TRIAL TECHNIQUE AND THE PRACTICE OF LAW By ARTURO'E. BALBASTRO AB., cum laude, LL.B, LL.M. (UP); LLM (Harvard) Professor of Law, University of the Philippines Pre-Bar Reviewer, UP Law Center and National Bar Review Center Practising AttorneyPhilippines Copyright, 1989 34H 072 But a >» (44 ISBN 971-23-0514-7 ALL RIGHTS RESERVED No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, type- written, xerox, or in any other form, for distri- bution or sele, without the written permission of the author. REE ost8-c0901 i fechriques-Babestro l Ne 4884 REPRINTED: NOVEMBER 2003 REX PRINTING Company, INC. rypocpaphy & cent ocgahey Bee Poretona St-Oveion Cy Tou os 712.0105 7281-08 g-6-04- Eslela Corpus, - Replacern eet To my parents, MELECIO and CONSUELO, my late wife, MA. VIOLETA, and my children, ARTURO, JR., MA. CONSUELO, and MELECIO Il, this humble work is affectionately dedicated. iFOREWORD Not too oftea comes by a masterful and valuable contri- bution to the legal literature. Written in a language which is ‘easily understandable though the style may be elegant, “TRIAL, TECHNIQUE AND THE PRACTICE OF LAW" necessarily teflects a profound scholarship in the law and a brosd expe- rience as a legal practitioner on the part of the author. This ‘work can only be the product of a full grasp of the technical skills which are indispensable for success as a trial lawyer. For years I have known the author as a Professor of Law in the University of the Philippines and as an active law practitioner and counselor with substantial clientele and extensive law practice and trial experience. Ibis gratifying to note that the author has taken time out of bis law teaching and practice to share unselfishly his vast and valuable experience in a rather specialized, if not alto- gether difficult, area of the legal profession. Law students and law practitioners will find this book interesting, helpful and inspiring. Undoubtedly, they can derive from it invaluable suggestions and pointers, To them I gladly recommend this book. Manila, Philippines, June 16, 1989. ‘Supreme CourtPREFACE More than a quarter of a century of law teaching and almost four decades of law practice led me to meet even only in a humble way a felt need of law students and young law practitioners, Law students need a suitable material to enable them within the shortest possible time to get a glimpse of a seemingly forbidding domain into which they are preparing to venture after graduation. ‘Young lawyers can find helpful a handbook to guide and even inspire them during the trying years in their struggle to gain a foothold in the practice of law. Both the format and the language of this work have been adopted to suit the avowed purpose, end at the same time meke it an easy and enjoyable reading for non-lawyers who desire to get even only a faint idea of what the practice of law is. It may be mentioned that had the rare privilege during my formative years as a lawyer to sit at the feet of some of the masters in the art of advocacy. For almost two decades, I was privileged to practice law under the tutelage of the late Senator Francisco A. Delgado and Atty. Modesto T. Flores, both leading advocates during their time. Parenthetically, Senator Delgado was considered by the Supreme Court, speaking through Mr. Justice Ignacio Villamor, in Delgado v. De la Rama, 43 Phil. 419, 423 (1922) “as one of the best lawyers of this forum”. ‘What provided me with a chance for further advancement in law was the appointment extended to me by then Dean Vicente Abad Santos, who later on became Secretary of Justice and Associate Justice of the Supreme Court, as member of the faculty of tho UP Collogo of Law. During my early years in the UP Law Faculty, I was assigned to teach Civil Procedure, Special Proceedings, Evidence and Trial Technique. During the past years, I have been handling review courses in Remedial Law and Mercentile Lew. If this humble work can be of assistance to both the law students and the young law practitioners, the efforts which I have exerted in its preparation will not be in vain.‘This opportunity I wish to take to acknowledge the inspi- ration and suggestions extended to me by my sons, Arturo, Jr. and Melecio II, who are themselves disciples of the law. Their suggestions provided me with the viewpoint of the law student and the young practitioner. Their inspiration made the tedious hours of writing this book less tiring and even enjoyable——: also wish to acknowledge the assistance extenddd to me typowsiting of the éraft of this TABLE OF CONTENTS Chapter I- INTRODUCTION Importance and purpose of the subject Definition of term: Chapter I1- THE PRACTICE OF LAW ‘Brief History of the Legal Professio Society and the need for 1AWYeT8 suman Preparation and qualifications for law practice Professional and academic requirements... Pereonal qualities ... ‘To practice alone or with others. ‘The lawyer and his client Chapter II - PREPARING THE CASE Importance of preparation ‘When to prepare Study of the facts Sources of the facts Marshalling facts snow ‘Tho law of the case Forming hypothesis, ‘Adopting the theory af the case: Resort to modes of discovery... ‘Anticipating opponent's case Chapter IV - PREPARATION OF PLEADINGS Determining the eause of action Choosing legal remedies. Purpose of pleadings.. SNRRRSSRESS 288Form and contents of pleadings. Reply, ‘Amended and Supplemental Pleadings ‘Advantages of Careful Preparation of Pleadings Chapter V - PRE-TRIAL Pre-trial should not be taken lightly. Strategy for pre-trial conference wn Matters taken up at the pre-trial stage . Binding effect of pre-trial order. Chapter VI - PREPARING CASE FOR ,TRIAL Preparedness - winning half the battle Conferring with witnesses .. Taking down of notes during the conference Advising the client to be eandid and frank with lawyer Review of testimonial and documentary evidence .. Arial brief. Test of a good trial brief. Chapter VII - PREPARATORY STEPS FOR TRIAL ‘Motion to set case for trial Subpoena for attendance of witness production of documentary evidence... Notice to produce documents and real evidence Request for admission, interrogatories an: depositions. Postponement of hearing .. Chapter VIII - TRIAL First experience... Personality of the lawyer, Court decorum and appearanes .. Faith in client's caus Reaping the fruits of a good preps Mastery of the rules of evidence... Order of trial. Order of examination of witness. Order of presentation of evidence, Chapter IX - DIRECT EXAMINATION OF ‘WITNESSES Purposes. Conducting direct examination Generating the confidence of the witness Clear présentation of fac ‘Systematic building up of the case. Preparation for unexpected testimony... Refreshing the memory of the witness ‘Time to end examination. Chapter X - OBJECTIONS Purpose of objections... ‘Objection on specific grounds Grounds for cbjections, Purpose of eross-examination Scope and extent of cross-examination ... ‘Two schools of cross-examination in the Philippines .. Preparing for cross-examination .. Decision to eross-éxamine or not . Manner of conducting eross-examination Cross-examiner should know beforehand answer to his question .. Leading, not misleading, questions allowe Repetitious questions not allowed.. Cross-examiner should know when to stop ‘Advantage already obtained should not be risked Impeachment of a witne: Rehabilitation of a witnes: BasagRes 7 17 8 9 9 80 BL 81 2Chapter XII - REDIRECT AND ‘RECROSS-EXAMINATION Purpose and scope of redirect examination .. 100 Danger in re-examining witness 100 Preliminary questions to refres of the witness 201 Purpose and scope of re-cross-examination .. +102, Recalling witnesses... Questioning of witnesses by the court... Gall of additional witnesses. Objections by counsel. Chapter XIII - FINAL/ORAL ARGUMENT, 108 103 103 ‘Under the Rules of Court 105 Present trend toward memorandum. 105 Form and contents of memorandum: 108 Chapter XIV - REEVALUATION ‘Travails of a trial lawyer nn 108 Necessity for reevaluation, 110 Lessons from past mistakes ... Desire to learn and improve skills and techniques Law practitioner's rewards 110 110 i Chapter I INTRODUCTION Importance and purpose of the subject ‘very law student with ambition, dreams to be a trial lawyer, a3 every budding lawyer strives for a successful law i ‘orlater the law student awakens to the reality practice, ‘Bint: aia layer isnot bore ‘he is a product of hard work and years of 5 ing. Along the way, the lawyer discovers the sabed frat that success in the practice of law is not the proverbial pot of gold at the end of the rainbow but the result ‘of many factors, prominent among which are rare intelligence, upright character, extraordinary diligence and good public relations. To discover every ingredient of a euccossful law praclice ike success in any worthwhile endeavor, will take an ‘effort of a lifetime. Fortunately, examining the footprints left by those who earlier trod the pathways of the law profession can give at least an inkling of, if not altogether an insight into, ‘the mysterious workings of these factors. ‘A consideration of the component elements of trial tech- nique and the requisite skills ngcessary for their application and acquiring the skills. ‘To achieve this objective is the main purpose of this work which is intendod|as an attempt at satisfying the felt need of those who are preparing for or starting a law practice Definition of terms inf means proceedings in open court after the plead- ings Rave béen filed and the cases otherwise ready for hearing, ‘pt and indluding the rendition of the judgment.’ YGriseetome v. Director of Prisons. 41 Phil. 968, 970 (821), 12 ‘TRIAL TECHNIQUE AND THE PRACTICE OF LAW ¢ an) simply defined asa rule of conduct or right? It is alee defined as a rule of action ‘the supreme power in the state for the go Goverment of komen actions? C7 Prasisa is the appliation of an art or science Iti the taiperformance or appl ieation of acquired knowledge, as act Gistinguished from ther {i hetr ideal relation to one another, As to lawyers and their professional activity, theory tells the lawyer where to go and - = s Gufsrmity ta the adopiod rules of procedure. But in a larger enon 1 Eaias Tet elvis aoe comnesl, asthe preparation of legal instruments and contracts by which legal rights are seeured, although such matters may not be pending in a court.* 4% WORDS AND PERASES 4014 (First Series citnig O Donoghue ¥. ‘Akin, 63 Ky. 2 Duy. 478, 480. 35 WORKS AND PHRASES 4014 (Ficet Serle citing Pope v. Phigsr, fo Tenn, (Ha) 68, 7; Sev. Haats TO Toe, 42,20 OW. 74, ‘RICHARDSON, JAMES R, ESTABLISHING A LAW PRACTICE 13, 1958) 55 WORDS AND PHRASES 5485 (First Series, citing Sloy v. Miler, 34 NE, 836, 887, 7 Ind. App. 889 Chapter I ‘THE PRACTICE OF LAW Daring earl times, the rules allowed ralativs and fiends tohandle and plead cases for the litigants. This practice started in Greece and Rome. It took some refined form in Rome where ‘Whe practice of ST Teo_wax oonaidaod honorary and the. pre ‘sqgupation of the gentleman wi jéndent source SFinmnpec As such the plosderwas ony pormiied to recive an honorarium and not strictly a compensation for his services. ‘Whe practice spread to Spain in a more: form and lawyers as_a class em aged ie Englasd ws toe ae of te Grell century. Seen ith the introdoction of Spanish laws in the Philippines, the legal profession became regulated under the Laws of the Indies in 1680. Under the Rules of Court of 1940, any person ‘who was licensed as a member of the bar in accordance with the statutory requirements and who was in good and regular standing, was entitled to practice law.* The same rule applies at present, with some modifications. As expressly provided for in the Revised Rules of Court, in the court of justi ofthe ¢, peace or what is now known asa Municipal or Trial Court, a party may conduct his litigation in the aid of an agent or friend ay ‘him, id of an attorney! In any other court, a party may / fs Ttigation personally or by aid of an attorney, and / his appearance must be eithey personal or by a duly authorized member of the bar! ‘Rule 127, See, 1, Revised Rules of Court, Role 198, See, $4, Revised Roles of Court4 ‘TRIAL TECHNIQUE AND THE PRACTICE OF LAW ‘Society and the need for lawyers Generally accopted is the fact that the main function of law is the ordering of society. 4a in uel Nighy techn and is Usually not within the if a member of society who has not been specially schooled in the legal intri- casies. What may be said of substantive law may also be said of the rales of procedure through which rights and obligations say be redressed or enfared in the courts of law. For society to avail of that function of law, there must be among its members ‘individuals who have received special training in the law and ‘who are familiar with the complexities of procedure. ‘Preparation and qualifications for law practice There are personal, professional and aeadeaic requice: eee lee of law in the Philippines. Professional and academic requirements. Only members of the bar in good and regular standing are ‘entitled to practice law.5 An applicant for admission as a member ofthe bar must be a citizen af the Philippines, at least twenty- one years of age, of good moral character, and a resident of the Philippines, and must produce béfore the Supreme Court satisfactory evidence of good moral character, and that no charges against him, involving moral turpitude, have been fled or are pending in any eourt in the Philippines The Approved and recognized fy the Secretary of v aucatons and that before he began the study of law, he had pursued and satisfactorily completed in an_authorized and recognized university or college, requiring for admission thereto the completion of a four-year high school cours, the course of study Rule 138, Soc 1, Revised Roles of Court, ‘Rule 198, Sec 2, Revised Rules of Court, Rule 188, Sec. 5, Revised Rules of Court. ‘THE PRACTICE OF LAW 5 ‘prescribed therein for a bachslor's degree) in arts or sciences with any of the following subjects as major or field of concen- tration: political science logic, english, spanish, Ristory or eco- nomics.