacturer sent his technicians to Switzerland. They bought an old, complete Omega watch factory. They were trained by Omega people. Then they transplanted ie whole factory to Japan. After they transplanted the factory there, they ade ‘on the machinery and on the working methods. And now you have Japanese watches outselling Swiss watches throughout | = Dioko On Trial: Techniques and Ideals ofthe Tal Lawyer f " More easily than a lawyer without courage. When the judge knows that | | | |8 from watching oy learn trou examples po. ferroreniitear In the same 6s give YO a imitatin a er these wil - a et eR enced tobe moses rt point out mistakes to be avoided. Tirrpe th vex? This is the way Tse them, se 0,851 work ot hese cr ‘Evidence (oe pases 99-114) See ene ee SE atiattha ply as a reminder in cases Whe Pw can I prove ave ro, satisfactory. And Tkeep on asking PT rye it? Well the omy answers, Perit ea ret cates And then I go throt this. i ions. The first secti ence iPad into three a ve that X did what? i: What circumstantial evidence is admissiP And you will ‘That is why it is entitled the “doing of a huma? ae is Ree eee that indicate the Colne ea ctetoy (ei ie saya eager Ibe be Gola ee ear ce Ta usage, intention, desire, plan, motive, emotion, OPP® eae toe, a mechanical traces, organic traces, mental traces, ‘offers to comp! a subsequent remedial measures. es ter or ‘Then the next question is, how do you prove a human characte capacity? And there are the different elements as set forth in ChecKiist 3. [And the last is, how do you prove a fact of external nature? For. instance, how do you prove that a building was defective and that is why it collapsed? Fremember the case of the Philippine Bar Association’s building in Intramuros that was damaged by earthquake (see Figures 6, 7 and 8). The ‘Association sued the contractor and the builder. The defense was force majeure - earthquake. So we had to prove that while the earthquake was the immediate cause, the real cause was defective construction. That is an instance of external nature. ‘One of the items that we offered in evidence in that case was that other buildings located in the neighborhood which were also hit by the earthquake and as tall as, if not taller than the PBA building, did not suffer damage from the earthquake. That is a circumstance which indicates that there was something wrong with the building itself. Like if four of you eat a certain dish in a restaurant and all of you get food poisoning, you ays + Igheatruthful witness? Thats very important, i, sviageet witness, the chances are I will probably cr 085-ey4 Baty pring out facts that the adverse counsel did no¢, rng thy ithe isa truthful witness, he will generally an Pb But if he is not a truthful witness, then J wiy)"°* truyye' touch him. Unless I have some kind of strong Pebaii h. can dispose of him. For instance, he is an exconny iden x given a prior inconsistent statement or his testim, = they improbable and you can make it appear to be clear), ® cea because it runs counter to what a normal Person {nerd under the same circumstances. ula = Those are the general tules that I follow. If you ask Te: How ‘ “Howveay, those decisions in a split second when the court nae ination? We should have made those decisions Seat eal you should have sat down in the quiet, office with your client; you should have asked him who the Oey the other side would be. nese Put yourself in the place of your opponent. Try to figure out te witnesses you would present if you were in his side and then any 22. Diokno On Trial: Techniques and Ideuls of the Trial LawyerLea with ee tea _ gthisto your ater to spea eM, T hag by » Irn eg Bat Chik on the importance of legay ara oye City IEE onceP a” AC ncepcion said has stuck yg Ay ep i rs tice eX Robert Chie er of the masses of our People canny aia thin® nat 99PeCo™ 1 thought about this remark, the to, He said je Mord itself is enough. Mo, Carrio question whel d now I pose the same question, ed myself snnot pay for a lawyer, perhap° You. ys the peOP'* “forth. But when 95 percent ¢ tne ante, lazy ie Md lawyers, this is no longer a pe. aac f Task I xrcent of id ot a thing wrong With our syste '*l dog 4 ple « t be somet M, win Sct Pa a on as lawyers when 95 percent of the a we ane ly ee our services. 4 “Sats morning I am posing to you the questi... me better lawyers? Ifwe ae trying to become, Why a =e tl i to see justice done, then I submit to yoy tha me Tan’ because SS ich is important as an effective measure, if jg Vital aaa egalaid w! jon, should examine our socia} and | fat . members 0 ‘ rofessic 7 SS essin and search for the changes that musik Sunt an f our Ta that the 95 percent o mye people who cannot afford a Ia, ee toattain justice. id that if we content ourselves with legal Peed cry tye ery Ee we will just be maintaining their dependence upon way wae time we will be maintaining the defects in the system tke created this situation. May ou know, Ijust read this, that the 800d lawyer his cs He is aman who questions and bites, TH of myself as one like that. And so after hearing Chief Justice Concepcin speech, I dug up the statistical records of the Bureau of Census a Statistics, a government bureau. These are official martial law Statistg | found out from those statistics that from 1951 until 1971, the tops a of the families in our country comprise 25-40 percent of the total incomeg the country. Whereas the bottom 50 Percent of the families in our coutiy ~50 percent in 20 years -_had never reached 18 Percent of the total income So you have 5 percent ofthe families in our country Owning one and ne. half times more