Diokno On Trial

Techniouos and
Ideals o?,n,
Filipino Lawyer
THE PLETE GUIDE TO HANDLING A CASE IN COURT
r1
rl
Edited, u$abd and supplemenbd by

ii
ii JOSE W DIOKNO JOSE MANUEL I. DIOKNO
i
t
DIOKNO ON TRIAL
Techniques and Ideals
of the Filipino Lawyer
THE COMPLETE GUIDE

TO HANDLING A CASE IN COURT
JOSE W. DIOKNO
Edited, updated and supplemented by

JOSE MANUEL I. DIOKNO
Quezon City
Phitippines
2007
)
@ 2007 by Jose ilanuel I. Diokno
Rm. 116, Alumni Center Annex, Magsaysay Avenue
Unlversity of the Phillppines Campus, Diliman 1101, Quezon Clty, Phlllpplnes
Tel. +632 920-5132
All Rlghts Reserved.
No part of thls book may b€ usd or rcproduced in any manner or form without
p€rmlsslon by the author and publlsher, except ln the form of brief quotations
embodied ln crltlcal artides or r€views.
Cover Deslgn and tayout by Lahlee S. Taguba

Pllnted by Ralntree Trading & Publlshlng Inc.
Publlshed by the Diokno Law Center

Rm. 116, Alumni Center Annex, Magsaysay Avenue
Untversity of the Phlllppines Campus, Dlliman 1101, Quezon Clty, Phlllpplnes
ISBN: 978-971-93787-0-9
To my mother, Ka Nena, my wife, Diuina,
and my childrery Pepe, Laya, Abe, lnez, lulio and lan,
may you shine brightly, always.
To all those who knew and loved my father, Ka Pepe,

and stayed with him in those dark days of the Marcos
dictatorship may the universe rePay your friendship,
kindness, support and encouragement a thousandfold.
To all the members of the Free Legal Assistance

Group (FLAG), and all Filipino lawyers who have
remained true to the ideals of the profession,
may your tribe increase.
This book is also dedicated to the memories of

Ka Pepe Diokno, my mentor, guide and inspiration;
my grandfatheg Don Ramon Diokno;
my great-grandfather, Gen. Ananias Diokno;
and all the Dioknos who came before me
and showed the way.
jose Manuel L Diokno

CONTENIS
Table of Figures vi
Table of Checklists and Forms vii
Forewords
"The lndefatigable Advocate of Justice' by Ret. Chief Justice Artemio V. Panganiban
"The Lawyer as a Man of Truth' by Justice Romeo J. Callejo, Sr. xii
Preface: 'Toward a New Legal Ordef by Jose Manuel L Diokno xlv
Acknowledgments xvi
Curriculum Vitae of Jose W. Diokno, 1922-1987 xvtli
PART I
TRIAL TECHNIQUES AND IDEALS
CHAPTERl What is the Task of the Filipino Lawyer? 3
CHAPTER2 Techniques of Presenting Oral and Documentary Evidence
CHAPTER 3 The Seven Problems in the Presentation of Evidence 53
PART II
CHECKLISTS
Checklist 1 Processing a Case for Trial 79
Checklist 2 Outline of Evidence Rules 94
Checklist 3 Using Circumstantial Evidence 99
Checklist 4 Tracing a Missing Person 115
Checklist 5 Objections 117
PART III
TRIAL BOOKAND FORMS
SECTION l: CONTROL
Form 1 Retainer Record 121
Form 2 Things to Do-Facts 122
Form 3 Things to Do-Law 123
Form 4 Civil Docket 124
Form 5 Summary to Date 125
SECTION 2: PLEADINGS
Form6 - Theory126
SECTION 3: FACTS
Form 7 - Persons lnvolved 127
Form B - Fact Log 128
SECTION 4: LAW NOTES

Form I -
Law Notes 129
SECTION 5: M0TIONS
Form 10 - Motions 130
SECTION 6: DISCOVERY AND PRE-TRIAL

Form 11 - Pre-Trial Plan 131
Form 11-A - Discovery 132
SECTION 7: PLAINTIFF'S CASE

Form 12 - Case Chart 133
Form 13 - FactChart 134
Form 14 - Admissions 135
Form 15 - Listof Witnesses 136
Form 16 - Witness Guide 137
Form 16-A - Witness Notes 138
Form 17 - Statement Analysis 139
Form 18 - Exhibit Guide 140
SECTION 8: PLAINTIFF'S EXHIBITS

Form '19 - List of Exhibits 141
SECTION 9: DEFENDANT'S CASE

(Forms 12'18 same as Section 7 - Plaintiff's Case)
SECTION't0: DEFENDANT'S EXHIBITS

(Form 19 same as Section 8 - Plaintiff's Exhibits)
SECTION 11: TRIAL LOG

Form 20 - Trial log 142
SECTION 12: REBUTTAL

Form 21 - Rebutial 143
SECTION 13: TRIAL MEMORANDUM

Form22 - Argument 144
SECTION 14: EVALUATION

Form 23 - Evaluation 145
INDEX OF TOPICS T47
ABOUTTHE EDITOR 155

IABLE OF FIGURES
Cover: Jose W. Diokno in a court hearing

Frontispiece: Diokno leading a public demonstration shortly before martial law viii
1. Jose W. Diokno xviii
2. Diokno: ln public address xix
3. Diokno: Valedictorian rcr
4. Diokno: ln Senate proceedings )od
5. Diokno: ln court proceedings r<ii
6. Philippine BarAssociation (PBA) building before the earthquake 9
7. PBA building: Damaged southwest columns 9
8. PBA building: Damaged northwest side 9
9. Retainer Record (Form 1) 10
10. ThingstoDo-Facts(Form2) 12
11. Witness Guide (Form 16) 13
12. Evaluation (Form 23) 16
13. Things to Do - Facts (Form 2) with Senator Diokno's handwritten entries 27
13-A Senator Diokno's handwritten notes on lawyers from his office manual 28
14. Ramon M. Diokno, father of Jose W. Diokno 34
15. Case Chart(Form 12) 35
16. Civil Docket (Form 4) 36
17. Theory (Form 6) 38
18. Law Notes (Form 9) 40
19. Pre-Trial Plan (Form 11) 40
20. Witness Notes (Form 16-A) 42
21 . Exhibit Guide (Form 18) 43
22. List of Exhibits (Form 19) 43
23. Rebuttal (Form 2'l) 45
24. Arguments (Forn22) 45
25. Witness Notes (Form 16-4) with Senator Diokno's handwritten entries 51
25-A A page from the Trial Manual of Senator Diokno on Res lnter Alias Acta 52
26. Things to Do - Law (Form 3) 65
27. Things to Do - Law (Form 3) with Senator Diokno's handwritten entries 75
28. Senator Diokno's handwritten notes on confessions from his Trial Manual 76
About the Editor: Jose Manuel l. Diokno 155
TABTE OF CHECKTISTS AND FORMS
CHECKLISTS
Checklist -
1 Processing a Case forTrial 79-93
Checklist 2 - Outline of Evidence Rules 94-98
Checklist 3 - Using Circumstantial Evidence 99-11.4
Checklist 4 - Tracing a Mrssing Person L15-115
Checklist5 - Objections 717-118
FORMS
Form 1 - Retainer Record 121
Fom2 - ThingstoDo-Facts 122
Form 3 - Things to Do-Law 123
Form 4 - Civil Docket 124
Form 5 - Summary to Date 125
Form6 - Theory L26
Form 7 - Persons lnvolved 127
Form 8 - Fact Log 128
Form 9 - Law Notes 129
Form 10 - Motions 130
Form 11 - Pre-Trial Plan 131
Form 11-A - Discovery 132
Fom12 - CaseChart 133
Form13 - FactChart 134
Form 14 - Admissions 135
Form 15 - List of Witnesses 136
Form 16 - Witness Guide 137
Form 16-A - Witness Notes 138
Form 17 - StatementAnalysis 139
Form 18 - Exhibit Guide 140
Form '19 - List of Exhibits 141
Form 20 - Trial Log 142
Fom21 - Rebuttal 143
Fom22 - Argument 144
Form 23 - Evaluation 145
-i
IHE INDEFATIGABTE ADVOCATE OF JUSTICE
Foerwoeo ey CHrrr Jusrrcr Anreir,lto V. PeNcaNrsrN
arelv does a lawyer come across a practicaf experience-based handbook

that serves a thousand and one uses for effective case handling. Such a
rare find is this book, entitled Dl okno on Trial: Techniques and lileals
.tf the Filipino Lawyer (The Complete Guide to Handling a Case in Court).
Tapping into the wealth of the late Jose W. Diokno's extensive experience
-:r etidence and trial techniques, the update and supplemeni of Jose Manuel
.. Dokno vis-i-vis his father's earlier work is a highly useful repository
: r'aluable lessons on how best to prepare, monitor and handle flesh-
::rd-blood cases. Functionally, according to the late Diokno, that task is
:-. conr.ince the court that one's client is right. In this case, ihe lawyer is
.:i.ened to a salesperson.
This tome aptly opens with the elder Diokno's interesting story on how
:,'' rsin a case. According to him, three things are necessary: A good case, a
:.ro<J lawyer and a good judge. The first two, the lawyer could guarantee;
-::e third, he could not.
Having served on the Supreme Court for over 11 years, (I retired on 6