* Of course, he has to pass the bar examinations given. annually in the City of Manila.” Sera ey an asset, to alaw practitioner. As generally observed, it is e natural and fundamental trait to lke people inasmuch as the lawyer’s professional success depends upon his relations with others. After all, it is generally through social and professional circles ‘that a lawyer gains a roputation for his legal expertise and skill If an attorney senses a mood to develop his personality, payeholog a success. He eri ‘think cfother veo ‘study them and their problems. And if he develops a real humanitarian interest in the people about him, he will find that he has unconsciously solved his own personality problems. ‘lower saga be net in appearance andin bebavioé He does not need to use expensive clothing. A of dressing is tecommended, Gaudy or lot ‘should be Srolded: Display of jewelry is proscribed, A little refinement in his actions and manner of talking will not only help but will create wonders for both the client and the court. Benasiand faiscallnipoan mak a lawyer goa long wey ‘in the profession. Like try which is very essentiel espe- cially at the start of his practice so as to make up for lack of tuperience, these traits spread easly armong prosperSvectiens, as well as the members of the bench and the bar. In fact, these” are the traite that can make or unmake lawyers, Rule 138, See, 6, Revised Roles of Court “Rule 198, Secs, 11 and 12, Revised Rules of Court, "RICHARDSON, JAMES R., ESTABLISHING A LAW PRACTICE 36 13958) Spi.6 ‘TRIAL TECHNIQUE AND THE PRACTICE OF LAW It must be remembered that these considerations do not only personally affect the lawyer concerned. He must keep theese in mind if he is tolbe faithful to his duty to maintain: respect for, and uphold the dignity of the legal profession, Tthas been zt that the best possible advice to be given ‘te one who has studied law for three or|four years, and to one ‘who has been licensed as a lawyer, is\to practice ae For ‘those who decide’ to practiée law, the question is whether to practice alone or with others. There are both advantages and disadvantages for each of these two choices. Jn practsi start of his career, allawyer immediat zet 1al realities of the profession| He enjoys the freedom and thrill there is ts it. On fee ee his handling of | It should be taken into account at this point that even an excellent and well-grounded class prepara- tion cannot provide a new lawyer with all the skills required for the pructive uf law. The pralival aspect of the lew is a now frontier for the fresh graduate, Suffice it to say that practice is a far ery from the rigors a law student undergoes within the four corners of a classroom. It may be well to point out that in this field of endeavor, as in many gthers, there is no sub- stitute for experience. Moreover, mistakes committed at the [ifnot fatal, effect a independence) He may be confined to a specific area of law and his exposure to practice may ed. This is not to speak of the hours which he may ‘be"Foquired to observe in the law office and the economic sacrifice which he may-be called upon to undergo during the period of his apprenticeship if he joins an established law firm as an assistant attorney. Even ifhe joins a law firm as a junior partner,which seldom happens at the start of one’s carcer, the limitations may still be present, although ina reduced or ‘modified form, Such a situation may still exist even ifone forms a partnership with othors who are also new to the profession. In the latter caso, the risk involved in trial and error exists, RICHARDSON, JAMES R,, ESTABLISHING A LAW FRACTIOS 35 sss) ‘THE PRACTICE OF LAW 7 Tn deciding to practice with others, the choive has to be made whether to put up a law office in partnershipstith other ‘new members of the bar, or to join an established law office. ‘The situation posed in the former may be similar to that when ‘one decides to practice alone, although in « modified form, and the risks are the sama, nay, the risks are multiplied several- fold. In the latter case, there is still another decision to make, namely, whether to choose a big law firm or a medium or small sized one. In the policy is generally to have the lawyers assigned to or are asked to choose specific areas of law co law practice. This allows specialization and the advantages that go with it. However, the disadvantage lies in the fact that, jn the Philippines, specialization will tie up the individual Jawyor to the law office forever or until he retires. The reason. is that at the present stage of law practice, and until the foreseeable future, in the Philippines, probably because of the size of the population, a lawyer cannot afford to engage in a specialized practice, unless he joins or remains with a big law Office. After specialization in a big law firm, for a lawyer to go fnto law practice alono in the Philippines would practically be ‘The exception, of course, is when a lawyer ‘become such a renowned expert in a given field that his situation parallels the myth of the buyers marching to the doorstep of the manufacturer of the best mousetrap in the world “Joining a smell or medium sized law office may not bring as much economic returns as being pert of a big law firm. ‘However, this sacrifice has to be paid as a price if a lawyer has ‘im mind exposure and training in all the different aspects of Jaw practice under the guidance of experienced lawyers to whom he may be assigned to assist in the beginning. Unlike in big law firms where assistants are merely’ ‘made to research, of as associates or junior partners they are made to specialize, fn small or medium sized law offices, the assistants or ass0- ciates aro given the chance to.do not only research work and= ion, but also to meet and confer with clients and. do trial or courtroom work. In the beginning, pla dane nner ‘ie supervision and guidance of senior attorneys who have the ‘requisite experience. After encugh seasoning which takes from five to ten years, depending upon one's ability to learn and the amount of exposure he is afforded, a lawyer may opt to remain svith the law office as a partner or he may decide to put up his8 {TRIAL TECHNIQUE AND THE PRACTICE OF LAW own law practice, not only with enough experience and the confidence that goes with it, but also with sufficient clientele of his own to provide the economic base to launch a law office of his own. Location is the first factor to be considered in putting up a law office. Proximity to clients as well as to the courts and offices with which the lawyer has to deal must be the major consideration. Access to clients end to these places plays an important role in the practice of law. Included in this factor is the kind of surroundings that should command respect. as, well as provide or assure security to the oceupants and those who go to the law office. While communication through the telephone may provide some access between lawyer and client, the importance of personal conferences cannot be minimized ‘especially in the preparation of documents and cases. Such importance may override the consideration of expenses for rentals. ‘The choice of an office location should not be limited to the National Capitel Region. One must consider his targeted clientele. A provincial office must not be diseounted espetially where there is ¢ perceived demand for competent legal services in certain areas. Next comes the interior of the law/sffige. While it is neces- sary to make it impressive, it is advisable to avoid too much luxury and ostentation. An office must be pleasant and invit- ing. Its appearance need not be so expensive as to frighten prospective clients with the fear of excessive fees. Enough pieces of furniture should be provided, aside from good venti- ation so as to make for the comfort and convenience of clients and witnesses, A conservative taste will evoke a sense of stability and respect, factors which induce clients to place their confi- dence in one's firm, ‘There must be a suitable working place for thelawyer and consultation spaco where clients are made to feel free and safe to confide their problems with the lawyer. The provisions for privacy should be made. A.good and workable library is a must in a law office: This, provides a working tool for the lawyer. Lack of this will not only negate a good impression in clients, but actually poses @ groat handicap to the lawyer in his day to day work ‘THE PRACTICE OF LAW ® Complimenting the physical requirements is the legal and secretarial staff Unless a lawyer decides to practice alone, ho should have a legal staff composed of lawyers to assist him. A secretarial staff composed of secretaries, stenographers, clerks ‘and messengers, or a combination of theso in one or two em- ployees, depending upon the size and budget of the law office, ig an essential part of a law offic. This is the support staff of ‘lawyer. These are the people who occupy the forefront of a Jaw OBES’ so much so that their competence, courtesy and ficiency are considered by the prospective clients in judging the firm even before they meet the lawyer. Hence, their a ‘made will either welcome or discourage clients. Managing a law office. ‘A good law practitioner must not only be a good lawyer, bbut he must also be a good office manager, especially if he practices alone. In big law offices, they have office managers ‘who take care of the administrative or management matters as distinguished from purely legal matters in law practice. It may be worthwhile to note at this point that a good lawyer is not necessarily 0 good administrator or manager. Failure to recognize this distinction can impede the success of a law practice. ‘As an office maciager, the lawyer must be able to make his staff work properly and efficiently Motivation of personnel to boost their morale by the personality of the lawyer or by incentives in pay and rank is necessary. Inspiring the staff by giving them an inkling of what they will or expect to become in the near future if they try their best in their work can even play a more important role than their immediate or present, income. ‘Management in the flow of work is also essential. A law office is service-oriented. In other words, there is only ineome coming into the law office if there is work accomplished. The ‘more efficient the work is done, the more aecomplishment there vill be. Henea, more income will flow into the coffers of the law office. How this, in turn, can be utilized to inspire or motivate the personnel is a matter of exccutive ability on the part of the one managing the law office. ‘To highlight the need for 2 good working staff, it should be noted that the Supreme Court has mandated the mainte-sens rena Ao ce ota a o nange-of an efficient fili ain of notices and cot sseS tadSilecings an a Suge ne tne Aa bie heredonee a ee acne indagraed icon tant effects is not excusable neglect." And this neglect-of the lawyer binds his client.? Wise and effective utilization of the office equipment and supplies is one important aspect to be considered. Waste should ‘be avoided as much as possible. In the long run, these minor things en ngoeatt to something in the over-all financial position ea Forming good habits. Corollary to the personal qualities of a lawyer is the for- mation of good habits, With good parsensl qualities'as a springboard, a lawyer can jump to forming good habits in the course of his practice. His quelity.of industry’can be sharpened into an abilit sagging Oe extent of being eal in ora at ‘moment thio ability beeomoe a habit, it ‘will become sceond nature s0 much s6 that everything a lawyer does bocomes hendiwork of ghoroughness, precision and Regularity in attending to one’s work as well as prompt ness in polntmentx ae court appiaraneeDare good heblts t develop in the course’éf one’s practice. Not only do these hhabits impress the courts and the clients alike, but also bring psychic and material satisfaction to the lawyer. Moreover, these traits bring honor to the profession. ‘There are other desirable habits which a lawyer can form as he seasons himself in the practice of his profession like candor and fairness. It is up to him to discover and develop these habits, depending upon the nature and extent of his law practico. itpasing v, Cabshug, GR No, 1-23229, Jaly 29, 1987, 20 SCRA 686, (698; Colel v. Philippine Bank of Commerce, OR. Ne. L.31137, Noversber 17, 1967; Rivera ¥. Vda de Cruz, G.R, No. L-21545, November 27, 1968, 25 SCRA 58, 61-62. Byivore v. Santos, 52 0.0. 1424. 13ge¢ eupra, Chapter II, Personal Qualities, “THE PRACTICE OF LAW n ‘The lawyer and the court. on ‘A lawyer's duty of prime importance is to ghserve-and_ the to ‘and judicial. Tis the duty of the lawyer to maintain towards the courts a respoctfal attitude, not for the sake ofthe temporary ineum- ‘pont of judicial office but for the maintenance ofits importance. Judges, not being wholly free to depend themselves, are peculiarly entitled to receive the support of the bar against ‘unjust critieism and clamor. Whenever there is « proper ground. for serious complaint ofa judicial officer, itis the right and duty ofthe lawyer to submit his to the proper authori In such cases, but not o ‘encouraged and the person making them should be protected.!