than 50 percent of the families, And so this 24 Diokno On Trial: Techniques and Ideals of the Trial LawyerEe how you would cross-examine them. So, your decision normally, will be made before the hearing begins and would be subject onl; to whether not new matters are brought up in the direct ee that you have not anticipated. Incidentally, one of the most fruitful games that I play as a lawyer i ; play as a lawyer is ae to forecast my adverse party's taste. [like to play a game of Teng f Seen advance not only who he would present asa witness and he wasaguments he would present as evidence, but even the order in which Present his witnesses and evidence. Tobe al ‘ counsel. ferrets you have to know the character of your adverse Bo to court got den know him, then the best ting yu can dois to who know him, re is in court and watch him try a case, or talk to others and the stenogra $e People who know him best are the clerks of court epevirnsictntt rege Ow the strengths and the weaknesses of Fem slOE Bape eee renting before theic counts They are the best ere arial fade i ane TES the about the judge. ographers are also very good sources of information WHY ARE WE TRYING TO BECOME BETTER LAWYERS? _ We have now discussed the matter of getting the evidence, getting evidencein, keeping evidence out and preserving your record. think that is what this presentation of evidence is all about. Now, I would like to end by asking you this, which to my mind is a very fundamental question. We are here and I'm very happy and very proud that this seminar in Davao has the largest audience among the seminars that I have attended. Thave been lecturing since February, as Atty. Casiano Flores remarked, because we are trying to learn something from each other in order to form and polish our skills as lawyers. But ‘why do we want to form and ish our skills as lawyers? Is it simply because we would want to have the prestige of being a good lawyer? Is it simply because we want to ‘earn more money as lawyers and get more clients? Isit because we want to do a better job for our clients? Or is it because we realize, as a great English jurist said, that “Every man right down to the boy who ties the counsel's back ought to remember that he is in some degree assisting in coe sor than meray sting a qual between v0 Peele HSS a minister of justice.” Diokno On Trial: Techniques and ideals of the Trial Lawyer 23Ee ——— If this was something that has happened once or twice, we can say that are being changed. But the statistics I have checked date back to 1951 up to 1971, the last year when the statistics were published. I submit toyou that something is wrong with the system. Has the Integrated Bar of Davao, in addition to giving legal aid and sharpening our skills as lawyers, tried to study to what extent the profession is serving the people of Davao = the people who do not have the money to hire lawyers, and what can be gone and should be done to improve the social system, the legal system, the economic system, the cultural system, and above all, the structure of Profession so that we may truly become ministers of justice? Thank you. [Applause] General Order No, 1, 22 September 1972. Presidential Decree No. 39 (1972), amended by Presidential Dacree No, 566 (1974) 1973 Prt. Const. art. XVII, §§ ¥ and 10. Lette of Instruction No. 1 ordered the closure ofall news nd television : 8 papers, magazines, radio a facilities until further orders of the President. 5 General Order No. 2 and its subsequent amendments authorized the military to arrest and detain persons violating certain provisions of the Revised Penal Code and required that those arrested were not to be released “until otherwise ordered released by me (Mr. Marcos) or by ‘my duly designated representative." Goneral Order No. 2-Aordered the mass arrest of leading Jouralists in print and electronic media. 6 Crt Liserries Union oF THE PHLPPINES, THE STATE OF THE NATION AFTER Tree YEARS oF MARTIAL Low 81-82 (1975). Jose W. Diokno, Presentation of Evidence, in Recent Deve. o°wens N LAW AND JURISPRUDENGE: ‘ASeLeoTION oF LecTunes Given ar VaRious Genena. Lan Pracce nstrutes 1975-1977 237-259 (William G. Gumtang ed., U.P. Law Center) (1978). is 22 8 Senator Diokno was arrested without warrant and imprisoned without charges from ‘September 1972 to 11 September 1974 by the regime of Ferdinand Marcos. He spent most of his detertion atthe Maximum Security Uni, Fort Bonfaco, Makati City Inthe second yor this detention, he was placed under soltary confinement at For Magsaysey, Laur, Nueva Enja from 12 March to 11 Apri 1973. 9 _tp:/iwwu:phivoles.dost govph/Earthquake!1968Casiguranc lcasiquen in. Nai. Court ot Appeals, G.R. No. L-47851; United Construction Co. nc. Courtot * ray Rn ot Court of Appeals, L-#7896,3 October 1988. ‘Appeals, L-47863; Philippine Bar Association 11 Supra note 8. an On Tra Techiue and eas of he Tate 25 BonTHINGS TO _DO— FACTS a written entries on @ case with Senator Diokno's hand Free Legal Assistance Figure 13. Things to Do - Facts handled as @ member ofthe (Form ‘poling political prisoners in Kalinga that he ‘Group (FLAG) during martial law. Diokno On Trial: Techniaves ‘and Ideals of the Trial Lawyer 7Lely} TECHNIQUES OF PRESENTING ORAL AND DOCUMENTARY EVIDENCE OsE W. Diokno In this talk, Senator Diokno delves deep i i = tk, leep into the specific tasks and essential skill ofthe trial lawyer. He discusses how to plan the trial ofa case and explains how to use the trial i i i wines forms that he devised. He ends with tips on presenting A transcription of this talk, ori " i ti , originally entitled, "Presentation of Oral