Jecember 2006), I can only stress the significance of the third ingredient.
:ndeed, good lawyers need good judges who are ready to follow the law
-rnd do justice. I must agree with the late Atty. Diokno, however, that having
: good iudge who is "good for you" at the trial stage is no guarantee for
',., rnning
a case on appeal. Thus, to win "a11 the way," he emphasizes the
:mperative of being a good lawyer with a good case that is backed up by
:roperly presented evidence.
As I peruse the different parts of the book, I am reminded of my own
-rsonal encounter with the legendary Senator Diokno.
Immediately after passing the bar examinations in 1960, I became an
,:ssociate in the law office of our then deary Dr. Jovito R. Salonga. One early
moming, Dean Salonga called me up at home to say that he was indisposed
and to ask if I could substitute for him in that morning's trial at the then Court
.rf First Instance of Pasay. Even if I knew very little about that inheritance
rd human rights forever emblazon the hearts and minds of all
Eyputing his father's thoughts in print, he shares, with generations
not been similarly blessed to have personally known the older
6e gift of wisdom and the wealth of insight that can come only from
advocate of justice.
fu dl triat lawyers, both the young and the ol4 the novice and the
this book is a "must read."
3lmary2007.
MIOV.PANGANIBAN
Chief ]ustice (Ret.)
Supreme Courf
I
TOWARD A NEW LEGAT ORDER
Pnerece sv rHe Eo[on, Jose MaNuer l. Drorro
y legal educationbegan as a young boy, when I would accompany

my father to court. Clad in a polo barong, proudly carrying his
briefcase, I would sit and watch the proceedings in fascination.
On several occasions, in the military courts at Camp Aguinaldo, I even
got to sit at the counsel's table. Watching my father in action, I never
got bored.
It was not until years later that I realized -when I chanced upon the
lecture that is now Chapter 1 of this book-that my grandfather, Ramon
Diokno, also took my father to court when my father was a young boy. I
can only imagine how Dad must have felt seeing his father in court. For
me, it was a revelation. When word would spread in the courthouse that
my father was going to appear, lawyers would postpone their hearings
and pack the gallery, clinging to his every word and gesture. V/hen he
would score with a witness, win a verbal tussle with opposing counsel or
make a point with the judge, a murmur of approval would spread through
the crowd. He had an uncanny ability to cut through the morass of legal
words and expose the heart of a legal issue, so that even non-lavryzers could
urderstand the point that he was getting at. He was not only meticulous
in planning and trial preparation; he could also think quickly on his feet.
In the span of a practice that lasted more than 40 years, my father

handled thousands of cases and appeared in courtrooms all over the
cor.mtry. Using foreign materials that he adapted and tinkered with to fit
Philippine conditions, he developed a system for handling cases involving
the use of a Trial Book and Checklists and Forms that he devised.
A Trial Book is a folder or a notebook (usually a three-ring binder)

devoted to the trial of a case. A good Trial Book saves time, ensures
thoroughness in preparation and planning, provides a system for monitoring
the implementation of tasks, boosts confidence, and improves the lawyer's
effectiveness and efficiency. Lawyers of developed countries often use Trial
Books, but the practice is not yet as common in the Philippines.
tdEf,s, forthe fust time, three lectures my father delivered
a Trial Book and how to use his Checklists and Forms. The
not only because they deal with a special topic but also
u*d them to express his vision of the ideals of the Filipino
dsin ftat deserves to be shared with Filipino lawyers of the
srceeding generations.
of this book is two-fold: First, to provide Filipino lawyers
od€te guide to handling court cases; and second, to share my
riin of the Filipino lawyer.
book is divided into three parts. Part 1 consists of the above-

lectures; Part 2 contains the trial Checklists; and Part 3,
f Book and Forms. I have included brief introduttions to each
1, 2 and 3) to place them in their proper context. Where
I have supplied additional information about persons or
lhat Dad mentioned in his lectures. Since the Rules of Court have
many changes since the 1970s, I have also updated the original
As much as possible, I have tried not to touch the contents of the

Llr< themselves, except for obvious erors in transcription, so the reader
r get rhe full flavor of Dad's words.
Dioktto on Tial: Techniques anil lileals of the Eilipino Lautyer is a

oplete and indispensable guide to handling cases in the Philippine
rmts. It is also my modest contribution to improving the delivery of legal
to the public.
W
-vies
l5lan:,ary 2007.
JOSE MANUEL r. DTOKNO

ACKNOWIEDGMENTS
f not for the support and encouragement of a few good people, this
book would not have seen print. The editor extends his sincere thanks
and appreciaiion to the following:
Mrs. Carmen I. Diokno, my mother, Chair of the Board of Directors of

the Jose W. Diokno Foundation, Inc., always a pillar of strength especially
in these uncertain times, for everything.
The Board of Trustees of the lose W Diokno Foundation, Inc',

composed of Mrs. Zeneida Q. Avancena; Ms. Maria Feria; Ms' Lynna
Marie Sycip; Ms. Maria Teresa Diokno-Pascual; Bro. Armin Luistro,
F.S.C.; Roel Landingin; Atty. Pablito V. Sanidad; the Executive Director,
Dr. Maria Serena I. Diokno; and the Corporate Secretary, Atty' Anthony
B. Peralta, for the publication grant that made this book possible and for
their continued encouragement and support.
Ms. Divina A. Diokno, my wife, for her valuable suggestions,

encouragement and sundry contributions; and my son, Pepe, for taking
my picture and helping me with the computer.
My sisters (in no particular order), Ms. Maria Socorro I. Diokno, for

her advice, for answering all my questions and helping me find Dad's old
forms; Ms. Maria Teresa I. Diokno-Pascuai and Ms. Maria Paz Diokno, for
their interest and enthusiastic support; and Dr' Maria Serena I. Diokno, for
her active involvement in this endeavor.
Ms. Fides Lim, for her guidance, encouragement and so many other
much-appreciated contributions to this book, and for all the work done
shaping, polishing, editing and proofreading the manuscript.
justice Ricardo L. Pronove, Jr.; Atty. Virgilio R. de los Reyes and Atty.
Anthony B. Peralta, for their advice, support and assistance.
Ms. Christiene Salve Demaisip, my very capable and elficient

legal assistant, for painstakingly digging up all those facts, figures and
authorities; Ms. Daisy Buenaventura, my dedicated and indefatigable
-crctarv, for taking care of the thousand and one things that all had to
tG dorre at the same time; Ms. Lydia Labong, my energetic courier, for
trmint down all those documents; and Atty. Jomini Nazareno, for
cnsting me in the preliminary stages of this project.
Bro. Armin Luistro, F.S.C., Bro. Bernie Oca F.S.C. and all the helpful
1rcple of the De La Salle Community, for their kind assistance and
sry?ort.
PHIVOLCS, DOSI for giving me permission to use the photographs of
tlr Philippine Bar Association building that appear in Chapter 2 of this
book; the Law Center of the University of the Philippines Law Complex,
for its assistance with regard to the transcriptions of Dad's lectures;
ad the Lopez Museum for allowing the use of Dad's photograph that
.ppears at the frontispiece of this book.
Jose Wright Diokno
1922-1987
Bor:r 26 February L922 at Manila, Philippines

to lawyer and later Supreme Court ]ustice
Ramon M. Diokno and Leonor Wright
Died 2:40 a.m. on 27 February 1987 at his home at
55 Third Street, New Manila, Quezon City,
of bronchogenic carcinoma
Married to Carmen Reyes Icasiano
Children
Carmen Leonor (Mench) Diokno Escay
Jose Ramon (Popoy)
Maria Paz (Pat)
Maria Serena (Maris)
Maria Teresa (Maitet) Diokno Pascual
Maria Socorro (Cookie)
Jose Miguel (Mike)
Jose Manuel (Chel)
Maria Victoria (Maia)
Martin jose (Martin)
Achievements
1940 Topped CPA Board Examinatior; with a grade of 91.18 percent
1944 Topped the Bar Examinationt with a grade of 95.3 percent
1954 Chairman, CPA Board Exam Investigating Committee, created by
President Ramon Magsaysay
1958 Member, Special Committee to Investigate Department of Finance
Anomalies
1960 Member, Special Committee to Investigate Bureau of Supply
Coordination Anomalies
2lanuary 7962 79 May 1962: Secretary of |ustice

. Investigated and prosecuted Harry Stonehill for tax evasion and
other crimes
r Fired by President Diosdado Macapagal
xviii
. -.l 1972: Senator
. Oil Industry Commission Bill
. Investments Incentives Act
r Export Incentives Act
I Revised Election Law
. Equal Pay for Equal Work Act,
which was passed unanimously
to curb racial discrimination in
American companies operating
in the Philippines, but vetoed
. "'{ Delegate, International Commission

of Jurists, Bangkok, Thailand
- -ri Delegate, lnterparliamentary Union
Conference, Ottawa, Canada
--ri Delegate, United Nations General Figure 2- ln public address
Assembly
i-r September 1972 11 September 1974: Political Prisoner

I Arrested on 23 September 1972, at his home at 12 Margarita
Stree! Magallanes Village, Makati, Metro Manila
Detained ai the Maximum Security Compound, Fort Bonifacio,
Makati, upon an Arres! Search and Seizure Order (ASSO)
Kept under solitary confinement at Laur, Nueva Ecija from 72
March to 11 Aprll1,973
a Never charged nor tried
a Conditionally released on 11 September 1974
.'j;-l 1987: Human Rights Lawyer, Patriot and Nationalist

r Founded and led the FREE LEGAL ASSISTANCE CROUP or
FLAG (197 4-1987), an association of lawyers from all over the
Philippines who render their services, free oI charge, to promote
the rule of law and respect for human rights in society
I Chair, Civil Liberties Union (1975-1982)
. Secretary Ceneral, Regional Council on Human Rights in Asia,
with consultative status with the Uniied Nations Economic and
Social Council (19 83-1,987 )
. Secretary Ceneral, Anti Bases Coalition (198L-7987)
. Convenor, Justice for Aquino, Justice for A11 or IAJA (1983)
. Member, Convenor Croup that projected Corazon Aquino as
presidential candidate (1984-1986)
1986, Chair, Presidential Committee on Human Rights
I Resigned on 23 January 1987, in protest of the massacre of
farmers at Mendiola
Principal Government Negotiator in Peace Talks with the National

Democratic Front
Education
1933 De La Salle College, Taft Avenue, Manila
Elementary School
1937 DeLa Salle College Taft Avenue, Manila
Valedictorian, High School
1940 De La Salle College, Taft Avenue, Manila
B.S. Commerce
Summa Cum Laude
7940-7941 University of Santo Tomas,, Manila
Second Year, Faculty of Law Figure 3. Valedictoian
Awards and Recognition

Lumen Sapientiae (Light of Wisdom) Award by La Salle Green Hills, 24
February 2006 (posthumous)
Jose W.Diokno Professorial Chair in Business Law and Human Rights, by

De La Salle Professional Schools, Inc. Graduate School of Business (DLS-
PSI-GSB), 24 February 2005 (posthumous)
Order of Lakandula with rank of Supremo, by President Gloria Macapagal

Arroyo, 27 Februaty 2004 (posthumous)
Plaque of Appreciation in recognition of his invaluable contributions

to Philippine jurisprudence, having authored numerous enlightened
legislation, for championing democracy and defending the oppressed, by
De La Salle High School Class of 1965, 3 March 1990 (posthumous)
Doctor of Laws Honoris Caus4 by the University of the Philippines, 10

August 1988 (posthumous)
Golden Jubiliarian Loyalty Tribute in recognition of his accomplishments
in life reflecting the ideals imparted by a La Sallian education, by the De
La Salle University, 6 March 1987 (posthumous)
)0(
Garsad Quezon, in recognition of his undying love of country and firm
-liei in the Philippines as a free and independent natiorL by the Local
C.-rvemment Unit of Quezon City, 1 December L986
naque of Merit as Most Outstanding Alumnus of the I aculty of Civi\

Lars, by the University of Santo Tomas Law Alumni Foundation, 1
-ptember 1984
fu1ue of Recognition for his exemplary dedication as champion of human

:i*hLs, by Municipality of Taal and Taal Civic League, 30 December 1978
Pla.{ues of Recognition by the Executive Training Institute of the Philippines;