® __Allawyer both as an officer of the court and as a citizen, say, eriteizd in properly respectful terms and through legit, mate channels/the act of courts and judges. In his — ‘with the courts, a lawyer may not divide his personality so as to be an attorney at one time and mere citizen at another * ‘The conduct ofthe lawyer beforg the cmt and with ot lawyers chould bo characterized by Fandor and faimess™1t is not candid or fair for tho lawyer knowingly fo misquote the contents of a paper, the testimony of a witness, the language cor the argument of opposing counsel, or the language of a decision or a textbook; or with knowledge of its invalidity, to cite as authority a decision that has been overruled, or a statute that has been repealed; or in argument to assert as a fact that which has been proved, or in those jurisdictions where a side hhas the opening and closing arguments, to mislead his oppo- nents by concealing or withholding positions in his opening argument upon which his side then intends to rely. It is unprofessional and dishonorable to deal other than candidly with the facts in taking the statements of witnesses, in drawing affidavits and other documents, and in the presentation of causes. He should not address to the judge arguments upon any ‘People v. Btebia, GR. No, L-26808, February 27,1909, 27 SORA1065, Ccrut v, Government Service Insurance System, GR. No, 121288, Febraary 28, 1969, 27 SCRA 174; Surigao Mineral Reservation Board v. Cloribel, GR. No. L-27072, January 9, 1570, 31 SCRA 2. S3Ganone of Legal Bthies, par Why re Almacen. GR. No, 27654, Februcry 18, 1970, 31 SCRA 862.1 TRIAL TECHNIQUE AND THE PRACTICE OF LAW point not properly calling for determination by him. These and all kindred practices are unprofessional and unworthy of an officer of the law charged, as in the lawyer, ith the duty of siding in the administration of justicej* The lawyer and his client. A lawyer owes loyalty) to his client not only in the case in which he has hhim but also after the relation of attorney and client has terminated. It is not good practice to permit him afterwards to defond in another case other persons against his former client under the pretext that the ease is distinct from, and independent of, the former case. Some have advanced the opinion that the lawyer can present a cause against a former client so long as no informa- tion given in confidence by the former client is used or revealed. However, the best interest of the 1 and the opened that any suspicion of disloyalty be avoided at all cost ‘The lawyer|owes entire(devotion)10 the interest of the ctientlivarm zeain the maintenance and defense of his rights at ability to the end that nothing be taken oF be withheld from him, save by the rules of law, jogely sooo No fear of justicial disfevor or public ‘unpopularity sI restrainh full'dischiarge of his auiy-" Tn the judicial ovum, the elie is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is stoadfastly to be borne in "Genone of Legal Ethics, par. 22. "SNorabrado v. Hernandez, Adm. Case No. 655, November 25,1968, 26 SCRA 12. "sperantticly maybe mctood hare ht the le Cre Rate ‘was maligned for handling the Politburo ease and when he ded, the law frm Dalgs Peres, Macspogel Dio, wher to ules wee a angen Iitomey al that time, took over as counsel for the somused whose aide was aceodingly unpopular at that time, The author had the privilege of assisting the principal counsel, the late Modesto 7. Flores, in conferring with the ceased at his detention cell in what is now known as Fort Bonifecio, p= paring the brief, and the eral argument before the Supreme Court in People ‘dose Lava, ef al. GIR No. LAO74, May 16, 1969, 28 SCRA 72. ‘THE PRACTICE OF LAW 13 in and not without the bounds of the law! The office of attorney docs not permit, much less does it demand of him for any client, lation of lew or any manner.of fraud He must ‘obey iy own oonsciencéjand not that. of his dient.” ‘8, Establishing ’‘the relation and its constraints. ‘The requisite in establishing the relation between alawyor ‘and a client is for the former to have. ‘The question is how can a lawyer have a client? ‘The (ast and’ @ advertisement possible, ‘even for a young lawyer and especially with his brother lawyers, fe the establishment of a well-merited reputation for profes- sional capacity.and fidelity "This cannot be forced, but - “gaust be the outcome of character end conduct. The publication * or circulation of ordinary simple business cards, being a matter of personal taste or local custom and sometimes of eonvenicnce, 4s not per se improper. But solicitation of business by circulars or advertisements, or by personal communications or inte: Oat ed by peonal relation, unprser al tis equally unprofessional to provure busisiess by indirection through tutors of any kind, whether through allied real estate firms or through trust companies by advertising or offering to draw deeds or wills or securing retainers in exchange for fexecutorships or trustecships to be procured by the lawyer. Indirect advertisement for business by furnishing or inspiring newspaper comments concerning the manner of his conduct, the magnitude of the interests involved, the importance of the lawyer's position, and all other like self-laudation, defy the ‘traditions and-lower the tone of our high calling, and are intolerable How then can a lawyer properly secure a client? ‘As to young lawyers entering the large lew offices, this ‘qcestion is no problem to them since all they will be expected to do will be to work for those who are already clients of the firm by whom they aze employed. There are a few men who canons of Legal Bthies, par 26. canon of Legsl Wehies, pan 27.“4 ‘TRIAL TECHNIQUE AND THE FRACTICE OF LAW are so brilliant that, they will be offered partnerships in law firme purely on account of their intellectual abilities, rogard- less of whether they are able to obtain or to control any business for the firm, It can be fairly stated, however, that, generally, the ability of a young, lawyer to progress in a large law office’ and eventually to be admitted to partnership will depend not only upon his heving legal ability and industry but on his being ablé to obtain end hold clients, which, after all, are the nec- ‘essary foundation of any law practice. ‘The following advice is as important to a young lawyer in a large law office as it is for one who is starting out in independent practice, although, of course, the obtainingof clients is more of a present necessity in the case of the latter than of of the former: 2D” Beit some gansta cad eling your fends that you have opened an office and stating where * + they can find you. - 2) Establish and maintain all possible contacts with people, \a) Renow associations with boyhood friends iu yout houetown, as well an will uew frieuds ia college and on vacations. (b) Affiliate with the church in which you have been reared Patholic or any of + the Proeatant denogpination, (Join one ar more lodges, the Masons, ‘the Knights of Columbus, or some other society. (A) Accopt any opportunities that, are offered to join one of the well-known luncheon clubs, such as the Rotary, Kiwanis, or Lions.(e) Join the chamber of commerce and do all the work that: may be assigned to you. () Affiliate yourself with the organization of your political party (g) Enter into the social life of the community, but do nov confine your social life to any particular group. (h) As you mike friends, you will receive invitations to deliver speeches on such special occasions as Fourth of July, National Heroes’ Day, and other like celebrations, 2°TRACY, JOHN EVARTS, THE SUCCESSFUL PRACTICE OF LAW gage, ‘SS7RACY, JOHN EVARTS, THE SUCCESSFUL PRACTICE OF LAW au ager. THE PRACTICE OF LAW as Accept every invitation of this kind, but perform the ‘task well by imposing upon yourself the responsibil- ity of thorough preparation and constant rehearsal so as to make your effort a creditable one. (i) Be ypenly interested in public affairs. (j) If you are married and have children, do. not fail to join the Parents-Teachers Association of their school. 3) If you practice i small town, make a bid for ouiside business by Gubseribing to one or two good commerdial law lists! through which outside whole Zale houses and attornoys forward collections. 4) ‘The elder lawyers)may engage your services for a special ‘piv of work which they have and for which they have no one “available in their own orgenization. [t may also be that: they are so pressed with work they will not have time to-do the ‘proper briefing of the law in some of their cases. They may ‘engage your services to do brief work for them in your spare time. Contacts with younger lawyéiS may result in business coming to you in one or two ways: (a) they may turn ovgr to you the matters which they themselves, handle on ‘account of their relation to both parties to the suit; and (b) they ‘may ask you to help them in some particularly difficult case, for many of them lack confidence in their own abilities and decisions and they long for outside help and advice. with the consent of the client and ény sharing is made jasis ‘of work done and responsibility ‘shouldered. / ‘You should make sure, however, that ny referral is made b. Fixing and collection of fees. It is said that the lawyer's feos, when paid, is the culmi- nation of the attorney’s efforts and resultant client benefits. ‘The fee, if adequate and reasonablp, is a great bulwark against unethical conduct, in that much temptation to err removed ‘Where need therefor does not exist. Possibly no single question in the practice of law is of more interest and importanes to the attorney than that of fixing fees for sorvices rendered. This is, a critical problem for young attorneys fortunate enough to he16 TRIAL TECHNIQUE AND THE PRACTICE OF LAW ‘confronted therewith, and it is a continuing problem in their practice.* ‘While itis true that there are certain criteria for deter- mining the amount of attorney's foes it must be recognized that they are not susceptible of universally uniform application. If the services rendered a cliont do nat clearly call for a minimum charge, the attorney must have recourso to various logitimate considerations in determining his fee. A problem closely ze- lated to the fixing of fees is the sufficiency of attornoy’s feos” ‘The fees that a lawyer should charge depend upon 2 number of factors, all of which mast be taken into considera- tion, such as the amount involved, the tim epg hediielby gad importance of the “im /ability of the client to pay, and ae ios ‘extent of the services rendered, and the/professional standing ofthe attamey” and*a-writien contract for services shall control the amount to be paid therefor unless found by the court to be ‘unconscionable or unreasonable."® This is othervise mown a¢ the rulo of “quanfini meraif.” ~ ‘There are three (3) kinds of atcomney’s fees: (1) retainer's fee (2) fixed foe (8) contingent fee. ion’ to the Tawyer a2) ee a (ee fer is Toren, or the lawyers aking avallable hie services to the client for'a specified period of time concerning » the giving of opinion and/or the handling of litigation for the dient. RICHARDSON, JAMES R., BSTABLISHING A LAW PRACTICE 27 4958, RICHARDSON, JAMES R,, ESTABLISHING A LAW PRACTICE 29- 53 4.958), TRACY, EVARTS JOHN, THE SUCCESSPUL PRACTICE OF LAW aL agen, Rule 138, Set. 24, Rules of Cour. dependent upon the successful out- come of the case. Usually the lawyer takes his fee out of any recovery which he may obtain in the client's behalf The probability of getting a favorable verdict and the solvency of the adverse party also have a bearing on the. percentage to be ‘agreed upon. Since the attorney's interest in the outcome of ‘case should not excoed that of the client, it is suggested that ‘the attomey’s interest in the amount to be recovered should sever excend 0%, and should be undertaken under a wrttn contract exeputed ‘work on the. tae in orden eleninate the posit of ony future misgn- P* In order not to be open to a charge of stirring tigation or promoting one under «contingent ‘foo arrange- 7 , the should. the cliont to pay a retainer’ foo This should be distinguished SS ment on the part of the lawyer to gary on. rasertous contract the client should bear the ‘expenses of litigation, even if the lawyer’s fees shall be on contingent basis. : A lawyer Should void: eon lint concerninghis, ommgeeeton nd shuld resets uegaritn only te prevent imposition, injustice or fraud TRACY, JOHN EVARTS, THE SUCCESSRUL, ae ortaw 57 aan. 32 955). S2cANONS OF LEGAL BTHICS, No-2g! evel v. Ney, 15 NW, 141 61 ow, 167,175, 42 Ar. Dee, Garon No. 20.07, Proposed Cade of Poteslnal Resfonsiity.18 TRIAL TECHNIQUE AND THE PRACTICE OF LAW © Lawyor’s Lion. ‘There are two @) kinds of lawyer's lien, nemely, setaining ‘property in the lawyer's possession with @ debt die him from the dlient.® ‘The retaining lien is distinguished from a cherging lien in that th {a s gonotal lens|that applies to the docu- ments and funds.of the client in the lawyer's possession regal of tho outcome ofthe caes} whl thats & at aa wecovere "The retaining Tien of an attorney is only ¢ passive right and cannot be actively enforced, 4.. Lawyer's candixness to client. {ea the boundan du of the whether his case is meritorious or not: ‘A lawyer should endeavor to obtain full knowledge at his tinipensrebaiaas aap reaped ies ect ge Sandil pinion ofthe mor ant probable recut of ponding or contemplated litigation. The miscarriages to which justice is subject, by reason of surprises and disappointments in evidence and witnesses, and through mistakes and errors of courts, even though only occasional, admonish lawyers to beware of bold and confident assurances to clionts, especially where the employment may depend upon such assurance. Whenever the controversy will admit of fair adjustment, the client should be advised to avoid or to end the litigation. ‘The lawyer esin assure the client that the lawyer will do everything within his command to promote the client's inter- est, but never on the outcome of the cao. ay to inform his elient~ 8} WORDS’AND PHRASES 636 citing Butcher's Union Slaughter- hhoase & Live Stock Landing Co, v. Crescent City Live Stock Landing & Slaughterhouse Ca. (La.) 6 South, 608, 611, 41 Le. Ann. 356 ‘Siyfatute v. Matute, GR. No, L-27892, May 26, 1910, 92 SCRA Ampil v. Agrava, GR No, L-27394, July $1, 1970, 84 SCRA 370. SGobb-Perezv. Lantin, GR. No, 1-22820, July 29, 1868, 24 SCRA 201. ‘Chapter It PREPARING THE CASE It is said that a good preparation of a case is half the battle won. By and large; law suits are won by just one thing industrious, intelligent, thoughtful preparation.» Tn an address to the Chicago Bar Association in 1930, Emory R. Buckner, a great New York trial attorney, seid: “.. if | were a client and knew as much about the trial of cases as I have leerned as a lawyer, I pallhuechares pioly maepatomanticade unknown man of only mediocre ability who would Sue the ak, ep es at aap: Jul nding gut all he fg that are eleven, Ubon fpbwes ence Song well Bevel Fee asinte oud Glover and capable forensic orter, who Went in 08 so many of our specislists and celebrities do, with no particular proparation except to pik things Up as thoy dovelop.”