and Documentary Evidence” was published in Trial Techniques: Proceedings of the Institute on Trial Techniques ~1979. It is based on a lecture delivered in a forum held by the U.P Law Center from 5-10 November 1979 at the Bocobo Hall, University of the Philippines, Quezon City. ____ The transcription was reprinted in the first volume of Trial Lawyer's Magazine in November 1986 as part of a collection of materials on trial technique written by local and foreign experts on trial practice.? In addition to the forms that Senator Diokno devised, one more has been included in Part 3 the form on Discovery (Form 11-A, see page 132). s the title of this discourse suggests, this is a subject on techniques of presenting oral and documentary evidence. It is a subject on techniques and not law. Itisa discourse on presentation and not marshaling of evidence. Consequently, I shall not discuss, except peripherally, the law, nor shall Igo into any great detail about preparation. What I will try to do is offer you a miscellaneous collection of tips that I ope may help you try a case. I do not propose to be scholarly, or complete, wven original, What I do hope is that what I will discuss here may be 1 and practical. Before go on, I would like to give you a warning. I stressed techniques use that is the subject matter, and not because technique is all that ters, For a lawyer to be complete, technique and ideals must go hand, As American legal philosopher Karl Llewellyn said, “Twithout ideals is a menace. Ideals without technique are a Mess. One p,. , to put technique to work upon ideals and with vision.” - Now, technique isa means to an end. What is the end that trial lay, Pursue? We try cases to win them. If we think that we have NO chan, win, we should not be trying them. Consequently, the basic function of, trial lawyer is to win cases, but to do so within the law. What do | Mean by winning a case? I mean obtaining a favorable judgment so that if you, clients have suffered any harm or injury they may recover. And if you, clients have caused harm or injury, that they should not be made to pay more than what the law requires. ‘Now, to fulfill this function, we have to know more than the law. We ve to do more than merely convince the court that the law is on our persuade the judge that it is right and just that judgment be clients. In short, itis not enough as the law book tells you of your case. You must also have an image of your case ur case that appeals to the reason and sense of justice g that would make him say, “Indeed, this person is n't that way, maybe I can interpret it so that it will ‘hich young trial lawyers are not very familiar ak, the secret of success of the great masters at the e all taught what Aristotle said: That the law is ire. But we forget what Gregory the Great said: more effectively when anger ministers at her trial of a lawsuit is not only to find the correct ing that will raise the sense of outrage of 1 into concrete tasks, the job of a trial tissible evidence and he must do so for maximum persuasive effect. ent of his client’s cause of action. hen he must do more, he must decide the case in his client's ive direct examination andee proper introduction of exhibits. And that seems to be the subject matter of this discourse. But this is only one of the tasks of a lawyer. Second, he must be able to keep the opponent's evidence out. He does this by well-placed and timely objections and motions to strike out. Third, he must be able to expose the weaknesses of his opponent's case. He does this by effective cross-examination, by impeachment and by rebuttal. Then he must strengthen or rehabilitate any part of his case that his opponent has succeeded in weakening. The lawyer does this by redirect examination and presenting corroborating evidence. Finally, he must preserve the record so that, if the trial judge excludes admissible evidence, then he must make ‘an appropriate offer of proof.* And of course, at the end of the trial, he must: depict the stance of the evidence and law into the strongest and most persuasive picture of his client's case. He does this normally in this jurisdiction not by oral argument but by written memoranda. Now let me repeat briefly the specific tasks of a lawyer: (1) conduct direct examination and present exhibits; (2) make objections and motions to strike out; (3) cross-examine, impeach and rebut; (4) redirect and corroborate; (5) make offer of proof; and (6) submit persuasive memoranda. We cannot cover all of these subjects in this discourse. I will concentrate on the first two aspects, leaving the rest for a later exposition. ‘THE QUALITIES OF A PERSUASIVE TRIAL LAWYER But before I go into this task there is something that I must stress. Our task is to persuade the court. But there is a very ancient saying which says, “Whatever you are speaking so loudly, I cannot hear what you are saying,” In our case, this means that a lawyer must not only have the techniques of presenting evidence and persuading, his own personality must be persuasive. What are the factors that make a persuasive trial lawyer? I think the ‘most important is that you earn the respect of the court. There are many facts that lead to thlag think ithe moselsppostan actors arse i he the judge recognizes you as a fighter. If the judge knows that you are not oe ee is that the judge respects your ability as a lawyer, not only your knowledge of the law but also your judgment. Third, the judge respects your integrity. Diokno On Trial: Techniques and Ideals of the Trial Lawyer 31Part | - Trial Tech beak > the most important personal quay itie se, to