-:-.-<htute of Electronics and Communications Engineers of the Philippines;
-aan Economic Society; |unior Philippine h'rstitute of Accountants, ]ose
i:zal College Chapter; Financial Executive Association of the Philippines;
il:irppine National Red Cross Manila Chapter; Philippine Association of
i.,:.:.t,,lrs Board; Manila Junior Chamber of Commerce; Chamber Furniture
:c::stries Philippines; School of Economics, University of the Philippines;
\t--:.iati Executive Center; Rotary Club of San Fernando, Pampanga; Rotary
C'.:b r-ri Makati North
I-:ques of Recognition by the Kiwanis Club of Tagbilaran; Young Men's

il:rstian Association of Manila; Rotary Club of Butuan City; Rotarians of
-:: Carlos; Manila Lions Club; Caloocan City Lions Club; Barasoain Lions
C::b: Rotary CIub of Makati West; Rotary Club of Sta. Maria; Walkers
C'-:b: Rotary Club of Intramuros-Manila; Rotary Club of Baliuag; Rota,y
C:.:b r-rf Cabanatuan; Maniia Jaycees; Rotary Club of Davao; Lions Club
:i Quezon City
?l:ques of Recognition
r..' the Integrated Bar of
::e Philippines and from
::e Quezon City Chapter,
C.:marines Sur Chapter,
r.uthern Luzon Chapter,
\5ra Chap ter and
i.:mpanga; Cagayan de Oro
1,:sociation of Practicing
.\:termevs; University of the
l:rilippines System College
-.: Lal' and Law Center;
\.-'ung Lawyers Association
ri Cebu; Practicing Lawyers
Association of Negros
Occidental; Women
Lawyers Association of
the Philip pines-Ne gr os
Occidental Chapter; Metro
Manila Trial Lawyers
Association; City Judges
Association
Plaque of Appreciation in
recognition of his role as a
true nationalist, dedicating Fgure 5. ln coul praceedings (ight)
his life to the rule of law,
defender of the oppressed, model and foremost Filipino Trial Lawyer, and
setting a standard of law practice worthy of emulation, by the Philippine
Trial Lawyers Association
PGEAPlaque of Honor as most outstanding senator for 1971, in recognition

of his brilliant record in the Senate in the task of legislation, a fiscalizer and
fearless parliamentarian, his relentless drive to uphold nationalism and
the rule of law and morality, by the Philippine Government Employees
Associatioo 9 December 1971
Plaque of Appreciation in recognition of his outstanding achievement

in the national interes! having sponsored and supported legislative
measures designed to provide investments to accelerate the economic
development of the country, by the Philippine Institute of Certified
Public Accountants, Negros Occidental Chapter, 29 March 1969
Most Outstanding Senator by rhe Philippine Free Press, 7967-797O; only

senator honored for four consecutive years
Post-Graduate Department of the School of Experience, by De La Salle

College, High School Silver Jubilee Class of 7937,z4March 1962
xxI
PART I
TRIAL TECHNIQUES AND IDEALS
"A lawyer lives in and by law; and there is no law when

-
society is ruled, not by reason, but by will worse, by the
will of one mon.
A strives for justice; and there is no justice when
lawer
men and women are imprisoned not only without guilt, but
without tial.
A lawyer must work in freedom; and there is no freedom
when conformity is extracted by fear, and criticism silenced
by force.
A lawyer builds on facts. He must seek truth; and there is
no truth when facts ore suppressed, news is manipulated and
charges are fabricated.
Worse, when the constitution is invoked to justify
outrages against freedom, truth and justice, when democracy
is destroyed under the pretext of saving it, law is not only
denied it is perverted.
-
And what need do our people have for men ond women
who would practice perversion?
Yet the truth remains true that never have our people had
greater need thon today for great lowyers, ond for young men
and women determined to be great lawyers."
- Jose W. Diokno
Letter from Prison
23 October 1972
WHAT IS THE TASK OF
THE FILIPINO LAWYER?
Jose W. Drorruo
ln June 1975, when Senator Diokno delivered this tolk to o group of lawyers
in Davoo City, the freedoms thot we are accustomed to simply did not exist. The
country wos ruled by one man, Ferdinand lAarcos, o lawyer turned dictator, who
declored mortial low on 21 September 1972 and remoined in power for the
next 14 years.
But hlorcos didn't just declare martiol law. "1," he ordered on 22 September
1972, "do hereby procloim that I shall govern the notion and direct the operation
of the entire government, including all its ogencies ond instrumentalities."l And he
did just that. After shutting down Congress and toking on the power to make lows,
hlarcos exercised all executive and legislative powers. He also exercised judicial
power, directly through military commissions thot he created to try civilians,z and
indirectly through his influence over the Supreme Court ond his power, under the
mortiol law constitution, to remove every member of the judiciory from lowest to
highest, at will ond even without cause.3 He took over the mass media and heavily
censored the news before releosing it to the public.4 He had people arrested by
the thousonds, violating their rights with impunity and without accountability.s
ln the face of such a regime, the law succumbed to the barrel of the soldier's
gun. As the Civil Liberties Union of the Philippines, which Diokno chaired, observed
three months later -
"These are abnormal times. The administration of justice is muddled.
The individuol hos to contend not only with the policeman but olso with
the soldier. The military arm moves as though in complete ignoronce
of such things os constitutional rights. The temper of the martial law
regime indicates disregard and o lack of concern for traditionol rights
so deeply cherished....
Our own time reveols thot when violence, intimidation and threats
put on the gorb of legality, people are induced to submission and timidity.
lvlony are lulled to the comfort of complacency and acquiescence. The
saddest thing thot has happened to our people is that too many of them
are either confused as to the real issues, or have taken the attitude of
indifference, or hove deluded themselves into believing thot the present
stote of affairs is ideal ond permanent."6
Diokno On Trial: Techniques and ldeals of the Trial Lawyer

While Senotor Diokno's tolk ostensibly focused on the presentation of evidence
in court, he used the occasion to plont o fundomental question in the minds of
the lawyers present: What is the tosk of the Fitipino lawyer when most of the
people ore too poor to even go to court? He ended by exhorting his colleagues
to examine the country's sociol and legal systems ond the legal profession itself
"...and seorch for the changes that must be mode so that the 95 percent of our
people who cannot afford a lawyer may be oble to attoin justice."
Originally entitted, "Presentation of Evidence," this talk wos delivered on

26-28 June 1975 in a forum sponsored by the Dovoo Chapter of the lntegroted Bar
of the Philippines (lBP). A tronscription of the talk appears in the book, Recent
Devetopments in Law and Jurisprudence: A Setection of Lectures Given at Various
GeneraI Law Practice lnstitutes 1975-1977.7
gathered to discuss the presentation of evidence. The first

e are
thing that we should ask ourselves is why we are presenting
evidence or, to put it another way, what is our task as triaV
lawyers? Many will tell you, our task as trial lawyers is to let justice
triumph. But functionally, our task as trial lawyers is to convince the court
tha!_og1ql!eq1 grlght. In short, we are a kind of glorified salesman selling
a product. If that is true, and those of you who have been in practice for
as long as I havp agree with me, then I think that the job of presenting
evidence beginY even before the client comes to the office.
I used to go along with my father when I was about twelve years

old. During vacations I would go with him whenever he had trials in the
provinces. I would carry his bag. In fact, they had a small chair reserved for
me behind the counselb table. I was never allowed, of course, to sit at the
counsel's table. But I would sit behind my father at the counsel's table.
And I heard him several times explain to clients when they would ask
him, " Dort Ramon, mananalo ba tayo? " (Are we going to win the case?)
And he would always teli them " Alam ninyo, upang manalo ang isang
kliyente ar1 tatlortg bagay ang kailangan." (Three things are necessary to
win a case.)
The first, he said, was a good case. You must have, speaking to the
clients, no injustice on your side. Then, he said, "You need a good lawyer,

r larvver who can show the court that you have law and justice on your
.rde. And third, you need a good judge, one who is ready to follow the
iars and to do justice. And I can guarantee to you," he said, "the first two.
I cannot guarantee the third."
Our purpose here this morning is to sharpen our skills so that we will
':ecome
better lawyers and try to make a better case out of a good case.
But vou know what happened to me one day and this was sometime after
I rsas released during martial law.8 A client came to me and insisted that I
:ive him a guarantee that he would win. And of course, I tried to answer
him giving the same answers that I had heard my father give - the three
good things - a good case, a good lawyer and a good judge.
But my client, being very rynical and very modern said, "Nagkakamali
:,,, knt1o, Abogado. " (You are wrong, Attorney.)
"Bnkit?" (\Nhy?)
"You don't need three things," sabi niya sa akin (he told me) "You only
:reed one. You don't even need a good judge. What you need is a judge
rr'ho is good for you. When the judge is good for you, you don't need a
Eood lawyer, you don't need a good case."
QUALITIES OF A GOOD LAWYER
Well, in a sense, he is right. In another sense, he is not. Because even

''r'hen you have a judge who is good for you, you still have to do a good
't-rb, otherwise you run the risk that the judge who is good for you will lose
vour case for you on appeal. And so whether you have a good iudge or a
rudge who is good for you, you still have to be a good lawyer handling a
good case. And to be a good lawyer requires many qualities.
But the most important, especially in these times are: integrity or

honesty not only to your client, not only to the courts, but most importantly,
nonesty to yourself.
There is one lesson that psychology teaches us and it is that if you

:epeat a lie often enough you get to believe it yourself. And when you
regin to believe lies, you are deceiving not somebody elie but yourself.
.\nd thereby, yoli are destroying your capacities as a lawyer, your capacities
to persuade p?ople. In these times, that is especially important and it is
;rot only now.
Diokno On Trial: Techniques and ldeals of the Trial Lawyer 5

Let me read to you what a lawyer wrote long ago in another country,
in another civilization. This is what he said: "The advocate must be skilled
in speaking; but above all he must possess the quality which is best and
in the very nature of things the greatest and most imPortant - that is, he
must be a good man." This lawyer is Quintilian who wrote in 88 A.D. And
he further said, aird this is also very important for us in practice: "There
is no greater benefit that we can conJer on our clients than this, that we
should not cheat them by giving them empty boast of success." ln short,
an honest lawyer tells his client that his case is no good when he thinks
that it is no good.
Quintilian was not alone in saying these things. Before him, Aristotle
inhis Rhetorics said: "It is not, as some writers assume, that the personal
character of the speaker contributes nothing to his power of persuasion. On
the contrary, his character may almost always be calledlhe most effEctive
gift of persuasion."
Both during pre-martial and martial law days, we refuse to believe
some public figures even when we know what they are saying is true,
simply because they have no credibility at all. And we believe other
public figures even when they say the most preposterous things because
they are credible figures. In our own profession, unfortunately, there are
lawyers with whom we would not enter into any agreement even if it
were in writing signed, notarized and witnessed by the judge because we
know that lawyer will violate the agreement. And there are lawyers with
whom we just taik and that would be enough. We don't even have to put
it in writing. And is not the second type of lawyer much more persuasive
both for you and for the court? And so, the first requisite for an effective
presentation of evidence is integrity on the part of the lawyer. judges have
often told me of some of our brethren at the bar who they will not believe
even if they come to court with 30 witnesses.
The second and I think equally important quality of a lawyer is couragp.