* After observing forensic success through many years of study of attorneys while sitting as a trial judge, Judge Daniel F. Cohalan said, in an address delivered in 1924 to the New ‘York Bar Association, on the subject on of “How Not To Try a Case”: “Te isqgdomatlyalthough somewhat contradic- tory, that a lawyer should not wait to try his case until he gets to court. Most of the work to be done TRACY, JOHN EVARTS, THE SUCCESSFUL PRACTICE OF LAW sarasan. Reprint in Comeline, Asher L. Twi Tacties, pp. 438-440, Bender & Co, Ins, Albany, N'Y, 1982 1920 TRIAL TECHNIQUE AND THE PRACTICE OF LAW in a case miust be done before a man comes to court, and more cases in court are won out of court then, are-won in it, in the ogne that in-the vast majority of cases the verdict goes to the side which is pre- pared. If genius be the infinite capacity for taking pains, so is that’ man master of his case who has prepared and prepared and prepared. I hazard the assertion that preparation is that which nine times in ten wins or the lack of which loses a.case. More cases are win by the work of preparation than in any ‘other way, and likewise more cases are lost by lack of preparation than in any other way. Therefore, I ‘would lay down as the major warning to a man who ‘was about to try a case not to attempt to do so without preparation — preparation as complete, as methodical and as thorough as possible."* "The above advice rings true today as it did years ago. Its timelessness is attested to by present practitioners who tell us that cases are actually won “within the four comers of the law office”, “A lawyer should aveid procrastination) The human mind has its own lit jons which can work to the lawyer's great disadventage in the handling of a casa/Preparation in advance or ahead of time can provide the la ty to Feview and rethink the case — the theory, the evidence and ‘the strategy, among others. This will give the lawyer all the chance to think the case out, reason and reflect upon it in his mind and in his own way, before deciding on the theory, strategy, and other problems involved in the case“ An authority on the subject answered the question on when to prepare a case by saying: “While on the general subject of preparation, I must say a word about when’ the work should be done. Lectures on Legal Topice, Val V, p. 471. The MacMillan Co, New Yorke, 1998 PREPARING THE CASE a Ifyour case is at issue in May and will not come on for trial until October, your idea will probably be that you should plen to make your preparation for ‘rial late in September. The proper time, however, to startin on such work of preparation is May. How do you know how busy you are going to be in September? How do you know that you will not at that time be thrown into # complicated job of eorpo- rato reorganization that will bo taking every minute of your waling time? Ifyou can, in May, start on the preparation of your trial briefs, both on the law and on the facts, and have them finished before you start on your summer vacation (if you take @ vacation). ‘You will find that your mind will be much clearer when you return to your office and find a lot of work, piled up on your desk. It will then be with a feeling of confidence and relief that you will look at the file of Smith against Jones, realizing that case is all prepared for trial, with the exception of going over ‘your briefs once more and conferring with the wit- ‘nosees a fow days bofore the date set far the trial ™ ‘Tolbe éore specific) is edviscble to start preparing the cin moments antl he eer earns 8 liont. ing the facts of the ease avail Dre evidence ‘At this particular time, the facts are stil fresh in the lawyer’s mind which has already started its inertia about the possibilities in the case. Note also that the client and his witnesses will have greater facility in rocalling more facts pertinent to the case if they aro interviewed at the earliest opportunity. It chould be borne in mind that the facts are the starting! point in a case, A case arises because certain events took place ‘to tak place, thereby causing pertinent facts to comey inate “TRACY, JOHN EVARTS, THE SUCCESSFUL PRACTICE OF LAW. 0 987.22 TWAL TECHNIQUE AND THE PRACTICE OF LAW JIC A Seommnmaabaiontacin CD Facts may be obtaine © inthe client goes toa “engage the latter's 5 ‘the dlient tells the lawyer a briof overview of the ease, From this sketchy outline of the Z fawyer can go into more details shonlé-he 1 qient decide to take the , the first and primary’souree ent himself During the interview, the lawyer down notes, unless there is a tape-recorder documenting the conference. sitet is up to the lawyer to judge the situation, more particu- larly whether it is advisable to use a tepe-recorder or just to jot down notes on the interview. the lawyer can pro able evidence, both documentary and testimonial, there is in the case. After interviewing the client, the lawyer can now inter- view the witnesses who can provide further details of the facts given by the client or who can furnish support for the facts made available by the client himself. Ecaminction of documents acs can saa be cisino’. through the examination uments, When the client first saw the lawyer, the client might have brought with him some. documents which have a bearing on the case. This can also help ‘the lawyer in probing the facts during the intervi re Pah et eta Cee ees ey ros yc op ‘time is that there has as yet no pending case and the client jis securing the services of 2 lawyer for the possible filing ofa ‘The other possibility is that the client: sees a lawyer because either he has already received a summons with a copy of the complaint in a civil case or he has been subpoenaed in a oe, Ogi! PREPARING THE CASE a criminal case. In thé first case, tho cliont must be bringing with him a copy of the com In thé second case) the client must have with him a copy of the charge with the supporting affi- either case, the Tawyer should examine ‘the documents brought by the client in orderta determine What acts are involved 60 6s to be able to conduct further interviews with. a3 well as io have a thorough interview with the witnesses, =| ‘SERA EEPPRETRI the interview with the client. and the witnesses, and the examination of the pleadings and documents mentioned earlier, the lawyer con. proceed to have an independent investigation of the case on his own or through some detective or investigation ageney of his ‘confidence. The idea is to get deeper into the bottom of the case, probably made necessary by the findings made during the interview with the client and the witnesses and the exemina- tion of the documents. This may involve an ocular inspection of the scene of the crime or the property subject matter of the case. There is no substitute for first-hand knowledge or infor- mation about every detail of the case. At the same time, this ‘will also provide the lawyer with a thorough grasp of the facts 50 necessary for building up the client's case and for the eross- examination of the adverse party and the latter's witnesses. ‘Marislogtociers Having gathered the facts, the lawyer should now put them together to form e whole picture of the case. Every detail should be considered and evaluated so as to fit into the frame- work of the story that is the case under study. One convenient ‘approach enables the lawyer at the problem at hand from the very beginning up to the when the question at issue came up. It gives the lawyer a full yet convenient grasp of the factual background of the case. “The law of the cases With the factual background ofthe case, the lawyer should be able to pin-point the legal issues involved. These legal issues can be refined upon consultation of legal provisions and juris- prudence applicable to the case, It is at this stage that the ae2 ‘TRIAL TECHNIQUE AND THE PRACTICE OF LAW lawyer can fall back on what he learned in the law school, more specifically haw to locate the particular authority which he ean ‘use in the case. 5 ‘The Philippines being a civil law ‘that the primary source of law 3s well'as th Teen exposed to tates provisions the law school, the lawyer should not find any difficulty in finding and locating them. ne eg aed te BEE Soo diy tla ne ply $n instr iw ncn Fudiciel pronouncements: can be very. ‘useful in determining the applicability of the law itself in areas where the statutory Provisions are not clear or specific. isions which fill in the gaps in the statutory provisions are of undoubted utility to the lawyer in the latter's effort at finding the law of the case. matory provisions applicable to the case, but also the deci- sions rendered by the courts, In this regard, the came may be said of citstors as well es indices of the different publications of judicial decisions. The arrangement of the subject matter is) alphabetical which makes it convenient for the researcher to find the necessary authority. As the different statutory provisions and-rolings of the courts have already been loeated and gathered, he langerisnowreadye analyz tham. Analysis of statuto joes_not require as complicated a procedure a2 thet of fudcal scsoes In analyzing joc! pronouncements, it is advisable as it is necessary to read the original of the case 60 as to make the lawyer familiar with the facts involved and the reasoning used by the court in arriving at the ruling, Without such familiarity, the lawyer might be citing a ruling which is not applicable to the ease under study. This is so even in determining to what extent the decision is controlling in relation to the case et bar. PREPARING THE CASE 5 Forming \typothesis _With the ass and the apliable statutory provisions and sis er of themn as the facts, ‘Not only the and the law applicable to the case vil hypothesis favorable to his client should be formed, but also ‘those which are(nfavorablé) The idea is to predict the theory of the case which the adverse party is likely to adopt 0 as to anticipate the opponent's case. os Shute au anaphase ‘to handle a case for the ‘of real property, the ‘of which has been placed not in the name of his client but in that of another person. The lawyer can explore the following hypotheses: 1) ‘The property was. money of his client but was placed in| ee ‘to make it appear that the latter hes property to back up his credit. 2 The property was acquired with the funds of bis client but had to be placed in the name of another in view of the client's disqualification under the Public ‘Land Law or the anti-graft law. 3) The property was actually purchased by the client with the money of the other person, with the under- standing that the title shall remain in the name of the latter until the money used to acquire the property hhas been repaid. From emong the hyp ths formulated, a particular theory should be ‘will determine the course of action of the. Tn the particular case. In choosing the ted, each of the possible hypotheses should be tested against s the hypothesis probable in the li suman experience? Is itn accord with the ordinary happenings of nature? Can it be susceptible to being believed in the nature of events taking place in the ordinary course of human activities and events? Only when thege questions are answered in the affirmative28 TRIAL TECHNIQUE AND THE PRACTICE OF LAW with respect to a particular hypothesis, should that hypothesis bbe chosen and adopted as the theory of the case for the client. ‘This is ao because the whole fabric of the caze will have to be woven around this framework. Consequently, it will determine the pleadings to be prepared and filed, the nature and amount of evidence necessary to be presented during the trial, and the possible outcome of the case, In other words, the elient’s eause - vill rise or fall depending upon the theory of the case which his lawyer adopts. Moreover, a partys not allowed to change his theory of the case on appeal. In considering the first hypothesis in the illustration, the lawyer must be prepared to prove the financial standing of his, liont to show capacity to purchase the property. At the same time, he must be ready with evidence to prove that the other person needed to build up his credit-for certain, legitimate purposes, thereby creating an implied trust. ‘The second hypothesis suifors from a fatal flaw in that it is an admission of violation of law and bad faith on the client's, part. Under such theory, if adopted, the client appears to be coming ta court not with clean hands and, therefore. is not entitled to any remedy in law or equity. As such, this hypothe- sis should be discarded outright. ‘With respect to the third hypothesis, the lawyer must be propared to prove thd loan transaction between his client and ‘the other parson and the fact that the loan has already been paid, orifthe loan has not yet been paid, the ability ofthe client » pay the same. At the same time, the relation of trust should also be established In deciding as to which of the two hypotheses he should ‘choose, that is, between the first and the third, assuming that hhe has sufficient evidence to prove both, the lawyer must consider the tests of probability, naturalness and credibility discussed earlier. Crucial in deciding which hypothesis to adopt ‘as the theory of the caso is the actuations and relation of the client and the other person, and with respect to each other, Agoneite v. Javier, 88 Phil, 424; American Express Company Natividad, 48 Phil. 207; San Agustin v, Barvice, 68 Phil. 475, 480; Toribis +, Decata, 55 Phil 48, Severin v, Saverine, & Phil. 349; Uy Aloe v. Cho Jan Jing, 18 Phil 200, PREPARING THE CASE a such as to lend eredence to the theory adopted. Of eourse, the Competence, availability, and weight of the evidence to prove uct actuations and relation between the partes will help in aking the choice. a VResort to modes of discovery ‘The value of discovery cannot be overestimated. Through mine the strength or weakness of his case, and that of his Spat Tee ie laryer an also use any of these modes to Supply ‘dr-suppléinent his evidence, especially in situations where the witness or .entary evillence is missing or cannot be made available during the trial, “Under the Rules of Court, the modes of discovery available the practitioner are ‘oF inspection of of persork? ¢ taking of a deposition may be 1s toe nag tie peniency ot cose for the purpose of securing evidence or exploring the’ ‘ridence it The possesion of the adverse pay, orto porpela- See tatmony oe wrevooe during the perhcy of the cane before or during trial or while anticipating the result of ane appeal. + ‘While contemplating to file or preparing a case, the lawyer eee eels to im ort his oppunani oF eve ‘Bpeetuate suc testimony fr agin Te event tat the case hla ‘During the pendency of the case, the deposition may be taken for the purpose of obtaining evidence or determ ae) ee Bae eT ao SEE TSE Ss er orca tie up the evidence Tar aay be ceed by the evere party In the lack instance, and the deposition may be utilized for the purpose of impeachment of the witness on crase-examination. While awaiting trial or the 15, 26, 27 and 25, Revised Rules of Cour, + Ww ‘the different modes of discovery, the lawyer can. f ¥ o* Rules of Court, aparty may make a written request for admission intent of fact which “Hild be sot forth in the request. Copies of the documents should be made available to the adverse party. Bach of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request; which shall not be less then ten (10) days after service thereof, or within such furthor time as the court may allow on motion” and notice, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.