my mind, are These, to m) Of course, he must have other ski} 0; if he ersuasive trial lawyer. Pr do his task effectively. ILLS OF A TRIAL LAWYER THE SKI ill and the one that I have found mo. The most important i mmoong the younger members of the bar, is the abil is being said and to understand, st lack, LY to lig one of us as a human being has the natural tendency sant to hear. When someone says something, we eet je t it according to our preconceived notions. Trial laweeey Y try tuxury while they are in court. They must hear what canp, ‘derstand what is being said not only by the aie bei 'd the adverse party. And this, of course, requires ba isten. sically ad skill that a trial lawyer must have is the skill tog cily and understandably and, if possible, briefly. = tise many of us, including myself, often talk too much vie when two would suffice. But as long as your meaning t is sufficient. mung, that a trial lawyer must have is he must be able to think e decisions quickly. Sometimes no matter how well ‘ou will be caught by surprise in court. Unless you can ult of your inability to cope with the surprise factor ast the rest of that session and that can harm your ies that I should mention, for example: havinga tful of the convenience of others, remaining are all helpful qualities and certainly we n't consider them as essential as the earlier all of these qualities and even those them all to the requisite degree it practice, self-control and sel qualities to become res] L9 Oral & Docume A sacs 1E TRIAL IN ADVANCE at is the essential trial technique? What is i vers may give different answers, but for me thors; : iffer e i to plan the trial in advance. To know before I ae ant fo rave, how and in what order I will prove them, and as. progresses, to know what I have Proved and what I have yet to id before I rest my case, to be s rh BREE ture that I have proved everything, Soe sami, you may not know how to “dou have planned your case, then you have a much hance than abrilian Cross-examiner who has gone to court without ane Oe without a plan is like trying to box blindfolded a knock your o; i 2 pee out with a lucky punch. But then you have to bein writing. how much you are going to plan, that is, how elaborate your il be, depends upon the character of the lawyer and the nature of . My late father, who was a trial lawyer, used to keep or make his the back of used envelopes. And they consisted of only one or two er witness and maybe a description of the more important exhibit. ‘one or two words to remind him what it was all about. time he presented a witness or identified an exhibit, he would alittle check mark or cross out the words that he had written at the e used envelope. But my father had a brilliant memory. He could by volume and page in the Philippine Reports without reading or at them. And he was practicing at a time that was more leisurely ay (see Figure 14). Uhave never been able to follow his example. 1 er elaborate plans. Even in the simplest case, | fill out t least the Diokno On Trial: Techniques and ideals of the Trial Lawyer 33As a student, Ramon Diokno the Asociacion Escolar de Filipinas and was chosen its fret founded the Colegio de La Ilustracion, and was one of rs of the Rizal University, where he was also a professor. or of La Fraternidad and El Nacionalista; and president of Trabajo de Filipinas. He was initiated as a Mason in the ‘was elected Secretary of the Philippine. d Te Hotes Wetter athe be eet 1933 to 1935. In 1935, he was appointed Government insel, the first person to occupy the position. He resigned Corporate Counsel during the Japanese Occupation. After 3s elected Senator from 1946 to 1949. ee Figure 15) among the forms that come along can see from the Case Chart (see Figure 15) you eft column, then Witnesses and Exhibits on the in one sentence, not necessarily grammati d, I write the fact that I want to establish en put the name of the witness who will it that he will identify which suppor do this not only for my case but also at [have to prove and whatheh@s ato prove. I may not be able to fill in the exhibits and the witnesses completely for my opponent, but Thave a pretty good idea of who he is going to call and what exhibit heis going to present. Where doI get my ideas about my opponent's witnesses? From my own client and from my investigation of the case. Your client generally knows who can testify for the opponent and on what matter. KEEP A TRIAL BOOK Now in amore elaborate case, Luse almost all of the forms that have been given here. So if you Doreen) don’t mind, I'd like to go over them one by one with you. I keep ina three-ring binder that I call a Trial Book. You can also use a der. On the left side, put a simple two-hole punch and file one se forms there. Then on the right, put the two-hole punch on file the remaining forms there. So that, in court, the pages open ntly and do not occupy much space. I divide the Trial Book into ig tabbed sections in this order: Control Pleadings Facts Law Notes Motions Pre-Trial Plaintiff's Case Plaintiff's Exhibits . Defendant's Case . Defendant's Exhibits Trial Log Rebuttal ‘Arguments/Trial Memorandum . Evaluation Diokno On Trial: Techniques andPart | ~ Trial . om 1, CONTROL The first section is Control. You will see in this section the § forms: Retainer Record (see Figure 9), Things to Do - Facts (see "ing Things to Do - Law (see Figure 26), Civil Docket (see Figure 16), and ga to Date (Form 5, see page 125). Summary The Civil Docket is simply ely a description of what is to be done. Assigned s responsible for that task. Under Date we actually and Date Done. This way