A great English jurist defined it as follows: "What are the qualities he
(referring to a lawyer) should possess? He should have a sense of honor.
He should have courage undefeated. And he should be ready to ignore
at once al1 popular applause or popular abuse. He should remember that
when he is tickled by public approval, when he is flattered by the passing
breath of popular favor, the administration of justice at once becomes
in full danger."
For me, there is a more practical reason why the lawyer must have
courage. And that is, that a lawyer with couragdwill persuade a judge much
6 Diokno On Trial: Techniques and ldeals of the Trial Lawyer

:rr)re easily than a lawyer without courage. When the judge knows that
'. ou l'il1 fight him all the way, as high as necessary, you can be sure that the
udge will study your cases very well and make sure that the judgements,
:j thev are going to be against you, are well studied.
A lawyer who thinks that he can win cases by kowtowing to judges

:o the extent of giving up the rights of his client, is a lawyer who will
':)timately become unsuccessful. You may win in the trial court because
; .ru kowtow to the judge in one case. But in the next case the other lawyer
-'r'ill kowtow more than you do and you will lose. And in both cases you
:re cluite liable to lose on appeal. For me, this is the practical reason why
',\'e must have courage our job is to prosecute
- - to fight. Where have you
:.eard of a fighter without courage? There are many other qualities but I
'.r'ill not go into them this moming. If I did, then I would take up the entire
.ecfure. That is not the principal subject that we have to discuss. We have
-., far discussed the basic qualities that a persuasive, effective lawyer must
i-..:r'e to present his evidence.
1. FIRST, GET THE EVIDENCE i
The first task of the lawyer in presenting evidence, of course, is to get

:re evidence. You cannot present evidence that you have not gotten. You
.annot fry an egg unless you first have an egg. I have asked the U.P Law
Center to distribute among you the checklists entitled, Processing a Case
for Trial (see pnges 79-93), Outline of Evidence Rules (see pages 94-98), Using
Circumstantial Evidence (see page 99-114), and Tracing A Missing Person
-t page 115-116). I do not propose going over these outlines with you. It
'.. ill probably take three or four lectures to finish. But let me tell you just
:,,rr' I use them and maybe from that you can form your own methods,
:<cause one of the important qualities of a lawyer is to imitate at the
-einning but not to stop there. He should improve upon the model that
:.e is imitating.
Let me give you a practical example, not connected with law. Al1of you,
I inot,, are familiar with Japanese watches. They are inexpensive. They are
r.lxrate. Do you know how they became that good? The manufacturer sent
:.r: technicians to Switzerland. They bought an old, complete Omega watch
:.rctorv They were trained by Omega people. Then they transplanted the
'..
hole factory to Japan. After they transplanted the factory there, they
:rade improvements on the machinery and on the working methods. And
:\\\\' \'ou have Japanese watches outselling Swiss watches throughout

Southeast Asia. In the same way, we lawyers learn from watching others,
imitating them or improving on them. And so if I give you examples from
my experience, these are not intended to be models, rather these will point
out mistakes to be avoided.
How do I work out these checklists? This is the way I use them. I
like to use Checklist 3 - Using Circumstantial Evidence (see pages 99-114)
simply as a reminder in cases where the client's evidence is not fuliy
satisfactory. And I keep on asking myself, how can I prove this? I have no
witness to tgstify to this fact. How can I prove it? Well, the only answer is,
if you have iro witness you will have to present circumstantial evidence.
And then I go through this checklist on using circumstantial evidence. If
you will notice, it is divided into three major sections. The first section
is: What circumstantial evidence is admissible to prove that X did what?
That is why it is entitled the "doing of a human act." And you will find
that the circumstances that indicate the doing of a human act are spelled
out. These are character, mental and physical capacity, habit, custom,
usage, intention, desire, plan, motive, emotion, opportunity, impossibility,
mechanical traces, organic traces, mental traces, offers to compromise, and
subsequent remedial measures.
Then the next question is, how do you prove a human character or
capacity? And there are the different elements as set forth in Checklist 3.
And the last is, how do you prove a fact of external nature? For instance,
how do you prove that a building was defective and that is why it
collapsed? I remember the case of the Philippine Bar Association's building
in Intramuros that was damaged by earthquake (see Figures 6,7 and S).The
Association sued the contractor and the builder. The defense was force
majeure - earthquake. So we had to prove that while the earthquake was
the immediate cause, the real cause was defective construction. That is an
instance of external nafure.
One of the items that we offered in evidence in that case was that
other buildings located in the neighborhood which were also hit by the
earthquake and as tall as, if not taller than the PBA building, did not suffer
damage from the earthquake. That is a circumstance which indicates that
there was something wrong with the building itself. Like if four of you
eat a certain dish in a restaurant and all of you get food poisoning, you
can conclude that that particular dish was the source of the poisoning. But
if out of the four only one gets food poisoning, then probably you have a
weak stomach. These are circumstances that sometimes we forget because
we are all hurried and busy with cases of many kinds. So a checklist like
this is useful just as a refresher for you.

/a\n August 2, 1968, "the most severe and
\,fdestructive earthquake experienced in the
Philippines in the last 20 years" struck Luzory killing
270 persons and injuring 261 others.e
The 6-storey Ruby Tower in Binondo collapsed
instanily. Other major buildings in Manila also
suffered structural damage like the Philippine Bar
Association (PBA) building constructed in 1966
P&ll bulding before the eanhquake at the comer of Aduana and Arzobispo Streets in
Intramuros.
The building's front column buckled, causing it to
tilt forward dangerously. The PBA, through Senator
Diokno, filed an action foi damages against the
builder and contractor and won in the trial court.
In affirming the decision on appeal, the Supreme
Court declared: "ln any event, the relevant and
logical observations of the trial court as affirmed by
the Court of Appeals that 'while it is not possible
to state with certainty ihat the building would not
have collapsed were those defects not present, the
fact remains that several buildings in the same area
withstood the earthquake to which the building
of the plaintiff was similarly subiecte4' cannot be
ignored."to
{FEures 6, 7 and I are laken fun PHIVoLCS vcbsile, llon t€ artde "tuon Eahquake oi 2
AJgust 1968' by S. Omob, Y 0sa$8, l. Sknner and y Yosbimi.l
But I use Checklist 1 - Processing a Case for Trial (see page 79-93) by
:.'' re$'ing it at least once or twice a year. I go through it. Why? This is a
:-:ailed list of the steps in preparing a case for trial. You are not going
- :ollow every step here in every case. But it is good to have a list of
. . ervthing that should be done in your most complicated cases so that
.'. :ren vou go to court you are not going to have the same doubt that no
::-rcticing lawyer ever rea1ly evades in his mind: "Is there something that
. : .rgot to prove? Is there any question that I forgot to ask my witness?"
. ]m sure there is no practicing lawyer who is here now who has not,
r: lrne time or another, had those same doubts in his mind. And what I
.:.e to do to avoid that doubt ls, I turn to paragraph number 19 (see pages
':-!3), entitled "Final Review Before Trial" and I run through this before
: 'rng to court.
One or two days before the trial, I run through all these questions. I
-: ,n't necessarily do everything listed here but at least I know if I have not
Diokno On Trial: Techniques and deals of the Trial Lawyer

done something. Or I know what I have failed to do. So, when I go to trial,
I am confident that I have prepared the case as thoroughly as was humanly
possible, given the time and, of course, the fee that the client is prepared
to pay. Certainly, if the client is prepared to Pay you not more than P500
or P1,000, you are not going to make him spend P2,000 in preparation.
That is why there are units to prove the degree of preparation. But you
must prepare to the fullest extent allowed by the units of time, exPense/
importance and difficulty of the case.
MAKE A RETAINER RECORD
Let me tell you what I do and it's

up to you to do better. I use Retainer
Record (Form 1, see Figure 9) every
time a new client comes to see me.
Why? Because I got burned once,
many years ago. A client came to
me and asked me to handle a case
for her. I listened to her and I said,
"Come back tomorrow because I
would like to study your case. I think
it is a weak case but I would like to
see if there is a way out."
She came back the next day and

I told her, "I'm sorry, Ma'am, I can't
find any way out. I think you better Figute 9. Retainer Record (see page 121)
settle the case and it is better vou
settle it without a lawyer, because the moment you bring in a lawyer to
setile, ihe adverse party will also get a lawyer and both of you will have
to spend. Mabuti pa, tutal magkamag-anak naman kayo, di mag-usap-usap lM
lamang kayo. Ayusin na lnmang ninyo i fo. " (Since you're relatives, it's better
to just talk it out and settle it among yourselves.)
Two years later, the person against whom she had thai particular case,
came to me regarding a case not connected at all with the case that first
client had come to see me about. The first client was not a regular client.
She was what we cail a walk-in or transitory client. So, I examined this new
case and then I thought it was great. I sent a letter of demand to that person
who consulted me two years before on a completely different matter.
l0 Diokno On Trial: Techniques and deals of the Trial Lawyer

I got a reply from another lawyer who insulted and criticized me for
: rlrlating professional ethics in going against a client. I said, this woman
:-:s never been my client. She consulted me on one matter which I turned
j.',rsn and this matter is totally different from that matter, even the parties
.::e different. But I had no way of proving, other than my ovm word, that
:e matters were totaily different.
Reluctantly, I backed out of the second case notbecause I was worried
:r'ut myself but because I was worried about my new client. I knew
:r:3t if I accept it, they would keep on attacking me and that would
:eiav the proceedings. The moment I fiIe a complaint, they would file
: motion to disqualify me, perhaps a disbarment proceeding in the
>'.ipreme Court. Instead of getting my client's case finished quickly, it
',s
trs161 6r.1, take longer.
After that experience, for every new case I fiIl in the Retainer Record
-:: Figure 9) because it tells me exactly what I was consulted about, and
:::rs is a permanent record. It's in writing - in my own handwriting - done
:: the time or shortly after the client comes to see me. I fiil it out even when
I have turned down a case, keeping in mind what had happened to me
,'nce so it will not happen again. I'm passing this on to you, especially those
r: r'ou who are still relatively new in the professiory so you can avoid the
:'.istakes that I have made.
TRIAL FORMS AS HELP GUIDES
Before I devised these forms, what I used to do was put in a scratch pad
rr at the back of a pleading, the notes of what I have to do in the case. For
::rstance, the client would come to see me - a new case - to sue somebody
:or ejectment.
So, Iwould ask, "Ma'am, may kontrata ba kayo? " (Ma'am, do you have
.: contract?) "Mayroon ho." (I do.)
"Pakita lnmang para mabasa ko ang inyong kontrata." (Please show this
:(\ me so I can read it.)
"Eh, nakalimutan ko po. Nnsabahay. Aknlako eh, baka hindi ninyo tatnnggapin
kaya hindi ko mtma dinala." (7 forgot to bring it. It's in the house.
.;,ro. kaso ko,
i rr'asn't sure you would take my case so I left it.)
Diokno On Trial: Techniques and ldeals of the Trial Lawyer II