* This mode of discovery, if properly utilized, can substan- tially reduce the trial time and abbreviate the proceedings, It can also be useful for proving mat jegations of the Rule 26, Sec. 2, Rules of Court en PREPARING THE CASE 20 complaint which the sodvere party hae boon ble to deny” specifically in his answer and W Tawyer mey not have ‘sufficient evidence to substantiate Giving ‘the trial without such adinission by the adverse party. An example may be given where the document evidencing the transaction has been lost or.missing and there is no witness available to establish the facts even by secondary evidence. Without making known to ‘the adverse party his predicament, the lawyer may be able to supply his missing evidence by means of such admission by the adverse party. Otherwise, the lawyer will have no mesns to substantiate the material allegations of his complaint iii. By means of this mode of discovery, the lawyer may be able to Prey ease, but which evidence party, After determining the nature of such evidence, the lawyer ‘may utilize the same during the trial by means of subpoena duces tecurd® Through this mode, the. canralontiat tae what is the nature and probative: dail taclietimeee tery evidence in the han at enabling: properly proparo for any contingency during the trial. ‘of tho caso. in controversy, the lawyer may T0¥e action is pending to order said to submit to a physical or mental eraminatioy by a physeiany eis said that the object of trial in court ig that substan- tial justice may be done between the litigants. ita defendant is de ible of nity to test the truth of the plaintiffs allegst Tepes an fi at {Gaarerod sean czmmation by exper erro jie anni rBesvries based entirely upon the testimony of a plaintiffs and of_wit ‘of their own selection whose ‘ipso nar deve rom aaron PI 3 purpose of manufacturing evidence in their own favor. Imperial justice could not be expected in such cases at the hands of juries who were not permitted to know the truth and 28, See. 1, Rules of Court30 ‘TRIAL TECHNIQUE AND THE PRACTICE OF LAW whose sympathies were aroused by the recitation of sufferings which could not be controverted. To permit such a practice would be to encourage perjury and properly subject courts of Jjustice to public contempt. On the other hand, ifthe plaintiffs aim is meritorious, ifhe has sustained the injuries he complains of, he has nothing to fear from the most searching examination. His case will only be strengthened by it.” ‘Where the mental or physical condition of a party is in controversy, resort to this mode of discovery will not only be helpful to the lawyer in the preparation for trial, especially in the cross-examination of the adverse party, but will be decisive on the final outcome of the ease. Anticipating opponent's case Alawyer’s preparation of the ease is not complete without his being able to anticipate the opponent’s.case. He should be able to foresee what evidence his opponent has and wil ‘ant, as well as the authorities im his opponent's favor. Knowing this, the lewyer can plan his counter-strategy. & Bvidence. +) ‘The lawyer should know before-hand what evidence, both testimonial and documentary, is in the possession of or is available to his opponent. Knowledge of the. and Dative value of such evidence will provide seer % the Tawyer not only in the preparation of the evidence rap hls case, but alsoin marshalling the facts for the cross- ‘Geamnination of his opponent’s witnesses and in countering the latter's documentary evidence. Having a glimpse of the wit- nesses of the other side will provide the lawyer with the necessary weapons to destroy the testimony as well as the credibility of the witnesses, if not altogether in obtaining valuable admissions from them. Being able to foretell what authorities may be available tohis opponent, the lawyer can adequately prepare and gather SeWIGMORE, EVIDENCE (2nd ed. 1923) 2220. PREPARING THE CASE a his own authorities which are essential not only in countering the position or theory of the opponent but also in furthering his client's cause, These authorities must be gathered and analyzed before going to court if they have to be of assistance to the lawyer during and after the trial, the latter in the preparation of the memorandum for the convenience of the trial judge or brief in ease of appeal. © Counter-strategy. Having anticipated the opponent’s evidence and authori- ties, the lawyer is now in a good position to plot his moves to counter or defeat the strategy of the other side, In so doing, the lawyer may be able to block the presentation ofhis opponent's evidence or destroy such evidence by cross-examination or rebuttal evidence, always backed up by the necessary citations of legal provisions and judicial decisions. Under these stances, the Iawyer can always outmaneuver his opponent© Chapter IV * PREPARATION OF PLEADINGS Determining the cause of action "She isp Sth rosario end ay ‘oF wrong primary right or duty, constitute a cause of action. Stated brief ly, a.canse of action m: i ist of the right belonging” to the plaintiff, and some ‘act or omission dor Scilat by which Ui agit bos bem esied sb “aa + firot, the breach of iuty owing by one person to another; second, tho damage ro- sulting to the other from the breach. It is said that a cause of action exists where the legal rights of one party have been invaded by another? A.cause of action consists not only of the:right of the plaintiff, but of the wrong of the defendant; and in an action tb recover property, the right of the plaintiff consists in being entitled to the possession of the property whith is owned by him, and the wrong of the defendant consists in withholding from the plaintiff that which is rightfully his esmtally, the tar Satomi fre elements: (1) the right of the plaintiff, and (2) the violation of. 22 WORDS AND PHRASE 1016 (rst Seren, citing Vooder v. Baker, {89 NS. 186,160; Goodrich v. Alfred, 43 Atl 1041, 1049, 72 Conn. 257; Harvey ¥. Parkersburg ing. Co, 16 SE. 680, 581, 97 W. Va. 272, . Spot v, Campa, 3 NW. 279, 275, 42 Mich, 90, Chalmers v. Glean, 18 $.C. 489, 471 “MeCendloss . Inland Adid Co, 42, SB. 440, 451, 18 Ge. 966. 2 [PREPARATION OF PLEADINGS a such right by the defendants Its a acho gmieson of one party in viol Tegal rights of the other® X Example: A borrowed money from B. There is the right of B tocollect from A and the duty of A to pay B the loan. When the loan matures and.A does not pay it, A violates his duty to pay B and the latter’s right to be paid the loan, thereby giving rise to a cause of action in favor'of B ageinst A. A means ‘an injary‘]It is simply the means by which the obli- ‘gation or the corresponding action is effectuated.* Tn the case of the loan, upon its maturity and the failure of the debtor to pay, the remedy of the creditor is an action for collection of a sum of money. A situation may arise when more then one remedy is available to the plaintiff. Hence, a decision as to whother or not to avail of all the remedies, or only to choose the proper one, has to be made. Thisis especially co when there are factors which render the choice or decision racial. Example: In a contract for the sale of a motor vebicle on monthly installments, there is a provision that the eller has the right to collect the installments in arrears or to rescind the contract and repossess the vehicle, in the event that:the buyer fails to comply with his obligation to pay the installments for the price. If it happens that the buyer, after paying several monthly insiallments, defaults in the payment of the balance of the price, the amount of the installments already paid may ‘be substantial, but at the same time, the vehicle has already ‘been so much depreciated that it would be beneficisl or advan- tageous to the seller just to insist on the collection of the remaining balance of the priee instead of rescinding the con- Sxfa-a0 Sugar Central Coy Ine. v: Barros, 79 Phil 666 Remitere v, Vas. Yulo, GR, No, 119751, February 25,1966, 16 SCRA. 251; Caseias v, Rosales, G.R No. -18707, February 28, 1991, 19 BORA 462, Talissionary Soe. of ME, Church v. Bly, 47 NEE, 81, 589, 88 Ohio St, 406. Prost v. Witter, 192 Cal. 421, 426, $4 Pac. 705, 707, 84 Am. St Rep. ey% ‘TRIAL TECHNIQUE AND THE PRACTICE OF LAW tract of sale and repossessing the vehicle. If the seller rescinds the sale, he may be required to return the amounts paid, unless there is a stipulation that the amount already paid shall be considered as rentals for the use of the vehicle. At the same time, when he opts to rescind the sale and to repossess the vehicle or foreclose the chatiel mortgage on the thing sold, even if he will not be required to return the amounts already paid, the seller may no longer eollect the remaining balance of the purchase price.’ In such a ease, a choice of remedy has to be made. Example: X was a passenger in a jeepney which was bumped by a delivery truck. As a consequence, X died, His next of kin has the right to recover damages from the driver and owner of the passenger jeepney under the contract of carriage, and from the driver and owner of the delivery truck for quasi- delict under Article 2176 of the New Civil Code. OF course, it will depend upon the negligence of the drivers and the owners of the vehicles involved and their consequent liability. X's next of kin has the choice of proceeding against the drivers of the Jeepney and the cargo truck, at first criminally for réckless impradenco, and, afer conviction, subsidiarily against the owners of the vehicles, or of filing against the drivers and the ‘owners of the motors vehicles a complaint for recovery of damages as an independent eivil action." In the latter case, the plaintiff may implead the drivers and owners of the motor vehicles as alternative defendants"? under alternative causes of action." naan _ “Pleadings” are the ie complaint, the-answer, the counterclaim, the cronsclaim, the reply the third-party complaint the fourth- party complaint, and other similar its." However, under the rales of ha eniy pleadings slows ts *antinle 1484, New Civil Cade. 2°Artele 29, Now Civ Code Rule 5, Se. 19, Rules of Cour PR 8, Sec. 2 Rules of Cort Rule 6, See. 2 Rules of Court. PREPARATION OF PLEADINGS 35 a 1 bo ed areshe complain and iz anstandtt has a cross-claim or 4 comy counterclaim, the satire Tir be asserted in the ee Swill be be ase barred." ‘Tho parties are bound te file written allegations of their seapectineSniy an densest Fer to apprise the UP. ~ of their rival claims in the judicial controversy submitted for ‘rial and decision. ® form, a plain, concise and dit ion which the party pleading relies for his claim or del as the cece may bo,omiing the statement of mers sridentiay » fase Ta sar fr orotate, Salwar -AKahould be used, and verbosity should be avoided 1 ment must be stated directly ‘positively: not aang tatively, indeferentially, or in a conjectural or qualified fornd™> For purposes of pleading, thoro is nothing like » clear and ‘concise statement which is direct to the point. The key point 4is that the judge is a busy man and has no means to know what i in controversy except through the statements contained in the pleading. . de Capttontanar tine Bach, shall contain a caption setting forth the samme of Sa hl of tn cl, te He nab Zssigned, and a designation of the pleading Tn the(Gomplaint, the title of the action shall include the bi ‘Bat in oilier plesdings, it shall be sufficient if the name of the first party on each side is stated Mgee, 2, Rule on Summary Procedure yfentholetom Co,, Ine. Mangalimen, 72 Phil, 624, 428, citing Sutherland's Cote, Pleading, Practice and Forms, Sev. 63. ‘Gauls 6, Sec 1, Rules af Cours Gutheriand Code, Pleading, Practice and Forms, Ses. 89; Alsua v. Johnson, 21 Phil 908, 961 Rule 7, Seo. 1, Rules of Court.6 ‘TRIAL TECHNIQUE AND THE PRACTICE OF LAW ‘with an appropriate indication when there are other parties.'* What is used to indicate the other parties is the abbreviated form in Latin, et al., meaning “and others."® The nemes of the parties in an action need not appear in the body of the com- plaint, as it is not good practice. It is sufficient that the names are stated in the title © Paragraphing) The pleading has to be divided into paragraphs so num- bered as to be readily identified, each of Wi ‘a statement of a single Set of circumstances so far as can be done with convenience. A. ph may be referred to by its numnber in all succeeding pleadings. | ____, The intention of this requirement is to provide a lo jpethod in the statement of facts, Facts alleged in a paragray ood not be repeated in the succeeding paragraphs, but may. be referred to by the number of the paragraphs wherein they are contained.