we can monitor not also if it has already been accomplished, and 2, see Figure 10) has What, Assigned To and of a survey plan of land ina case involving your client to submit to you a certified yu just put there under What ~ survey ou place client. Nowif itis the office person in the office who will do“others.” Then the. date, of course, Land if done, when it vig ae indicates the date due, if it isdone plished. Vhat is the advantage of this? is is just like a marketi ly what these tools are. JS to Do - Facts (sce Fig, ing list which most housewives keep. This is Only in your case, these things in the list of ure 10) and Things to Do - Law (see Figure 26) hat you will have to complete before the trial. e nich you are going to be ames of the witnesses, most of us know, very, very rarely does a client tell all the truth in tial interview. As you interview him some more and as he brings witnesses, these things will change. But at least, you have a record 1 first interview, your first contact with your client. jow this Summary to Date (Form §, sce page 125) is very useful. I use after every court session. The summary tells me how things are in the case. You will notice that there is a section in this form called luation.” This is the key to the whole thing. The first part of the ary is just, “Okay, how far have we gone? What else do I have to do is case? What is the next step?” that evaluation is the key. Unfortunately, Icannot show you any of pers. Sometimes my entries simply read "Okay." Or “Judge seems g.” Itis for my own use. Before the next trial date, [just go over this ary and then I will know if [still have to go through the record of se, read the transcript of the last hearing, and the like. -ading the summary is often enough for me to remember everything GETS eS HOSE Renee a RAS buy cubes Cea to the next section. Diokno On Trial: Techniques and Ideals of the Trial Lawyer 37“The second section of the Trial Book is very simple ~ Pleadings the form that goes with ple eadings is Theory (see Figure 17), You don, Ang need this except that it is an intel ally Hlectual discipline to fill it out, You think you know theory; you think you kno ot adverse party's theory; but you try to summarize the th hen to putit into a few words en to fit into this form, you realize that you had the wy.’ picture of your own 9, opponent's theory. T Your There are little phra ayibavecseapeiat fe first reading of the pleadings jt, when you get down to pre i. the theory that you begin to understand what the caseis really all about. The Theory form is divided into three parts—complaint! answer theory and reply theory. ;plaint theory, contains liability theory and damage theory, most cases, as civil cases, have two elements. The first responsibility of the defendant to the plaintiff. The e damages or remedies that the plaintiff is entitled clear on both aspects and you have to know the pleadings, I put the pleadings right behind that when I bring my Trial Book to court pleadings are voluminous, I file them in pleading to make it easy to finditin .‘After the Pleadings, the next section is Facts. You have two forms here: rsons Involved (Form 7, see page 127) and Fact Log (Form 8, see page 128). Fact Log (Form 8) is nothing but a chronological order of the events of ‘case, It is different from the Case Chart (see Figure 15), which indicates elements of your cause of action and how you are going to prove it. Fact Log (Form 8) is the story of the case, what happened between parties, when they met, what they said, and so on. The Fact Log, in er words, relates to evidentiary facts. The Case Chart (Form 12) refers Itimate facts. You will note that there is Date, Event/Participants and Source in Fact Log (Form 8). The Source is where did I, as the lawyer, get information. Most of the time, it comes from my client's witnesses. metimes I get it from the newspapers. For example, before martial law, ere was any notorious crime you could go into the newspaper reports get a lot of information from what the press reported. Today, under tial law, you can’t get anything. If am handling a medical malpractice e and I happen to chat with a friendly doctor, he may give me some 2 that can be of help. So that is why you have Source — so you won't get who told you what you wrote down here. Then on top of that you have the form, Persons Involved (Form 7, page 127). 1 do not always use this form, but I must tell you that for a er politician I have a lousy memory for names. In cases involving yy persons I do try to keep a list of names of everyone whose name is, sntioned in the Fact Log (Form 8) with a short description of who they Sometimes, I even draw a sketch, for example, when we have a case jolving partition and there are many relatives who come from different ches of the family. Instead of using Persons Involved (Form 7) I just a legal size paper and draw a family tree. Anything that will remind of who is who in the case. casefleMMAKE SLAW NOTES ‘After the section on Facts comes the section on Law Notes which tains the form Law Notes (Form 9, see Figure 18).1 want to tell you that ep another book which I often bring to court called my Trial Manual. a different one and I would suggest that you use a three-ring binder this. I keep duplicates of my Law Notes (Form 9) from my cases in Diokno On Trial: Techniques and Ideals of the Trial Lawyer 39.