This is a common thing among clients. So I have to tell the client,
" Bumalik ka bukas o sa makalawa at dalhin mo ang kontrata. " (Come back
tomorrow or the next day and bring the contract with you.)
Then I put down "Things to do" - No. 1, \Arhat? Client to bring contract
of lease. Put a checkmark and then the date when the client is supposed
to come. Or it may be a job we in the office have to do, for instance, get a
certified true copy of a certain document or interview a certain witness at
his place of work. Don't forget the date when it is supposed to be done.
This date is very important because we, lawyers, have a bad tendency to
delay things to the last minute, and if we do not have a deadline date, we
tend to forget to do it until it is too late.
So before, I used to keep something

THINGS TO like this and I am sure al1 of you have,
DO - FACTS too. You keep notes of what things you
have to do and what legal questions
you have to research. But I used to
lose those notes for they are only on
a scratch pad or on the back of the
pleading or on a piece of paper and
I am not what my lather was. When
my father would try a case, he would
go to court and all his notes were on
the back of an envelope. He would
put one or two words, sometimes all
that he had were just the names of
the witnesses and the order in which
he intended to call them. That is all.
He had a phenomenal memory, but
Figurc 10. Things To Do - Facls (see page 122) I don't. And so I write down what I
have to do - Things to do - Facts (see
Figure 70) and Things to do - Law (see Figure 26) and devised these forms
because this way they are part of the etyediente (general file) and are not
going to get lost.
I follow the Fact Chart (Form 13, see page 134) only in complicated
cases. This isnothing but a statement of the ultimate facts with the name
of the witness and the exhibit proving each ultimate fact. But I use the List
of Witnesses (Form 15, see page 136) in every case unless I have only one
witness. In the Greater Manila area, your case is set for today and after
l2 Diokno On Trial: Techniques and deals of the Trial Lawyer

:!ir+- - - :... \\-itnesses/ the judge will te1l you, ,,Let,s postpone
-flD "a i:-- - : , - .r'. e other cases to try." The advantage that we Manila
-
- - " e come to Davao is that because we are Manila lawyers
...
-'urF"
lD :.r -' - . ::., :ive us the privilege of having continuous hearings,
turt---- - . - - -:-.)ar1, so we have a better chance to finish our cases.
- \ I.tni1a, when we have a case that is set for today, the
-
- - i r.,r€ month from today, sometimes two months from
'{L. r'ou have a list of witnesses in some form, you will
r&' - , r '. '-tr t,tpediente (general file) again to remember who your
.- - -e forms have been devised because otherwise I find the
' : ::'.rough the expediente (general file) very time-consuming.
- -- :.-::'. through the forms and my mind is refreshed as to what

" i ..i.tahcase.
q; r -r'-\ESS GUIDE"
-t-€ss Guide (see Figure 11) WITNESS GUIDE
. r-:!)rtant for many

- ' ' :-. Point that I want
-- ' r.- i> the relationship
.-'.--- ttl the parties. If the
- - :...ttt,c'l either to your
..-.. '. !)Lr have indicated

' :,\rn1. The next is the
' -., r)i the witness. This
-" :;mes seriously affect l
' : :';litv of a witness. I
I
l
- ::' .'nrber a case I handled

l
. .., irl Manila where the I

l
-- ,f the other side was a l

I
l
. -.rged cigarette vendor

- .r-. a squatter area. The Figure 11 Witness Guide (see page 137)
- ... ho presented her made
- ., re. He did not tell her to dress the way she normally does or at best
, . she dresses when going to church. She appeared in court dressed
' ..rtte, but I knetr., very well that she could not possibly have bought
.':.,cade. So I just budgeted my time on cross-examination and then I
' : , Irer, "Mdan-, you have a very nice dress. It looks expensive."
Diokno On Trial: Techniques and deals of the Trial Lawyer I3

" A, alam ninyo po, mahal po." (Ah, your right sir, it's expensive.)
"Caano ho ba ang isang yarda niyan?" (How much does a yard of that
cost?)
"Treinta y cinco po." (Thirty-five, sir.)
"Eh, sino ho namnn ang nagregalo sa inyo ng ganyan? " (And who was it
who gave that to you?)
"Eh, sila po." (It was them.) She pointed to the adverse Party.
ILaughter]
That is not the worst thing. The case was continued to another day.
The next time that this same witness came to testify, she was sporting a
gold watch. My first questionwas: "Misis, napapansin kong mayroon yatang
bagong relos tayo? " (ls that a brand new watch you have on?)
" A, oho, ito fto'y Christmas gift. " (Yes, sir.)
"Christmas gift ho nino? " (From whom?)
" Sila po." (From them.) [Laughter]
You know this is the kind of thing that is basic in trial practice. One, no
client should give a gift to alry witness. Two, if he does give a gift, don't let
the witness show that gift in court. Three, make your witness go to court
dressed as he normally dresses or at best, because the court is a respected
place or should be held a respected place, the way that he dresses in going
to church. Certainly, don't make him dress as if he is going to a wedding
because he will not look presentable.
The next question is: Ighe believable? This means not only from the
tenor of what he says but the way he testifies. If he is not believable, then
don't use him unless you really have to because you have nobody else.
/
And the last is the mosi important - rlsliable. What I mean is, will he
continue to be a witness for your client or will he, at the last minute, shift
to the other side?
These are the factors tha! at the time you interview the witness, you
must keep in mind and protect yourseif against. If you think he is unreliable,
tie him down to a wdtten statement preferably in his own handwriting;
not a typewritten statement because it is easy to escape from that. He will

"A, alam ninyo po, mahal po." (Ah, your right sir, it's expensive.)
" Gaano ho ba ang isang yarda niyan?" (How much does a yard of that
cost?)
"keinta y cinco po." (Thirty-five, sir.)
"Eh, sino ho naman ang nagregalo sa inyo ng ganyan? " (And who was it
who gave that to you?)
"Eh, sila po." $r was them.) She pointed to the adverse Party.
[Laughter]
That is not the worst thing. The case was continued to another day.
The next time that this same witness came to testify, she was sporting a
gold watch. My first questionwas: "Misis, napapansin kong mayroon yatang
bagong relos tayo? " (ls that a brand new watch you have on?)
" A, oho, ito ho'y Christmas gift. " (Yes, sir.)
"Christmas gilt ho nino? " (From whom?)
" Sila po." (From them.) [Laughter]
You know this is the kind of thing that is basic in trial practice. One, no
client should give a gift to any witness. Two, if he does give a gift, don't let
the witness show that gift in couri. Three, make your witness go to court
dressed as he normally dresses or at best, because the court is a respected
place or should be held a respected place, the way that he dresses in going
to church. Certainly, don't make him dress as if he is going to a wedding
because he will not look presentable.
The next question is: Is'he believable? This means not only from the
tenor of what he says but the way he testifies. If he is not believable, then
don't use him unless you really have to because you have nobody else.
And the last is the most important - rb(iable. What I mean is, will he
continue to be a witness for your client or will he, at the last minute, shifi
to the other side?
These are the factors that, at the time you interview the witness, you
must keep in mind and protect yourself against. If you think he is unreliable,
tie him down to a written statement preferably in his own handwriting;
not a typewritten statement because it is easy to escape from that. He will
l4 Diokno On Trial: Techniques and ldeals of the Trial Lawyer

s:lplv sav " Hindi ko po binasa. N aniniwala ho ako sa kanila. Akala ko ho hindi
t- -:.tqLladagdag sa aking sinabi." (l didn't read it. I trust them. I thought
:,:.irng rvould be added to what I had said.)
But if it is in his own handwriting, I don't think he can get away with
:rt So if you think he is not reliable,.get his statement in writing.
Finally, there are what I call marlyi:risms that witnesses have which are
.
=:r' irritating to the court. For instance, some witnesses hesitate always
-:.rre answering. This is natural to them but when you Put them on the
i.:Jless stand, the impression they give is that they are lying because they
it:ltate too long.
Other witnesses have the habit of repeating the questionlefore they
::.srver it. That is also irritating. But the most irritating dr{d the most
:-rngerous of all wihresses is your witness who will try to argue with the
r:her lawyer. No witness that I know of has ever been sharper than the
:Jverse lawyer simply because the adverse lawyer knows what he is trying
:.. get from the witness and the witness is just guessing.
So, my own instructions to my witnesses when I present them are very

-:mple. Tell the truth. Do not think of the effect of your answer to my case.
hat's my worry, not yours. If you do not understand a question, tell the
-'-'urt: I don't understand i! please explain it. And when you are asked about
,' hat happened, do not make up what you think happened or what you
::lnk I want you to say happened, but try to picture in your mind the events
.:s they happened and answer accordingly. That way, your witness cannot
:v trapped into normal human errors o(minor inconsistencies which, as
'. ou all know, are badges of truth rather than badges of perjury
Then we have the List of Exhibits (Form 19, see Figure 22), which is
-elf-explanatory.
MAKE A TRIAL EVALUATION
The last form is a new form that I devised after my release from
,.1etention.11And the reason why I devised this is that during my detention
I realized one thing about my practice. Before my detention I used to be
either in court or in my office or traveling to court from about 8 o'clock in
the morning until about 6 o'clock in the evening and afterwards, I would
go to the Senate to attend the sessions. Remember I was a politician. The
result was that I was acting and was not giving myself enough time to reflect
'l
on what I was acting on. I was l;. r*
thinking just enough to get by on EVALUATION i
the cases, enough to attend to the

needs of my constituents. But to
really reflect on the meaning of Dr)ri ll$rN I Lr)n'rvr,ii
my profession, on the meaning of
my career, on the meaning of my
life, I really did not give it time.
For the two years that I was $]^lMlsTdNnDoPcmrMAtr
detained, I had two years of

H.N.orn naPP,,\r\rHs MrRofnRrsr Lrv
reflection and that is why when I
got out I devised Evaluation (Form
\!^r ,:RoRu) r+r.aiRr oNnn (
23, see Figure 12), because I think
that what we need as lawyers $(r LD$F^PP!\Li t lYFs I t\o MY,
and especially as human bcings
is to acf reflect on our actions, act
again. What we need is hopeful
action. So, Evaluation is designed
to help us in that way. It makes Figure 12. Evaluation (see page 145)
us ask ourselves every time we

receive a decision from the court: Did we win the case or did we lose it?
Sometimes an adverse judgment actually is winning the case. For

instance, when you know that your client has to pay, you try to settle
the case because your client 1'ust doesn't have the cash, but nothing
happens so you go to court, and you Bet a,udgement more or less the
same as the settlement amount.
One of the most important questions in the Evaluation form is, what
mistakes did I commit? How could I have done better? Thery what/mistakes
did my opponent commit? How could adverse counsel have dbne better?
And finally, since you are in a way studying the decision, what are the errors
committed by the court, and which ones are worthwhile appealing?
Once you have filled in Evaluation (see Figure 12) it is not intended to
stay in your trial records. This is intended to be kept by you in your own
personal file because it is your own confession to yourself. lArhat mistakes
did I make? What mistakes did the adverse party make? And you know
the value of this five years from now. Five years from now you will review
your trial evaluation forms and you will begin to see how you yourself have
improved because you have been putting down in writing your mistakes.