® This is not only to inake it convenient for the court to understand the allegations of a particular pleading, but also in relating the came to the othor ploadings. 4. Headings ‘When two or more causes of action are joined, the state- ‘ment of the first shall be prefaced by the words “first cause of action”, the second by “second cause of action”, and s0 on for’ the others. When one of more paragraphs in the answer are ‘addressed to one of several causes of action in the complaint, they shall be prefaced by the words “answer to the first cause of action” or “answer to the second cause of action” and so on; ‘and when one or more paragraphs of the answer are addressed to several causes of action, they shall be prefaced by words to that effect. ‘Rule 7, See. 2, Rules of Cour plack’s Law Diionay, Sd ed, 682 “calinbas v. Pagel, 40 Pil 566, 569, Rule 7, See. 8, Ralee of Court Lo Sul v. Wyatt, 6 Phil 496, ule 7 Se. 4 Rales of Cour [PREPARATION OF PLEADINGS a al Every pleading of « party represented by an attomey sholl be eigned by at least one attorney of record in his indi- ‘vidual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address. Except when otherwise specifically provided by ‘rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney constitutes a cortifi- cate hy him that he has read the pleading; that to tho best of his knowledge,information, and belief, there is good ground to ‘support it; and that it is not interposed for delay. If a pleading 4s not signed or is signed with intent to defeat the purpose of this rule, it may be stricken out as sham and false and the action may proceed as though the pleading had not been served. Fora willful violation ofthis rule, an attorney may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matters are inserted:* The “cumplatac” is a facts constituting the plaintiff's cause or causes of action. It shall specify the relief cought, but it may add a gonral prayer for such further or other reliof a may be deemed just or ‘equitable. The names and residences of the parties, plaintiff) and defendant must be stated in the com) Tn stating the plaintiff's cause or causes of action, only ultimate facts mus be alleged. Evidentiary facts have no place Example of ultimate facts: In an action for recovery of possession of real property, it would be sufficient to allege that the plainti®? has been in possession of the property for a umber of years as owner, and haw-he came ta be in possession of the property particularly where the property is covered by a Torrens Certificate of Title in the name of a third person.” qua 7, Sao. 5, Roles of Court. Rule 6, Sec. 8, Rules of Court Dimon. Rural Progress Administration, GR. No. [-5768, January 26, 1952,8 ‘TRIAL TECHNIQUE AND THE PRACTICE OF LAW. Example of evidentiary faets: In the same action for recovery of possession, facts concerning the names of tenants, ‘the manner of cultivation, system of planting, and other details. are evidentiary. ‘The sufficiency of a complaint is tested on whether a SS ee lieged therein, if said facts were admitted or proved If the allegations in the complaint furnish sufficient basis by which sald complaint can be maintained, the same should not be dismissed." A complaint deficient in details with respect to the factual basis of each and every item claimed, but which defl-~ of.action, may be cured by means of a motion for a bill of pentistlnd®” Where the Coal Soar entertained a complaint, ‘te presumption is that the requirements of law hed beon fulfilled. Within the time for fling a responsive pleading, such as within the time to answer, 4 motion to dismiss may be fited ‘Bray of the pounds sumed In Soci oP Te, of Court When a defendant Sled his mation to dnmatae after he had filed his answer, he violated said requirement, and Sie inten wes pricy Beck” Any of the grounds for dismissal provided in Rule 16, copekcinacaise ath, viemakmemnetnn as cota defense, and a preliminary hearing may be had thereon as if a motion to disor had heen fled In so doing, the defendant minimize, if not entirely precludes, the plaintiffs. curing whatever defects in the complaint. Moreover, the defendant: can avail of said ground or grounds for a motion to dismiss and ‘paguze v. Oflada, G.R No. L17182, Soptember 30, 1963, 9 SCRA 120; Gala v. Montuya, G-R. No, L18674, September 80,1864, 12 SCRA 108, v, Arrasti, GR. No, 117089, July 31, 1962, 5 SCRA 748. *Sabafigan v. Manila Raflroad Company, G.R. No. 129889, July 17, 1960, 28 SCRA 772, ‘Tyigalv. Tobias, GR. No, 116860, August S1, 1961, 2 SCRA 1164, SING Tuaton & Co, Ine, v. Rafor, GR. No. L1S681, June 80, 1982, 5 SORA 478, Rule 16, See. 5, Rules of Cour, PREPARATION OF PLEADINGS 38 ‘tho same time raise his counterclaim against the plaintiff. This opportunity the defendant would miss if he filed a motion to ‘@ismise, tie granting of which would cause the dismissal of the 3 a 5 avOK ‘defendant if he files a motion to dismiss with counterclaim. In this case, ifthe motion to dismiss is granted, the complaint will bbe dismiseed and there remains in the record the defendant's, counterclaim which can still be ventilated. If the ground is improper venue, such ground must be yaised in a motion to dismiss and cannot be pleaded as an affirmative defense in the answer. Objection to improper venue is deemed waived not only by failure to set it up before the filing of the answer as provided by Soctions 1 and 5 of Rule 16 and Section 8 of Rule 15 of the Rules of Court, but also where the party objecting to the venue filed cross bills, such as a third- party complaint or a counter-claim which necessarily implied 2 submission to the jurisdiction of the court, although properly jurisdiction is not in issue, since only venue is defective™ The Cifference is crucial because jurisdiction is 2 matter of law ‘while venue fs merely procedural and is therefore eubjoct to agreement or waiver."* ‘Where the grounds upon which deferidant’s motion to dismiss are predicated are not indubiteble, the better policy ‘would be to deny the motion, without prejudice to tang such ‘measures as may be proper to assure that the ends of justice say be sorved* The rules, however, allow the court to defer the resolution of said motion until the doubts are removed but before final judgment" a pleading in which a defendant or other yrth the negative he relies.” The answer may contain admissions or ‘Pantranco . Yateo, GR No. 1-23090, October 31.1967, 21 SORA 668, 660. Senile Railroad Co, v, Attorney-General. 20 Phil. 528. Sxienpov. Tabefiar, GR. No. 116476, October 31,1961, 8 SORA 425. Sipale 16, See. 3, Rules of Court. _ Rate €, See. 4, Rules of Court.0 ‘TRIAL TECHNIQUE AND THE PRACTICE OF LAW fonses include fraud, statute of limitations or prescription, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptey, and all other matter by way of confession and avoidance.® Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived; except the failure to state a cause of action which may be alleged in a later pleading, if one is permitted,-er by motion for judgment on the pleadings, or at the trial on the merits; but in the last instance, the motion shall be disposed of as provided in Section 5 of Rule 10 in the light of any evidence which may have been received. ‘Whenever it appears that the court has no jurisdiction over the subject matter, it shall dismiss the action. i w this rule, which 1s otherwise called the ; yy claim for money)or other relief which qdefending party may have against an oppasing party. A counterclaim need not only diminish or defeat the recovery, sought by the opposing party, but may also claim relief even» ag he opposing party. Where theaiisier contains a counterclaim itis not deemed to be the last pleading in order that issues may be considered pute 6, See. 5, Roles of Court “Rule 9, See. 8, Rules of Court “Agar v. Provincial Board, GR. No. L-22583, February 27, 1968, 27 ‘SCRA 50, 62 Rule 8, Soe 6, Rolee of Court PREPARATION OF PLEADINGS a ‘oined; for a counterclaim is equivalent to-a complaint agSinst ‘the plaintiff, and itself calls for an answer. rere the issues Soe aa cian iseparaie from thoze posed in ‘the complaint, it is not absolutely necessary for the plaintiff to file an answer thereto.“ In the former case, the counterclaim may be.considere: ", while in the latter case, it is “compulsory”. | ‘or'may not be case and iis not doomed rolaim must be answered. But a compulsory counter-— dlaim need not be answered because the allegations of the complaint which give rise thereto serve to controvert the counterclaim itself. A is any claim hy ane party against a eo ext eis “Ging out ofthe teuisaction or occurrence that is the “Eubject matter either of the original action or of a counterclaim: therein. Such cross-claim may include a claim that the party ‘against whom it is asserted is or may be liable to the cross- claimant for all or part of a claim asserted in the action against the eross-claimant.t® is not proper where it contains no allegation that the subject matter thereof of arose out of the same trans- action between the eress-claimant and the plaintiff” ‘The propricty or impropriety of a cross-claim can be raised by means of certiorari where appeal isnot a speedy and adequate remedy that can bring about immediate relief from the effects ‘Sakon v. Baligod, GR. No, 1-10962, May 27, 1956, 17 SCRA 268. +pallacer v. Bernardo, GR. No. 121766, September 0, 1966,18SCRA ‘291; De Jesus v. J3. Toason & Co, , No. L-22184, Oetaber 20,1966, 18 SORA 403. “Rule G, Soe 4, Rules of Court “Rule 6, See 7, Rules of Court ©atingo v. Lason Surety Co, Ine, GR No, £-16082, February 29, 1064, 10 SCRA 506,2 TRIAL TECHNIQUE AND THE PRACTICE OF LAW of an order permitting the filing of the cress-claim inasmuch as the crose-defendant will have to wait, if appeal is to be availed of, until judgment is rendered not only in the action brought by the plaintiff but also in the very cross-claim filed bby the cross-claimant.“* But an order of the trial court denying permission to file a cross-claim is not merely interlocutory but final, inasmuch as it disposes of the cross-ciaimant’s motion and leaves nothing else to be done: A ty is a claim that/a defending ‘tothe action, called the third-party dei Fr {Sdomniy, abrogation 257 Sle setn respct of Bs quan, bog atingrcrany7 spect of his A made in the action against the third-party defenc such, a daim is known as the “Fourth-Party Complaint” and the person against whom the claim is being made is known as the fourth-party defendant. ‘Third-party complaints are allowed to minimize the number of lawsuits and avoid the necessity of bringing two oF ‘Hike sitions involving tae famae tubjech-matter. Bats i. ere defendant wate mnpleaDeP arin eBccenclds ‘to introduce 'a new and separate controversy into the action. A third-party complaint eannot be used as an excuse for indiscriminately fling any claim which a defendant may have against a third-party defendant, although unrelated to the main action: “Malinao v. Luzon Surety Co, Tne, OR. No, 1-16082, February 29, 1904, 10 SCRA 366, Rid SPRule 6, Sac. 12, Rules of Court, Rule 6, Soc. 13, Rules of Court, ‘StRepublie v. Ramos, GR, No.Ll8911, April 27, 1967, 19 SCRA 825. PREPARATION OF PLEADINGS 4s “Reply ‘A ‘reply? is-a pleading, the office or function of which is ‘to deny, or allege facts in denial or avoidance of new matters alleged by way of delenso'm the answer and thersby join or ‘make logue as to such new matters. Ifa party does not file such reply, all the new matvere olloged in the answor are deemed controverted.* ‘fin a reply a party-plaintiff is not permitted to amend or change the cause of action as set forth in his complaint, there {is more reason not to allow such party to allege @ new and additional cause of action in the reply, otherwise, tho series of pleadings of the parties could become interminable. ‘A verified reply can be used to deny specifically under: oath the allegations of usury in the answor in order to avoid fan implied admission of such allegations under Rale 9, Sec: 15 Rules of Court. ‘The same purpose is served when an answer pleads an actionable documents whose genuineness and due execution are deemod admitted if not denied spesifcally under oath. Amended and Supplemental Pleadings Pleadings may be amended ling or striking out an allegation or the name of oF by correcting a mistake {etic na ofa pay oraistaen or aoe llegation. oF description in any other respect, so that the actual merits (df the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. When any pleading is amended, a mow copy of the plead. ing, incorporating the amendments, which shall be indicated” by appropriate marks, shall be filed with the clerk of court. ‘Upon motion of a patty, the court may, upon reasonable notice and upon such terms as are just, permit him to serve ‘SSgale 6, See. 11, Rules of Cour Sanaya. Palaroan, OR, No. 127090, November 26, 1970. 86 SCRA 97 pale 10, See. 1, Rales of Court ‘Ségule 10, Soe. 7, Rules of Cour“ ‘TRIAL TECHNIQUE AND THE FRACTICE OF LAW supplemental pleading setting forth transactions, occurrence cr events which have happened since the date of the pleading sought to be supplemented. If the court deems it advisable that the adverse party should plead thereto, it shall so order, speci- fying the time therefor.” The admission or non-admission of 2 supplemental pleading lies in the sound discretion of the court before which its admission is sought. ‘Whenever possible the amendment of a defective pleading should be allowed, but when it appears on the very face of the complaint that the court has no jurisdiction over the-subject matter of the case, amendment of the complaint could not be allowed so as to confer jurisdiction upon the court, since the court must first acquire juriedietion over the case in order to act validly therein.