| LAW NOTES: Thenext section is for Motions is self-explanatory. Here only put down the motions ave something to do with jal. All important motions id be summarized in the ‘or Motions (Form 10, see ; ma against other accuses) & forth (see Figure 28) Wr. ang’? researched them, Ses, have a case that on a 1 similar question, I don’t ha ole looking for my previous v8 All Thave to do is pull out Manual and bring that pa. research up to date. Ireseanha Seta ee . So I now have to SCRA* from 1976 up apes date to make my research fae!nn “taken up in a pre-trial are here, by category. By going through this form, ou can be assured that you have not forgotten anything, important for the tral conference. (se also Form 11-A on Discovery, page 132) cess GPLAINTIERS CASE ‘The next section is Plaintiff's Case. The forms included here are: Case (Form 12, see Figure 15), Fact Chart (Form 13, see page 134), Admissions orm 14, see page 135), List of Witnesses (Form 15, se page 136), Witness Guide orm 16, see Figure 11), Witness Notes (Form 16-A, see Figure 20) Statement alysis (Form 17, see page 139) and Exhibit Guide (Form 18, see Figure 21) 1 ave already discussed the Case Chart (Form 12). Admissions (Form 14) and jst of Witnesses (Form 15, see page 136) are self-explanatory. The Witness Guide (see Figure 11) is very important. This will tell you 1 the details of the witness, including how he looks, if he appears to e a credible witness, and whether he is reliable in the sense that “hindi akukuha ng kalaban.” (He cannot be compromised by the other side.) And en, there are the things to watch out for or that we should be careful pout. For example, a witness who talks too much. You are preparing im by asking him questions; before you know it, he is five miles away om the question. With a witness like that, you put down, “talkative” r “tends to exaggerate.” The bottom part of the Witness Guide (Form 16) is the most important part because it tells you the points you need to bring out from the witness. ‘ou will notice there are little spaces for check marks on the side. That ans that before you end your direct examination, you go through this bottom portion and check if you have elicited everything you needed from the witness. If you are using this form for your opponent's witnesses, then. before you end your cross-examination you check this portion to make ith the worry that you forgot to ask the witness some important point or pverlooked an important matter. J Following Witness Guide (Form 16) is the form Statement Ani Form 17, see page 139). This is important especially in criminal c ‘here you have the affidavits of the prosecution witne: ‘here you analyze the statement. You note down what id, the page, etc., or in case of a sworn statement, the Diokno On Trial: Techniques andNot all, but those points that you think you are going to use for | IINESS cross, should be noted. Those points you would wanttokeep in | mind because they can be useful later on. Usually, you do nothave this for your own witnesses. For your own witnesses, what you usually have is only the Witness Guide (Form 16, see Figure 11) together with some kind of a signed statement by the witness. Thenextitemis Witness Notes 16-A, see Figure 20). 1 use form when I cross-examine .y opponent's witnesses. Before I to court, [already fill in the left umn (“DIRECT/RE-DIRECT") with what I expect will be the content of the direct examination, based on the affidavit or sworn statement of the witness. I then put amark cor asterisk on the right column (“CROSS”) beside the entries that I should include in my cross-examination. In addition, when when I go to cour, listen closely to the direct examination and compare it with the entries the left column (“DIRECT/RE-DIRECT”). If the witness deviates from prior statement or affidavit, I make a note of the discrepancy on the t column (“CROSS”). During, my cross-examination, I can impeach witness with his prior inconsistent statement. Figure 20. Witness Notes (s0e page 135) your witness is being cross-examined you will take your notes .xamination on the right portion of Witness Notes (Form 16-A) so left you will simply place a check mark on those points where irect. INCE OF AN “EXHIBIT GUIDE” is Exhibit Guide (Form 18, see Figure 21). You must xhibit. You will notice the phrase Exhibit that when you present an exhibit, you have: st two cases where the adverse party le to establish later were false. In one Ideals of the Trial Lawyeraon MT eve Gude (see page 140) yy back. [don’t know how many ou know Quintilian, the very ous Roman-Spanish lawyer. wrote the book, still one of the books on trial practice I have sr read, written in the year 88 D. This is one of the pieces of ice that he gives: “Read every ment.” But many lawyers go to court, present exhibits, then are surprised when tions of the exhibits are read their opponents which destroy ontradict their case. The next section of the Trial \k is Plaintiff's Exhibits which ins the form called List of deliberate, I think; in the other, the 00d faith of opposing counsel was taken advantage of, But the funny thing is that, in the first case where | believed the forgery was deliberate, the adverse counsel did not need thatletter in order to prove his case. He had already proved his point but he presented a fake letter. When. I proved that it was fake, his case blew up in his face. So what lesson did I learn from that? First, never present any forged document, not only is, itillegal, butif you get caught you are dead, The second thing is, read every document, every line, every page, every word of every exhibit before you present it in court. Now this is advice that goes way, ust oF EXHIBITSExhibits (Form 19, sce Figure 22). This form is alist of every as itis marked in court and each exhibit number identified «bit or description, The last two columns are admitted