' - ,;'r.tlnon de{ect that we lau,yers have, and that is the
'-:.lge rvhenever we lose the case instead of ourselves
- .: a!.t se.
' :;n: that I use; it's up to you to use them or not, to

' :::> !)r to use no forms at a1l. But I have brought these
-.rr.r\e they have been helpful to me.
f {-t:--lrS. BE PREPARED
,u verr. briefly some important aclvice on the preparation
' :-rii, the advocate who is most successful in preparing

. - - :re l'ho is meticulous. The litigant should be made to
, : '. st.itements at least once not merely because certaln
'- ::-..rv have escaped him but because we must know
.: ir.,sticks to whathe originallv said. Aiarge number of
-- :e. Consequentlv we must never be too readv to believe
:'-it 1r1Llst test them in every way. Aftcr the advocate has
- -: .uflicientllz patient hearing to his client, he must assume
r .i his opponent. The client must be subjected to a cross-
-'.:'..rtion. By inquiring lnto everything, we solnetimcs come
.' :h the truth whcn lve least expect it. It is nccessarv also to
. .nto e\,ery document connected with the case. They must
-..rd. \'ery frequently, they are either not all what the client
- - ',r .rre mixed up with elements that may damage our case.
- :-r.'tirnes we discover that the slgnatures have been falsified.
. -' .i r-rnless .l,l e discover these facts at home, they will take you
. -Lrrprise in court. Having given a thorough examination of
' .- icrse and clearly envisaged all those points which will tell
' : (rr .rgainst his client, the advocate must then place himself
'- the position of the judge."
,.ejust read to you something written by the Roman-Spanish larv1,er

: ,rn many centuri.es ago and it is sti1l the same advice that every
' -:ng lar.r,vcr must hear from time to time, because human nafure has
'.-rrrged in 2,000 years and so with the job of the lawyer which is to
- .:.lc the court. So, this advice given in the year of our Lord 88 is stlll
-: .ir the year of our Lord 1975.
Diokno On Trial: Techniques and ldeals of the Trial Lawyer l7

We have discussed the first task - getting the evidence. l4lhat is the next
task? You must have command of tfrertules of evidence, particularly the
foundation for certain documents and certain conversations. For example,
I wonder how many of you would be able, without reviewing your trial
practice handbooks, to lay the foundation for a telephone conversation.
2. KNOW THE RULES ON EVIDENCE
I recall a case that I tried in Manila before Judge Bienvenido Tan. One
of the key items of evidence that the prosecution wanted to present against
my client was an oral confession made through the telephone. It was said
that my client called up the firm and told them that he had done this thing.
The person who received the telephone call was summoned to testify. I
don't know how many of you had a chance to practice before ludge Tan. He
is now retired. He was one of the most feared judges in Manila especially
for defense counsels. I knew that if that conversation was presented, my
client's fate would be sealed.
On direct examination, the fiscal (public prosecutor) began by asking,

"Did you have a telephone conversation?"
"Yes, sir."
"Withwhom?"
"With the defendant."
The fiscal (public prosecutor) did not know how to lay the foundation
for the telephone conversation: that the witness was familiar with the
caller's voice and, on that basis,was able to recognize and identify his voice.
His unfamiliarity with the rules on evidence prevented him from getting
the oral confession into the record.
MAKE YOUR OWN TRIAL MANUAL
I have mentioned telephone conversations because they are of common

use in Davao. Every time I come up with a problem like that, I write down
an outline after checking the books and I put it at the back of what I call
my Trial Manual (see Figure 28). One of the most interesting studies that I
made was with reference to the doctrines laid down by our Supreme Court
on the admissibility of extrajudicial conJessions of one accused against the

Idid that for one case and after using it, I iust included it in
The idea being that in case I ever have to use it again, it will
: be atailable. This I used to do long ago. My own pre-martial
had hvice as many entries as this one.
rEe I rr'as under detention, my law office was unfortunately

d tanc of the casualties among my files was my Trial Manual.
Er. Law Review at the Ateneo (Law
I rr a. asked to teach Remedial
h setnester (1975). In preparation for those lectures, I wouid
qdrt€. For instance, I was having a hard time trying to explain
of legitimacy so I put down an outline for the lecture.
nt task is getting the evidence admitted by the court. We have

taring the foundation on direct examination. I have only one
rdrit-e that I often violate myself.
Er vou out vor{r witness on the stand for direct examinatiory
:-l lum ,i't" tjM. questions in the same words as far as possible as
rur prepared him. If you change words, baka hindi ka maintindihan
4'. i'ulc,r rrragkn mali pa ng sagot. (\our witness may not understand
d make a mistake in his reply.)
-{nl vet I have seen many lawyers do this. In fac! I had to bawl out one
rr ssistants preciseiy for that. I told him, "lkaw na ang mag-interaiew sa
Ei::-{.nt ito. " (You be the one to interview these witnesses.)
I happened to come in while he was interviewing one of them' I sat
k f,--';; t'eu' minutes and listened to the interview. When it was time for
E I told the boy, "lkaw na ang maghaharap sa testigong iyan." (You will be
t t:rr: tr-r present this witness.)
Ab4 when he startedhis direct examinatiory
So he presented the witr:ress.
t ia.1s he was trying to get were the same but the style and the manner
d akrng questions were different, and so the witness became rattled' He
r not sure what my law assistant wanted.
-\nother point, and this has happened to me and my assistant time and
r:arn. But this time we were on the good side. Before a witness proceeded
r rr'itness stand, he pulled out a small piece of paper from his pocket,
"he at it, and then pu1 it into his pocket. I demanded the production of
Lr.ked
n: piece of papet ut d it wut p.oduced. It turned out that it was an outline
ptepared by the counsel. An outline of the very same questions asked by
i,-l-. counsel that morning.
Diokno On Trial: Techniques and ldeals of the Trial Lawyer I9

My advice is, if your witness insists upon getting something like
give it to him but make him retum it to you before you go to court.
ever let him go to court with that thing in his pocket. Your adversary
be someone like me.
ALWAYS BE OBSERVANT IN THE COURTROOM
This is the way I conduct myself in court. I may be talking to the iudge
and my aftention may appear to be centered fully on hif
but I am watdring
the adverse party and all his known witnesses. I waMh how they movg I
watch how they talk. I try to see what degree of education they have even
before they take the witness stand, unless I have their deposition or I have
some other information about them. \Arhen I do not know them, I ask my
client to tell me when they arrive "kung sinu-sino ang testigo ng kalaban.'
(Who are the witnesses for the opponent.) And they are under scrutiny at
all times even when they are not on the witness stand.
If it is a very impotant case, I usually bring an associate and that's his

job. His job is not to assist me during the trial in the sense of giving me
documents, papers, or anything. I don't need that. His job is to by'my other
pair of eyes and see exactly what is happening. So, wam youj{vitness not
to be talkative while they are in the courtroom or in the premises.
I have found many tips to proper cross-examination just by listening

or by having someone listen to what one witness was telling another. For
instance, one day a witness was presented in a case. I did not know where
he was residing. I had tried to locate his residence. Nobody knew. My client
did not know either.
During the recess, my client overheard this witness talking to a friend
and he mentioned that he was in the PC (Philippine Constabulary) barracks
and had been kept there for a month before he came to testify. So, naturally,
on cross-examination one of my questions was: "Is it true that you are not
realiy residing at the address you gave but for the last month you have
been staying inside the PC barracks?"
He had to say, "Yes." And thery came my next question: "Is it not
true that you have been prepared to testify, that your affidavit has been
read to you?"
And you know, these witnesses generally are reluctant to admit

that. So he said, "No, no, no." But I had made my point. So, right there

rt.u can gather a lot of things from watching what is happening around
rsru. I think that the Lord, if He would really want to create effective
itlers, has to create special human beings with eyes that go 360 degrees
rr.rrnd. [Laughter] Those are the important matters concerning getting
ir evidence in.
3. PRESERVE YOUR RECORD FORAPPEAL
The next job is, suppose your evidence won't go in becgle the judge
r.--n't allow i/ in? Then, of course, you have to make an ofer of proof. If
nrrr exhitrit6 have been rejected, you must insist that they be attached to
ix record so that they may be brought up on appeal. The Supreme Court
: ruledrr that if the exhibits are not attached to the record, the appellate
-1!rt \\'ill not review the ruli1g on the rejection of the exhibit.l4 Suppose
r L. not an exhibit but testifr/ny? In that case you must tell the court that
'.r''r:r s'itness would have iestified on this fact of his own knowledge.
1= -r'ing what you expected him to testify, make sure that you use the
..nguage that indicates that the witness has personal knowledge of the
:r.-ts or that what he would testify to are facts of his own knowledge and
re not hearsay or opinion evidence. You should do this to make sure that
i -\t Protect your record.
4. KEEPTHEADVERSE PARTY'S EVIDENCE OUT
The next task is how to exclude tle adverse party's evidence. To do