® a —_— a, In order that the court may be apprised of the rival clams in a judicial controversy submitted for trial and decision, the ‘parties are bound to file written allegations of their respective claims and defenses, and these written allegations constitute” “The pleadingé of he partiea* For the plaintiff, his irst pleading is the coniplaint, and for the defendant, the answer. As far as the court is concorned, this first pleading gives it the fist impression of the party and his counsel. To create a good impression, which is the first, of the court, the party must put his best foot forward, so to speak. ‘This requires a careful preparation by a skillful practitioner ‘who should display clarity, conciseness and forcefulness, if not pale 10, Sec. 6, Rules of Court. British Trader's Insurance Co., Ltd. v, Commissioner of Internal Revenue, GR. No. 1-20801, April $0, 1964, 13 SCRA 719 ‘Gaspar v. Dorado, GR. No. L-17884, November 28, 1985, 15 SCRA aa, The Mentholetum Co, Ine. Mangaliman, 72 Phil. 524, 529, citing 4 Suthorland’s Code Pleading, Practice and Forme, see 83: Milliken v, Westar Union Tel, Co, 110 NY. 403, 18 NE. 251, PREPARATION OF PLEADINGS 6 style and elegance altogether, inideas and form. Of course, this, will dopond upon the training and experience to which the ‘practitioner hes been exposed and from which he has presuma- ‘bly benefited. B. Sufficient Teesway for presentation of evidence A carefully prepared pleading has also the advantage of. affording the party enough elbow room forthe presentation of his evidence. Evidence is the ens,samcio of Court, of ining in a judici —_ ame Evidence is admissible when it west ‘As one authority on the subject puts it, to.determiy relevancy of evidence, the pleadings of the parties be examined for the purpose of asc i the i a familiar proposition that the Gridence must be confined to the facts put in issue by the pleadings. . Considering these elementary principles, it can be said that a well-prepared pleading can provide a broad scope in the, presentation of evidence for a party, not to mention flexibility which is necessary in the course of the trial on the merits. ‘Admissions made by the parties in the pleadings, or in the course of the tral or ether proceedings donot require proof» fand can not be contradicted unless previously shown to have ‘been made through palpable mistake A pleading which is not well thought of and is not well prepared may coataia admissions which can be fatal or disas- frous to a party. This includes other proceedings taken in the pute 198, Se, 1, Rules of Court gule 128, See §, Rules of Cours. ‘JONES, COMMENTARIES ON EVIDENCE, VOL. 2 sae) Sigule 129, Sec, 2, Rules of Court Ste. Ana v. Meliwat, GR. No. Le 29023, August Si, 1958, 24 SCRA 1018.6 ‘TRIAL TECHNIQUE:AND THE PRACTICE OF LAW ‘case, such as motions, petitions, applications, deposition affidavits or other documents filed in the case. Such ‘admis: sion can be used os evidence against the party filing said pleading or document in the case. Even if such pleadings are superseded or amended and are considered to disappoar from the record as judicial admissions, any statement contained ‘therein may be considered as an extra-judicial admission and may be taken into consideration by the court if formally offered in evidence.* . 5 MORAN, RULES OF COURT 64 (2980) Lucio v. Caluptan, 27 Phil. 148; Bastide w, Mensi, 68 Phil. 168 Chapter V PRE-TRIAL ‘compromise for and in behalf of-his client. One u Une objectives of pretrel prosodire i to tae ths i GGt.of the realm of surprise and manc primarily i ‘tomake certain. is "REeeSeary to the disposition of a cause are-properly-raised. To seers tho clement ofsurprize, parties are expected 2odiselage at a pre-trial conference, all ‘issues of law and fact/which they intend to xaise at the trial, éxcept such.as may involve privi- leged or impeaching matter. the pre-trial conference, the court shiall make an Frsdox @hich rota. the action taken x the coforence, the ‘amendments allowed to the. pleadings,.and-the- agreements “American Insurance Company v. Manila Port Service, GR, No. L- ‘27776, January 81, 1968, 22 SCRA 489: Saulog v. Custombullt Manufactir- {ng Osrporation, GR. No. 1-29612, November 16, 1968, 26 SCRA 1. "Province of Pangasinan v, Peliso, OR. No. LAGSI9, October 30,1962, 6 SCRA 209, ‘American Insurance Company v. Munils Port Service GR. No, I> 27776, January 8, 1983, 22 SCRA 482. ‘epermanent Conercte Produts, Ine. v, Teodove, GR No, L-29786, [November 29, 1968, 26 SCRA 232, a“ ‘TRIAL TECHNIQUE AND THE FRACTICE OF LAW made by the parties as to any of the matters considered, Such order shi issues for triat’to those not disposed ofby admissions ox agreements of eaunsel, and whon entered, controls the subsequent. course of the action, fanless/smadified before » ‘rial to prevent manifest injustica® ‘Bearing in mind the importance of the matters to be taken ‘up during the pre-trial conference and their influence in determining the course of the trial on the merits, not to mention the outcome of the case itself, pre-trial should not be taken lightly and its handling should not ke left. ‘hands. It should also be borne in mind ana ee ‘Gfamined are the documentary.evi- dense testimonies of witnesses jn the form of affidavits » stagione is any. Tr a GeRHaL Da as prepared, and more so if there ig a trial brief itself, this will greatly facilitate the preparation.of the strategy for the pre- trial of a case. ‘The idea is to give the lawyer not only the feel of every aspect of the case; but a mastery of the figs and thelaw in order to enable him to formulate and decide: should ‘be brought out during the conference. The ¢han to the possible outcome of the-ease, whether for or against the party,» have to be evaluated at this stage so as to be ready when the cau suggests. amicable gellemé. Bren the values ia- volved must be determined before hand. This will enable the "Rule 29, Sec. 4, Rules of Court. Taleon v. Secretary of Public Works and Communications, GR. No L231, May 16, 1867, 20 SCRA 68. "Philippine National Bank v. Pineda, GR. No. 1-28605, August 29, 1969, 29 SCRA 200, PRETRIAL 4 lawyer to_advise - ‘ly the client at this early stage what to expect and how to reactor even make a counter-ffer atthe right moment during the conference. For the lawyer, he should know st this time what.admis- siona a make an whet aries to reques: fom the oer party, and also the exisit and nature of the stipulations which ‘he can with the opposite-party. The determination formulation, should be-carefully-pre- ‘order to gain.an upper hand in the case Above all.-pfajiaredness will afford the lawyer the luxury of confidence and even an appearance of cooperation with the court, not to mention the respect that it will command from the bench. With such mastery of the details of the case, the lawyer ean show all candidness which can earn the trast and respect of the court and gain substantive and procedural advantage for the client. “Matters taken up at the pre-trial stage ‘The parties and their lawyers are directed by the court ‘to appear at a pretrial conference to consider the following: £\1) The possibility of ax amicable settlement or of a sub- mission to arbitration; S 2) TheGimplification of the issues; 3) The necessity or desirability offsmendaents to the pleadings: | & 4 The possibility of obtaining’Stipulations or ajusis- sions of facts and of documents to avoid unnecessary proof; W\5) The limitation of the numbey-st Witnesses; Die) Thefidvisability 6F3 preliminary reference of issues to a commissioner? On Sach Gther mater. a8 may aid in the prompt dis- position of the action.* While it is eaid that the rele which governs pre-trial conference in this juriedietion does not expressly authorize the Seale 20, See 1, Rules of Court50 ‘TRIAL TECHNIQUE AND THE PRACTICE OF LAW reception of evidence on the merits of the case upon failure of the defendants to appear at the pre-trial conference, it should be noted, however, that the rule does not prohibit such proce- Gure.’ The absent party can either be declared as in fault or non-suited as has been eailier intimated. Binding effect of pre-trial order After the pretiial, the court shall make an order which recites the action'taken at the conference, the amendments allowed to. the. pleadings, end the agreoments made by the partios asito any of the matters considered. Such ordor shall mit thatestibs for trial to those‘ not disposed of by admissions ‘or agreements of counsel and said order, when entered, con- trols the subsequent course of the action, «itiless modified before zal to prevent manifest. injustice.” ‘The determination of issues a a pre-trial conference E33) / ‘the consideration of other questions -éh. ap Where a gompromise agréimién} was entered into by the parties at the pre-trial stage, the judge in one case correctly refused ta declare eorparate representation invalid, it appear- ing that the hatter of eorporate remresentafiah in thé-pre-trial ‘was not objected to by-the.other party and that it was not.the controlling consideration in the contract; and further, the compromise agreement was subsequently ratified by the eor- poration. ‘Proving of Pangasinan v! Psliso, O.R.Na, LGSL9, October 20, 1962, 6 SCRA 269, 302. Rule 20, Sec. 4, Rules of Court “Pemament Canerete Products, Ine. . Teodora, GR. No. 1-29788, ‘November 26, 1958, 28 SORA 332, Radiowealth Trading Corporation v. Abastilas, GR. No, 27022, May 29, 1970,'33 SCRA $3, Chapter VI PREPARING CASE FOR TRIAL Preparedness — winning half the battle In handling a caso, as in waging a war, it is said that ‘Walf the baile Wom. A little known fact in the practice of law is that cases are practically won in the quietness of a law office. What is shown during the trial in the courtroom is actually the product of days or weeks, if not months, of preparation in the lawyer's office. Ask any experienced trial lawyer the secret of success in the handling of a trial and more than likely the answer will he ‘horoogh preparation of the cave fir teal" There ho fa trial lawyer. The trial lawyer is @ “Graffsmian and it he 1 20 aieplay good cratsmanship during the trial, he must have prepared his case for trial with painstaking attention to detail. Thorough preparation entails a fall know!- odge of the law and facts of the case ‘As one author said, “by and large, law suits are won by just one thing — industrious, intelligent, thoughtful prepara tion? : ‘Addressing the Chicago Ber Association in 1980, Emory R. Buckner, a great New York trial attorney, said: *.. If Lwere a dient arid knew as much about the trial of cases as I have learned as a lawyer, 1 would rather have a wholly inconspicuous and utterly unknown man of only modicere ability who would prepare the case, who would exhaust every possibil- IRICHARDSON, JAMES R, ESTABLISHING A LAW PRACTICE 42 988) STRACY, JOHN EVARTS, THB SUCCESSFUL PRACTICE OF LAW 147 gan. aEa TRIAL TECHNIQUE AND THE PRACTICE OF LAW ity of finding out all the facts that are relevant, than to have some very well known and very astute and lever and capable forensic orator, who went in as so many of our specialists and celebrities do, with no particular preparation except to pick things up as they develop.” Judge Daniel F. Cohalan, who was able to observe foren- sic success through many years of study of attorneys while sitting as a trial judge, said in an address delivered in 1924 tothe Association of the Bar of New York on the subject of “How Not to Try a Case”: “Itis axiomatic, although somewhat contradic- tory, that a lawyer should not wait to try his case ‘until he gets to court. Most of the work to be done in 2 case must be done before a man comes to court, and more cases in the court are won out of court than are won in it, in the sonse that in the vast majority of cases the verdict goes to the side which is pre- pared, If genius be the infinite capacity for taking pains, so is that man master of his case who has prepared and prepared and prepared. I hazard the assertion that preparation is that which nine times in ten wins or the lack of whiich loses a case. More cases are won by the work of preparation than in other way, and likewise more cases are lost by lack of preparation than in any other way. Therefore, I would lay down as the major warning to a man who was ebout to try a case not to attempt to do 60 without preparation — preparation as complete, as methodical and as thorough as possible.” Conferring with witnesses A lawyer should not present a witness on the witness stand without first conferring with him. Certainly, conferring with a witness does not mean fabrieation of evidence as some ‘Quoted in TRACY, JOHN EVARTS, THE SUCCESSFUL PRACTICE OF LAW 148 4947). ‘Quoted in TRACY, JOHN EVARTS, THE SUCOBSSFUL PRACTICE OP LAW 148149 (1947, PREPARING CASE FOR TRIAL 53 academicians mistake it to be. Firstly, the lawyer should find out whether or not the proposed witness Imows anything about the case on trial. Otherwise, it would be useless to present any person on the witness stand who knows nothing about the case. ‘Todoso would cause the lawyertto incur the court's ire. Secondly, if the witness knows facts about the case, it is necessary for the lawyer to know the extent of such knowledge and also how to approach the witness in the formilation of his questions in order to avoid any communication gap. It should be borne in mind that most laymen are not femiliar with court proce- gure, especially the form of the questions that are allowed uring the trial. a. Refreshing the witness’ memory — Asin most cases, ‘the trial comes up long after the incident subject matter thereof hhapponed. The facts concerning the incident are not the only things that occupy the mind of the witnesses. There are 80 many other things that take place between the occurrence of the incident and the date of the trial so much s0 that there is, a need to refresh the memory of the witnesses. It is usually close to impossible to just let the witnesses recall the facts on ‘the witness stand, especially in an unfamiliar atmosphere, with all the eyes of the crowd present in the courtroom focused on the