or exciuge Patina filled in when the documents are offered in evidence and Tha, on the offer I the exhibits are not voluminous, may afta exhibits to the List of Exhibits. “Opies os 9, DEFENDANT'S CASE The Defendant's Case, which is the next section in the Tri identical to the Plaintiff's Case in make-up and has the same fj Boo, is Chart Form 12, see Figure 15) Fact Chart (Form 13, seepage 134) qr Ci (Form 44, see page 135), List of Witnesses (Form 15 Admission , See Guide (Form 16, see Figure 11), Witness Notes (Form 1h. ne 8), Witness =A, Statement Analysis (Form 17, see page 139) and Exhibit Guide nee 29, Figure 21). is orm 18,3 10. DEFENDANT'S EXHIBITS | a Trial Log section. The form for this section (Trial Log ige 142) is simply a brief record of the proceedings, All ate of the proceeding and what transpired (e.g, “postpone! case called at 10.a.m. Plaintiff continued direct exam of witness. ‘bits A, B and C." This is my quick reference guide to the ues and Ideals of the Trial LawyerCk ee put it at the end of every session because that is the time when you can remember the point, the witness and/or exhibit that needs tobe rebutted. If you know which witness you will use to rebut a particular matter, you can also put that here, There is only one form here, Rebuttal (Form 21, see Figure 23) nlp ARGUMEN Tae Then you have the Argument! Trial Memorandum section which contains the form on Argument (Form 22, see Figure 24). This is an interesting form. In many cases, the adverse counsel may forget to prove e important point. Naturally, you do not remind him of it during the or he may cure his omission. you have to remember for elf, so that you can include | ARSUMENT in your final arguments or trial_| | |ssso"F teases jorandum. This is where you son ird those points. 14, EVALUATIONseo The last section is Evaluation, ch contains a form on luation (Form 23, see Figure 12). this up when the judgment es down. You have to criticize self when you fill out this . As I said earlier, you can ove only if you can look at rself objectively, recognize weaknesses, recognize your Diokno On Trial: Techniquesfailings and try to improve on them. And the Evaluati N form to do this. It also has a bonus because you also eval uate yo, and you know what mistakes he has made and hopefutiy fo nN } Fully you mA i the same mMistak Pro,” y If that you are not going to commit She Seitaatien promise that you will never keep. me AFTER THE MECHANICS, LAY DOWN THE PRINCIPLES have I given you all of these forms? Basically, because cas fetes is the plan of the trial. A record of that pte your Trial Book. The Trial Book also contains a record of how mae implementing the plan. It is lot of work tokeep it, butit has tren od a compensation. Trial judges are impressed by lawyers who ate p; hen they appear in court, and the Trial Book shows thes, ihe weet pared. Second, it saves time in the long tun. Why? If yoy don’t ast ford of what has been happening at every trial, before every trig) Nt you do? You go over the files of your case. You read the tras What U are going to waste so much time review) 3 Fn SOUTE going toa fore every trial date. With the Trial Book, You simply go overt jotes and you will remember what's happening, t to me the biggest bonus that I get out of using this Trial Book is ces me to think of my cases, I can't deceive myself. If! am, case, and to think of end of the case that] planned to prove at the besin. I w, for my own Satisfaction, that I haye ing that can be Teasonably expected of a lawyer. sed the mechanics, now Jet us di your order of proof? Well, the usual practice is this: with a strong witness, Who is a strong witness? The Id be a person who can withstand searchi id can give th iscuss the principles Present evidence on the essential elements of ility is concerned, 2 * youare lucky. Normally, you are; would not want to because‘wants to present a Weak witness, but you willbe forced to because only that particular witness can testify to some vital matter. How do you deal ‘nth such witness? You put him in the middle. And right after him, you vat some other witness who can corroborate this weak witness on other ‘ints. Naturally, he cannot corroborate him on the point that only this ness can testify to. But he can corroborate him on other points. Then you end, hopefully, with a strong witness, Now, what about the proof of the defendant? Does he follow the same order? Well, as far as the defendant is concerned the matter of having a witness who can give the court a general picture of the case is not really very important. Why? Because by the time the defendant presents his evidence, the judge already has a good idea of what the case is all about, inasmuch as all of the plaintiff's witnesses have already testified and the defendant has already cross-examined them, So, from the direct examination of plaintiff’s witnesses and from the thrust of your cross-examination, the judge will already have an idea of what the case is all about and what the issues are, Therefore, as far as the defendant is concerned, his major consideration is how tocreate a favorable first impression on the judge. You don’t have to follow the guideline on the chronological order of strong witness, weak witness, strong witness. ‘What is important is to hit the judge quickly with your first witness, to overcome the psychological effects of the plaintiff's witnesses. ‘Now, one more factor about the defendant's case. Very often, plaintiff's witnesses testify that the defendant did or said such and such a thing. Very many young lawyers are tempted to have their clients deny it right