=j.. r'ou mus! of course, master tbe use of objections.ls But please use
,tretlions with a sense of proportion. In other words, unless the evidence
s such that it really will hurt your case, don't object. Of course, there might
he another reason that is psycfool6gical: You might want to throw your
*Fonent off balance. Some lawyers I know get off balance when there
ere objections made against them and the objections are sustained. If you
har-e an opponent who is like that, then by all means if you feel that is a
arrd tactic, go ahead.
In objections, remember that the rule requires us to be specific.16
i. t-'biections on the ground that the question objected to is irrelevan!
rxr.]mpeten! or immaterial are gey'eral objections and unless the question
:s clearlv so, general objectionsVe not to be used. Personally, I prefer to
=rake my objections specific, by saying that the question is misleading or
Diokno On Trial: Techniques and ldeals of the Trial Lawyer 2l

it is a double question or calls for an opinion on the part of the witness-
If your objection is overruled, you can raise the matter on appeal. If vour
objection is a general ob;'ection and it is overruled, it cannot be raised on
appeal because the rules require that the objection be specific.
In addition to the use of objections, you have the use of cross-

examination. But cross-examination is vastly overrated. I have been
in practice for 28 years, and have had extensive experience on cross-
examination. To me the most important question with reference to the use
of cross-examination is: \Arhen should I zof cross-examine?
Generally, I decide this on the basis of the following questions:

i Has the testimony of this witness hurt my case at all? If it has
not, I won't cross-examine. Suppose it has hurt my case, should
I cross-examine? That depends on another question.
0 Can I demolish that testimony by other incontrovertible
evidence? If I cary then I won't cross-examine, but I might ask
him one or two questions oniy to emphasize the crucial point
which I will later on contradict by incontrovertible evidence.
r Is he a truthful witness? That's vcry important. If he is a truthful
witness, the chances are I will probably cross-examine him and
bring out facts that the adverse counsel did not expect. Because
if he is a truthful witness, he will generally answer truthfully.
But if he is not a truthful witness, then I will probably not
touch him. Unless I have some kind of strong evidence that
can dispose of him. For instance, he is an ex-convict, or he has
given a prior inconsistent statement or his testimony is clearly
improbable and you can make it appear to be clearly incredible
because it runs counter to what a normal person would say
under the same circumstances.
Those are the general rules that I follow. If you ask me: How can you
make those decisions in a split secoid when the court tums to you and
savs: Any cross-examination? We shbuld have made those decisions before
the trial. Before the trial, you should have sat down in the quiet of your
office u,ith your client; you should have asked him who the witnesses of
the other side would be.
Pu!. yourself in the place of your opponent. Try to figure out the
witnesses you u'ou1d present if you were in his side and then analyze

horr' r'ou would cross-examine them. So, your decision normally, will be
made before the hearing begins and would be subiect only to whether or
not new matters are brought up in the direct examination, matters that
vlru have not anticipated.
/
Incidentally, one of the most frufful games that I play as a lawyer is
'.hat of trying to forecast my adverse party's taste. I like to play a game of
rting to see in advance not only who he would present as a witness and
*ihut do.o-ents he would present as evidence, but even the order in which
he s'ould present his witnesses and evidence.
To be able to do this, you have to know the character of your adverse

iLrunsel. And if you don't know him, then the best thing you can do is to
lo to court when he is in court and watch him try a case, or talk to others
'rr-ho know him. The people who know him best are the clerks of court
and the stenographers. They know the strengths and the weaknesses of
everv practicing attorney appearing before their courts. They are the best
y)urces of infoimation. Incidentally, if the judge is also new to you, the
tlerks of court and stenographers are aiso very good sources of information
about the iudge.
WHY ARE WE TRYING TO BECOME BETTER LAWYERS?
We have now discussed the matter of getting the evidence, getting

evidence iry keeping evidence out, and preserving your record. I think that
is s,hat this presentition of evidence is all about. Now, I would like to end
bv asking you this, which to my mind is a very fundamental question.
We are here and I'm very happy and very proud that this seminar in
Davao has the largest audience among the seminars that I have attended'
I have been lecturing since February, as Atty. Casiano Flores remarked,
because we are trying to learn something from each other in order to
form and polish our skills as lawyers. But why do we want to form and
polish ouiskills as lawyers? Is it simpiy because we would want to have
the prestige of being a good lawyer? Is it simply because we want to
earn more money as lawyers and get more clients? Is it because we want
to do a betier job for our clients? Or is it because we realize, as a Sreat
English jurist said, thaf "Every man right down to the boy who ties the
counsel's back ought to remember that he is in some degree assisting in
something more than merely settling a quarrel between two people. He is
'
a minister of iustice."

I bring this to your attention because when I was invited by the Quezon
City Integrated Bar Chapter to speak with them, I heard Chief Justice
(Roberto) Concepcion talk on the importance of legal aid. And one of the
things that Chief Justice Concepcion said has stuck to my mind like glue.
He said that 95 percent of the masses of our people cannot afford a lawyer
of their choice. The more I thought about this remark, the more I began to
question whether legal aid itself is enough.
I asked myself and now I pose the same question to you: When five
percent of the people cannot pay for a lawyer, perhaps they are unlucky
or they are lazy and so forth. But when 95 percent of the masses of our
people cannot afford lawyers, this is no longer a personal defect of the
people. There must be something wrong with our system, with our laws,
and with our profession as lawyers when 95 percent of the masses cannot
afford our setvices.
And so this moming I am posing to you the question: \Alhy are we

trying to become better lawyers? If we are trying to become better lawyers
because we want to see justice done, then I submit to you that in addition to
legal aid which is important as an effective measure, it is vital that we, the
members of our profession, should examine our social and legal systems
and our own profession and search for the changes that must be made so
that the 95 percent of our people who cannot afford a lawyer may be able
to attain justice.
I am afraid that if we content ourselves with legal aid, we will not

really solve the problem. Instead of actually helping our country and
our people, we will just be maintaining their dependence upon us and at
the same time we will be maintaining the defects in the system that have
created this sifuation.
I want to let you know, I just read this, that the good lawyer in preparing
his case is incredulous. He is a man who questions and bites. I like to think
of myself as one like that. And so after hearing Chief |ustice Concepcion's
speech, I dug up the statistical records of the Bureau of Census and
Statistics, a government bureau. These are official martial law statistics. I
found out from those statistics that from 1951 until7971., the top 5 percent
of the families in our country comprise 25-40 percent of the total income of
the country Whereas the bottom 50 percent of the families in our country
- 50 percent in 20 years - had never reached 18 percent of the total income.
So you have 5 percent of the families in our country owning one and one-
half times more than 50 percent of the families.
24 Diokno On Trial: Techniques and tdeals ofthe Trial Lawyer

- :- \ :rething that has happened once or twice, we can say that
* :': :i ;hanged. But the statistics I have checked date back to
" -- - :re last vear when the statistics were published. I submit
'' -' - ::-.e:hing is rvrong with the system. Has the Integrated Bar of
.i :- :.: ::::!)n to giving legal aid and sharpening our skilis as lawyers,
.--i. :-r rr'hat extent the profession is serving
""' '--'o the people of Davao
' - '-- : : . :.rr do not have the money to hire lawyers, and what can be
.
. -- -:-.i -.- ::id be done to improve the social system, the legal system,
-:-.: :\'stem, the cultural system, and above all, the structure of
r- :--. :: so that we may truly become ministers of justice?
'r--.. '. .u. [Applause]
&? ,
-;;"
-i.--. 3'aer No. 1,22 Septembet 1972.

:-=s,--:al Decree No.39 (1972), amended byPrcsidential Decree No.566 (1974)
:-,: :- -. CoNSr. art. XVll, $$ 9 and 10.
- --:- :'lnstruction No. 'l ordered the closure ofall newspapers, magazines, radio and television
'i: :+s unti further orders of the President.
--':-*'a Order No. 2 and its subsequent amendments authorized the military to arrest and
:p-- - persons violating certain provisions of the Revised Penal Code and required that those
,-?.:ed were not to be released "until otherwise ordered released by me (N,4r. Marcos) or by
-,:-ydesignatedrepresentative."GeneralOrderNo.2-Aorderedthemassarrestofleading
: --alists in print and electronic media.
: -L BERTES Urror.r or te Pntuppttrs, Tse SrnrE oF THE NAnoN AFTER THREE YEARS oF I\,4ARTIAL
_-., 31-82 (1975).
-:
:
- W. Diokno, Presentation of Evidence, ,l RECENT DEVELoPI,1ENTS lN LAW ANo JURISPRUDENCE:
S:-EcroN oF LEcrunes Gveu er Ventous GENERAL LAW PRAcrtce lrsrtrures 1975-1977 237-259
,', liam G. cumtang ed., U.P Law Cente0 (1978).
Senator Diokno was arrested without warrant and imprisoned without charges from 22
September 19721o 11 Septembe|l974 by the regime of Ferdinand Marcos. He spent most
:'his detention at the Maximum Security Unit, Fort Bonifacio, Makati City. ln the second year
:i his detention, he was placed under solitary confinement at Fort Magsaysay, Laur, Nueva
Ecrja from 12 March to 11 April 1973.
http://www.phivolcs.dost.gov.ph/Earthquake/1 96SCasiguranEQ/casiguran.html.
Nakpil & Sons v. Court ofAppeals, G.R. No. L-47851; United Construction Co , Inc. v. Court of
Appeals, L-47863i Philippine Bar Association v. Court of Appeals, L-47896, 3 October '1986
Supra note 8.
')<
'12 Senator Diokno's law oflice at Roxas Boulevard was burned in December 1972 while h.
under detention at Fort Bonifacio. A substantial portion of his law library, including law
from his father, Ramon Oiokno, were damaged or destroyed as a result.
13 ln Bahez, et al. v. Court of Appeals, (L-30352, 11 September 1974), the Court stated
'Wlhere documentary evidencewas rejected by the kialcourt and the offeror did not rnoye
the same be attached to the record, the same cannot be considered by the appellate cu-
'14 ln Lamagan v. Dela Cruz, (L-27950, 29 July 1971), the Court declared that: "The trhl
should permit allexhibits presented bythe parties, although not admitted, to be atlached b
records, so that, in case of appeal, the appellate court may be able to examine the sanE
determing the propriety of their rejection." Former Supreme Court Justice Florenz D. R
noted that this procedure is now provided in Sec. 40 of Rule 132, and includes oral evi,
which the trial court may have excluded [2 REMEonL LAW CoMpENDTuM 822 ( lOrh ed. 2004)].
15 See Checklist 5 - Objections, page 1'17-118.
16 RULES oF CouRr, Rule 132, S 36.

-{G EACTS
TO F tTt
,,.-::-
"
- - ,!rL-7
rt/z/ Fz4.-
Vuy
/
(r, lci
iorri
- -<- t ..*oj
L 1,/"*.",1/ t at-1'-zr-
.-.t ,^-..t-.^-.-l *
// J
- ,' ) './ .,
: '3 fhings to Do - Facts (Form 2) with Senator Diokno's handwritten entries on a case
j political prisoners in Kalinga that he handled as a member of the Free LegalAssistance
: FLAG) during naftial law.
Diokno on Trial: Techniques and deals of the Trial Lawyer 27

4n-"
,.t &.u^*. (lor-'1 cn '-,ck-'
r,t ?,.7-- e* U u; a'.-t', I O*f4rz !1<'/- z -
?ap.r+ L- P.,-.c- , +n
'k\ !-.f,. -C-e- 0.,<. ,!1. , ,,t 5
r t t hr*-t .-Z A|4--Jt J-4* - .
tt 0
fuo.-
,,
....- 9.,,.,,jr- t e-1 '
3,
/ /1l-1.* f-,- ,-"-t,t ^.