witness. b. Finding strength and weakness —While conferring with the witnesses, the lawyer will be able to find out the strength as well as the wealmess of their testimonies. This will enable the lawyer to determine whether or not to present a particular witness during the trial. Should a lawyer decide to present certain witnesses, he will be in a position to decide on the order of their presentation, bearing in mind the saying that “first and last impression last™. In other words, witnesses whose testimonies are not s0 impressive can be presented after an impressive witness who should be presented first and before ‘another impressive witness who should be presented last. OF course, the chronological order in the happening of events should as much as possible be observed so 25 not to confuse, but rather make the facts easily understandable to the judge. While the strength of their testimonies should be ex- ploited to their allowable limits, the weaknesses of their tes timonies should be explored with the end in view of finding ‘background or collateral facts which can help strengthen them. ‘These weaknesses may be merely apparent then real as theyws ‘TRIAL TECHNIQUE AND THE PRACTICE OF LAW may be due to seeming failure in perception or inability to bring out other facts which are material to the case but which the ‘witnesses in their lack of knowledge of evidence may consider inconsequential. Moreover, these areas of vulnerability should bbe anticipated as points which an opposing counsel worth his salt will. pound on to destroy the witness’ testimony. c. Avoiding communication gaps - The procedure of question and answer during the trial is certainly out of the ‘commen experience of the layman who happens to be a witness in a case. Because of his unfamiliarity with the form of the ‘question, the witness, who merely wants to tell the truth, may not be able to grasp the full import of the question, thereby causing him to give an unresponsive answer. Without adding to or subtracting from the knowledge of the witness, the lawyer should confer with the witness before trial even if only to familiarize the witness with the form of questions that will be asked and the form of the answers that should be given. This obligation the lawyer owes not only to his client and the witness, himself, but also to the court, 4. Articulating ideas proparly—The witness may naw the facts of the caso as he may be an eyewitness to the incident. But he may not be able to relate in an intelligible manner what, he perceived. This may be dne not only to his inability to determine what is material and important to the case, but also to his lack of training or experienee in articulating or express- ing those facts. One cause may be the unfamiliarity on the part of the witness of such legal terms as may be needed to convey ‘tho facts or ideas which he hes perceived. In this connection, it is the duty of the lawyer in a sense, to educate the witness with the legal terminology and to impress upon him the sig- nificance of those terms. ©. Manner and attitude in courtroom — The witness must be briofed on how to behave in the courtroom. Aside from the basie rules of courtesy, he must show candidness and spon- taneity while on the witness stand. While answering the ques- tions of counsel, he should face the judge and should talk in an audible voice. In answering the question of counsel, he should add the word “sir”. Addressing the answer to the court, he should add the word “Your honor”, The witness should give brief and concise answers which are direct to the point. Evasive answers should be avoided. The witness should dress mod- estly, and should avoid loud colors, PREPARING CASE FOR TRIAL. 55 £, Familiarizing with procedure and courtroom at- mosphere — Ordinarily a witness is not familiar with the court procedure and courtroom atmosphere. Even if a witness knows the facts.upon which he is about to testify, when ho is in the courtroom he may feel s0 ill at ease/disoriented that he at times gets rattled or confused. As a result, he forgets what he is supposed to remémber and to relate to the court. To remedy ‘this, the witness should be asked to go to tho courtroom at least thirty minutes before the start of the trial in order to enable ‘him to look around the place and get used to and/or be familiar with the atmosphere. In other words, the witness should be given a chance to get a “feel” of the courtroom before the ‘hearing begins. * This will also give the lawyer an opportunity to better orient the witness about the court procedure which he briefed the witness about during the conference in the lawyer's office. At this time, the lawyer can now point to the witness the particular places to be occupied by him,the judge, and the lawyers during the trial, as well as the public who will be attending the hearing. In this sense, the witness will have an. actual view of what he can expect at the time that he is called to the witness stand. With such prior knowledge, the witness will be able to acquire sufficient confidence and will be more at ease during the trial. ing down of notes during the conference It is e good habit on the part of the lawyer to take notes during his conference with the witnesses. He cannot rely entirely on his memory, no matter how reliable he eonsiders it to be. One should remember that memory ean be treacherous. In taking down notes of the important points brought out during his conference with the witnesses, the lawyer can prevent any oversight or forgetting the important points which ean be essential in the preparation and outcome of the case. Such notes can always be a useful reference to go back in the prepa- ration of the pleadings and trial brief. Advising the client to be candid and frank with lawyer During the conference with the lawyer, the client should, be reminded to be candid and frank with his counsel. The client should not keep anything from his lawyer, whether favorable56 ‘TRIAL TECHNIQUE AND THE PRACTICE OF LAW or unfavorable to his case. The lawyer is entitled to know every- thing about the case ~ the strengths and weaknesses of the client's cause. Anyway, as far as the client is concerned, he is protected by the confidentiality of the relation which he has with his lawyer. On the part of the lawyer, he should know not only the strong points of the case, but also the weak ones, If the client does not reveal to the lawyer the weak aspects of the case, itwill be disastrous if these weak aspects are brought out by the opponent during the trial and the lawyer is caught flat- footed. Ibis always advantageous for the lawyer to know these ‘weak points ahead of time so that he can make the necessary preparation to minimize, if not to entirely counter, the effect ofthe same. In other words, it will be to the common advantage of the client and the lawyer if the former is frank and candid to the latter. Review of testimonial and documentary evidence At this stage in the preparation for trial itis now oppor- tune to have a careful review. of both the testimonial and documentary evidence supporting the client’s case, as well as those for the opponent. A proper evaluation should now be had and the necessary steps should be taken to strengthen the lient’s evidence, especially in anticipation of the strong points of the opponent's evidence. Such review is elso,an antecedent to the preparation of the trial brief. Trial brief a. Nature and purpose — A good trial briefis a complete orderly digest of the factS, pleadings and law which enables the ‘aitorney to proceed through each stage of his-introduction of proof ina smooth confident manner with the solf-assurance that ho has not left part of his case in the office and that he ‘will not fail to prove a material part of his ease.* Note that it is the guide of the lawyer, a sort of “fight plan”. It is not to be filed in court. Otherwise, to use another figure of speech, it would reveal all the aces of counsel to the opposing party. b. Contents — A good trial brief must contain the follow- ing: 1) general outline of the case; 2) brief narration of the facts; 3) summary of the pleadings - both sides; 4) applicable author'- ‘RICHARDSON, JAMES R. ESTABL 358. (G A LAW PRACTICE 55 PREPARING CASE FOR TRIAL cy ties - statutes, judicial decisions and commentaries; 5) points of facts to be established during the trial with corresponding testimonial and documentary evidence to support each paint; 6) list of witnesses and their respective testimonies; and 7) list of documentary evidence with their proposed morkings. Test of a good trial brief Byeey tral attorney Macte teal Bk feos hough they differ widely in form and content. Those with experience in court as an observer have noted-the atmmey who searches sadly hob ascent pe of papers on his desk, and then possibly holds up the trial while he phones his offices for an important paper. This attorney has the haphazard trial brief totally without plan or form which at times causes him to demonstrate publicly that he has not properly prepared himself for trial. In other words, this is the way how not ta prepare a trial brief’ ‘A good trial brief should enable a lawyer to go to tri smoothly within «few minutes of golng over the trial bret. Ln has a fresh knowledgo of wr of tho case, At ‘iat Hine, the lawyer has stil the full grasp of every detail of the ease which he is supposed to attend to. The idea isto pre- pare every small detail which has some bearing on the client's ‘cause. It should be in anticipation of the fact that after the case is is accepted by the lawyer and he has prepared the same for his client, it will take some time before the case goes for a pre- trial conference and for the trial on the merits. After the trial starts, it is to be expected that after the initial trial, the subse- quent hearings will be set month after month and the trial of the case may last for years. This is not the policy of the law, but such is that reality of practice in this country which every practising lawyer should confront himself. It is commendable that reforms such as day to day trials have been initially implemented to remedy this situation, Faced with such reality, it will be very hard for a lawyer to prepare the cage all over again each time he goes to 2 scheduled hearing. A well-pre- pared trial brief is his only insurance against a lot of waste of time and effort, against all these Woubles. Such an insurance Is the real test of a good trial brief RICHARDSON, JAMES R., ESTABLISHING A LAW PRACTICE 55 958),Chapter Vil PREPARATORY. STEPS FOR TRIAL Motion to set case for trial While the rules mandate the clerk of court to have a trial calendar for the cases that have passed the pre-trial stage’, it is advisable that the lawyer should fle a ‘the case ial as soon as the pre-trial conference is. over. Parentheti- 7, 48 Socn as the issues are joined after the filing of the last pleading, the lawyer should file a motion to set the ease for pre- trial. It is good practice not to wait for the court personnel to set the case for pre-trial conference. At times, the trial on the merits is set in open court upon the conclusion of the pre-trial. the trial on the merits{is)not set upon the the conclusion. of the pre-trial eonforencs, becomes indispensable for the law- yer to ask that the ease be calendared for trial on the merits because itis the practice of the court to deslare plaintiff non- suited and to dismiss motu proprio cases which have not been moving for at Teast six (6) months. It is also advantagaous for the lawyer to take the initiative in setting the case for trial so that he can take into account the open date in his own calendar so as to avoid any conflict which will necessitate a request for postponement on his part. ‘Subpoena for attendance of witnesses and for Production of documentary evidence Within 2 reasonable time before the date of the trial, the Iswyer should file a request for the issuance of a subpoena to compel the attendance of witnesses as well as the production of documentary evidence at the hearing. This is true with Rule 22, Soe. 1, Roles of Court 58 PREPARATORY STEPS FOR TRIAL 59 respevt to documents which are not in his possession or that of his client. Even if he has conferred with the witnesses and hhas examined the documentary evidence, it is to assure the lawyer of the appearance of the witnesses and the production of the documentary evidence at the trial ifhe files such request for the issuance of the subpoena which should be served within a reasonable time prior to the scheduled hearing. For the attendance of witnesses,a “subpoena ad cestifieandum” will suffice. A “subpoena duces tecum” will be needed for the production of documentary evidence? Notice to produce documents and real evidence If the writing be in the custody of the adverse party, he must have reasonable notice to produce it. If after sich notice and after satisfactory proof of its existence,he fails to produce ‘tho weiting, the contents thereof may be proved as in the ease of its loss. But the notice to produce it is not necessary where the writing is itself a notice, or where it has been wrongfully obtained or withheld by the adverse party.* ‘The giving of notice to produce prior to the trial has therefore two (2) purposes, namely: (1) if the adverse party complies with the request to produce, the party requosting can present the document as his evidence; (2) if the request is not complied with and after satisfactory proof of its existence, secondary evidence of the contents of the document can be proved as in the case of los. In the second case, the predicate for the presentation of secondary evidence is laid. Request for admission, interrogatories and depositions Before the scheduled date of the trial, the lawyer should also consider requesting for admission from the opposite party. Ta this case, he may be able to AV of any express or implied admission which will save him from the trouble of presenting ‘proof on the matter subject of said request.$ Rule 25, See. 1, Rules of Court. Bale 180, Sec, 6, Rules of Court ‘ule 25, Sec. 1, Rules of Court "Rule 26, Sec. 2, Rules of Court