away. [think the better practice would be this: call the defendant; have him give his testimony in narrative form; then at the end of the narrative, before you turn him over for cross-examination, ask him a series of questions like — Question: The witness, Mr. So-and-so, said that youhave said such and such is true. How would you respond to this? ‘Answer: No, sit, [did not say that. you really did or said? hat he did. This is one way of the court without its being ues and Ideals ofthe Trial Lawyer 47KNOW YOUR JUDGE In discussing this matter of strong witness, weak Witne: mentioned the most important consideration of all, which is a, the judge's predilections and idiosyncracies. You will have ty - te man who i siting onthe bench. You may not agree with hig “eg not like him as a person; you may think he doesn’t know the Jay 2! a, think he is stupid; but he is the fellow who is going to deci ide Youre, He is the man whom you have to persuade, not the Supreme “ Ur a, the Court of Appeals. You have to get through to him first. hay Therefore, a basic consideration in planning is to know yoy e do not mean to know him in the sense of influencing him, but Be in the sense of knowing his peculiarities, because everyone of USis to some degree. You will ask: how do you know your judge when have never had a case tried before him? Well, one morning, quiet inconspicuously, go to his courtroom and sit at the back and Watch, ea \e tries a case and you will learn a lot. Another way is to ask your compaiieros (colleagues) who! have ay before him: “Hoy, kamusta ba si Judge So-and-s0? Ano ba ang yea oe Mahigpit ba yan o maluieng?” (How is Judge So-and-so as a judge? What he like as a person? Is he strict or lenient in court?) You can also go to his clerk of court or stenographer and ask about him. IPS IN PRESENTING WITNESSES Now, I would like to mention, with respect to direct examination, that have made a trial plan as I have suggested, then when you goto and start presenting your witnesses, you should have no problem. Ow your Trial Plan. You know your witness’ weaknesses, you know watch out for, you know what important points to bring out;sone except for one thing: many young lawyers try to show off theit in court, : * isthat, although they talk to their witness in simple n they go to court, they question their witness using is utter confusion. The best tip I can give you is th u used in questioning your witness in your rdsin court. Don'tsurprise the witness by es and Ideals of the Trial Lawyerwords. He may not understand you, Very few lawyers follow this, So, Tip number 1: Don't change your language. Don't change the wordings of your questions from the office inher EEE number 2: Don't ever ask any of your own witnesses about any exhibit that you have not discussed with him at your office. i Tip number 3:1f your witness is going to identify an exhibit, explain to your witness all these big words that you have to go through in court to.authenticate the exhibit, even if itis a ritual that has become practically speaningless. We all know the ritual: “Do you recognize this document?” “Yes, sir.” “Why do you recognize this document?” “Because it is a letter I received.” “Do you recognize this signature?” “Yes, sir.” “Why do you recognize this signature?” “have seen it very often.”” ‘And so on. There is really very little question about this, as long as your witness knows where you are going with your questioning and understands why you have to ask those questions. So my next tip, Tip number 4, is this: Whenever possible, get admissions or stipulations on your exhibits to eliminate the need for this ritual of identification in court. But this last tip is not an inflexible rule. There may be occasions when you want to keep yout exhibit to yourself.® What are these occasions? Well, first of all when should you ask for stipulations? My policy is this: If am going to present an exhibit on direct examination and if lam sure that the adverse party knows my client has those exhibits, then I will present them for stipulation. I lose nothing. But if my documents contain ‘matters that I will use on cross-examination, or if I think the adverse party can prepare a defense, then I keep my documents until the last minute* ~Diokno On Trial: Techniques and Ideals of the Trial Lawyer 492 eee aE YOUN tat, . become a tal lawyers try cases. You will only 2 Jose W. Diokno, Presentation of Oral and Documentary Evide ma (Jesus M. Elbinias ed.) (1986), 7 Ty a 3) Karl \ On What ls Wrong with So-Called Legal Educang . ~ Kalienbs: Education, 35 ¢. LR, 4 Treat Rl 182. § 40 Tender ofexcuded evidence, . eerie ae excluded bythe court, the oferormay fae oe ofthe record. the the same ata tn, ‘evidence excluded is oral, the offeror stata Wormactes: cist Poona crcunstaces lhe wines and he subtan gE cee 5 Pena Rézons Awersren (Central Law Book Eto Publishing Co. Ine) eet es on darn ton Dscovery which suplenents he foms devise Spree Gout on asa ae ard acre er Fe am eanaet AM tere Ooh tans ee cr S 7 assy Cour, Rul 190, 50 (0: “Opinion of ntnay witnesses, oe {or which proper basis is given, ereceivedin evidence regarding ° BNe” ofa which he has sufcent familiarity. hetnting Oral & Document, WITNESS “NOTES Dee a me aa aa ag. (at ee Tacit = AOAPAS DUSWIAS Beseoey Sat va Golem, ITI, ae hon Mapas 8, ty ge ae (pe —aa oda (Hane) a fit, ett Maia Cs s x we errre Bap, C1 Srestipion tte, 807 sfal, +4 AGS (6n@)_ Oliraw £1) Figure 25. Witness Notes (Form 16-A) with Senator Diokno's handwritten entries on a human rights case that he handled in Benguet during martial law. SI Diokno On Trial: Techniques and Ideals of the