- A'h,aE;l .r-fra/n^.-., a.r*- u,L* t l, .rt-
l-/*
:1r-.-f /*
- *a ps*--t:--
- /*ru, <--.@- ?a.L -
L,4-"E14.- i'17) "*. ^:"r-.;,.j
7- 7;,r "-.t,
*?o
4,t* ,.{.- .*..-,a
'-L 4 ^l (.l-!;,
d-
.-.,**, /Z*t'/---,-
- a/r^^
f rg,i-* c.-
---a ^. f ft"?
r'v*-n
, Lt 1".{n;t-..( Gt<-.,
C4/b-1--,\.L,
Figure 13-A. Senator Diokno's notes on lawyers from his office manual.

* : -" ]JES OF PRESENTING ORAL
: ],].UMENTARY EVIDENCE
,: - :::r Diokno delves deep into the specific tosks and essentiol
:,. .e.. He discusses how to plan the trial of a case ond explains
:' :. forms that he devised. He ends with tips on presenting
:::^ of this totk, originalty entitled, "Presentotion of Oral ond

. :.':ere" was published in Trial Techniques: Proceedings of the
-' : -echniques -1979. lt is bosed on a lecture delivered in a forum
'- - j ---'. Center from 5-10 November 1979 at the Bocobo Halt, University
' ---- -: j. Quezon City.l
- : -
: :-'etion was reprinted in the first volume of Tria[ Lawyer's Magazine
- :;' )86 os part of a collection of materials on trial technique written
.- : '-'eign experts on triol practice.l
.:: : :n to the forms that Senotor Diokno devised, one more hos been
: ' .:'t 3 - the form on Discovery (Form 11-A, see page 132).
t :he title o{ this discourse suggests, this is a subject on

:.;hniques of presenting oral and documentary evidence. It is a
-\
^ \ -..rl,iect on techniques and not 1aw. It is a discourse on presentation
: :r.rrshaling of evidence. Consequently, I shall not discuss, except
'- :.rllri the law, nor shall I go into any great detail about preparation.
' . rr'ill try to do is offer you a miscellaneous collection of tips that I
:r.rv help you try a case. I do not propose to be scholarly, or complete,
, :: original. What I do hope is that what I will discuss here may be
-'. and practical.
.iefore I go on, I would like to give you a warning. I stressed techniques

' . :.rse that is the subject matter, and not because technique is all that
::.,rs. For a lawyer to be complete, techniqr-re and ideals must go hand
.'.rnc1. As American legal philosopher Karl Llewellyn said, "Techniqr-re

without ideals is a menace. Ideals without technique are a mess. One needs
to put technique to work upon ideals and with vision.3"
No"q /ctrnique is a means to an end. What is the end that trial lawyers
pursue? We try cases to win them. If we think that we have no chance to
win, we should not be trying them. Consequently, the basic function of a
trial lawyer is to win cases, but to do so within the law. What do I mean
by winning a case? I mean obtaining a favorable iudgment so that if your
clients have suffered any harm or injury they may recover. And if your
clients have caused harm or injury that they should not be made to pay
more than what the law requires.
Now, to fulfill this function, we have to know more than the law. We
have to do more than merely convince the courtlhat the law is on our
side. We must persuade the judge that it is right$d just that judgment be
rendered for our clients. In shor! it is not enough as the law book tells you
to have a theory of your case. You must also have an image of your case
- something in your case that appeals to the reason and sense of justice
of the judge, something that would make him say, "Indeed, this person is
right and if the law isn't that way, maybe I can interpret it so that it will
be that way."
This is something which young trial lawyers are not very familiar
with. And yet it is, I think, the secret of success of the great masters at the
bar. In law school, we are all taught what Aristotle said: That the law is
reason, unaffected by desire. But we forget what Gregory the Great said:
That reason opposes evil the more effectively when anger ministers at her
side. So the first objective in a trial of a lawsuit is not only to find the correct
Iegal theory but to find something that will raise the sense of outrage of
the court against your opponent.
SPECIFIC TASKS OF A TRIAL LAWYER
Now, to translate this function into concrete tasks, the job of a trial
lawyer can be broken up into these -
First, he must be uUtqt/ffe, admissible evidence and he must do so

in the right order and at fhe right time for maximum persuasive effect.
And he must prove every disputed element of his client's cause of action.
He must prove the theory of his case and then he must do more, he must
prove that it is inherently right for the judge to decide the case in his client's
favor. He must see that this is done by effective direct examination and

. - :rr introduction of exhibits. And that seems to be the subject matter of
' - -iiscourse. But this is only one of the tasks of a lawyer.
r'cond, he must be able to keep t\y'opponent's evidence out. He does

- - :r rvell-placed and timely objections and motions to strike out.
lhird,
he must be able to expose the weaknesses.of his opponent's
- -.:.:uttal. Then he must strengthen or rehabilitate any part of his case

- He does this by effective cross-examination, by impeachment and
-: :'is opponent has succeeded in weakening. The lawyer does this bv

' :.:ct examination and presenting corroborating evidence.
::nallr,, he must preserve the record so that, if the trial judge excludes
. : -' :-.ible evidence, then he must make an appropriate offer of proof.a And
',:rse, at the end of the trial, he must depict the stance of the evidence
- - j -r\\' into the strongest and most persuasive picture of his client's case.
-. .:.'es this normally in this jurisdiction not by oral argument but by
- :..n memoranda.
\.rn'let me repeat briefly the specific tasks of a lawyer: (1) conduct

: --,.: eramination and present exhibits; (2) make objections and motions
-::rke out; (3) cross-examine, impeach and rebut; (4) redirect and
-- ,eorate; (5) make offer of proof; and (6) submit persuasive memoranda.
-.rnnot cover ail of these subjects in this discourse. I will concentrate
- ::'t first two aspects, leaving the rest for a later exposition.
-TE QUALITIES OF A PERSUASIVE TRIAL LAWYER
3ut before I go into this task there is something that I must stress.
'-::.rsk is to persuade the court. But there is a very ancient saying which
- . . - '\\'hatever you are speaking so loudly, I cannot hear what you are
--.::{." In our case, this means that a lawyer must not only have the
: -:r.rques of presenting evidence and persuading, his own personality
- -- -: be persuasive.
',\'hat are the factors that make a persuasive trial lawyer? I think the
- -: important is that you earn [he respect of the court. There are many
'. .: ,rs that lead to this. I think the most important factors are, first, that
- . udge recognizes you as a fiBhter. If the judge knows that you are not
----.:* to fight he will ride over y_.ou and over your case. The second is that
:rclge respects your abilitllas a lawyer, not only your knowledge of
. ..rrr- but also your judgment. Third, the judge respects youvlntegrity.
These,to my mind, are the most important personal qualities of a
persuasive trial lawyer. Of course, he must have other skills if he is
to do his task effectively.
THE SKILLS OF A TRIAL LAWYER
The most important skill and the one that I have found most la$ing,
especially urno.,[ th" younger members of the bar, is the ability tMisten
to what is being said and to understand.
Every one of us as a human being has the natural tendency to hear

what we want to hear. When someone says something, we generally try
to interpret it according to our preconceived notions. Trial lawyers cannot
afford that luxury while they are in court. They must hear what is being
said and understand what is being said not only by the witness but by
the judge and the adverse party. And this, of course, requires basically,
patience t() \\ste\.
- The second skill that a trial lawyer must have is the skill to speak
(early, distinctly and understandabiy and, if possible, briefly. I say, if
possible, because many of us, including myself, often talk too much. We
use twenty words when two would suffice. But as long as your meaning
is clear, then that is sufficient.
The third skf that a trial lawyer must have is he must be able to think
on his feet, to )hake decisions quickly. Sometimes no matter how well
prepared you are, you will be caught by surprise in court. Unless you can
think quickly, the result of your inability to cope with the surprise factor
will affect you for at least the rest of that session and that can harm your
client's case.
There are other qualities that I should mention, for example: having a
sense of humor, being thoughtful of the convenience of others, remaining
courteous under stress - these are all helpful qualities and certainly we
should acquire all them. But I don't consider them as essential as the earlier
ones I have mentioned.
Of course, not all of us possess all of these qualities and even those
who possess them all do not possess them all to the requisite degree.
But fortunately, by perseverance, constant practice, self-control and self-
criticism, we can all acquire enough of these qualities to become respected,
persuasive and effective trial lawyers.
32 Oiokno On Trial: Techniques and ldeals of the Trial Lawyer

lrfffr- s a:,:\cE
trr-. . : - .:. i.,chniquc? What is the technique that you
-, . .lher vou have tlre others or not? Different
- .s.F
.a -,' -
,r1 !ryIJs . '-.:. in .rdvance. To know before I go to collrt what

.. .inrl in r't,h:rt orc'ler I r,r,ill pro".e them, and as
t*--_ . ..r-.\',\ lhat I have proved and what i have ),et to
-: :r'.\ .c1se, to be sure that i have Proved evcrything
. lrrrr' to cross-examine, vou mav not know how to

' : r)Lt ha','c planncd your case, then you have a much
"
-'::.li.rnt cross-examiner \,\-ho has gone to court rt'ithout
- ..:: rlithout a plan is like trving m box blindfolded.
-.rrr krrock your opponcnt out with a lucky punch. But
-. r\pL'ict kr be lucky?
, ' -.rn bt'elaborate or it can be simple. It can be kept purely

.:- '1.,.,rr'ritten down. You can follorv it closely or vou can
' :lc trial. Bttt there must be somc plan if onlv to make sure
. ..l.r.-rt \rou are doing at the trial. In this jurisdiction we do
' -, - .rrrltin LtLrusly'. We start one day rvith one witness, maybe
:' :ire case'mal'be postpor-red for a month or tr.r'o. So it often
: .. ithin one week, manv of us trial lawvers arc in court trving
,rnd sometimes as many as seven or eight different cases. If
- :' I t() plan as yoll must everv case that Vou trli then vou have to
. :tcortls of r<rur trial plan. It tl-re'refore sl-rould be il-r r'r'riting.
l:,,1'much vou are going to plan, that is, hcxv elaboratc your
rc. depencls upou the characte'r of tl're lawver and the nature of
- \li latc father, wl.ro rvas a trial lau'yer, used to kcep or makc his
: ire back of usecl envelopes. And they consisted of only one or tlvcl
- :'.'r n itness and mavbe a description of the rnore important exhibit.

'.i r-rne or two'ltords toremindhim w'hat it r'tas all abtlut.
I . r'n'time he prescnted a rvitness or identifie'd an exhibit, he would
. -- .r t :r littlc check mark or cross out the words that he had written at the
. .rf tlre trsed enr.elope. But my father had a brilliant memorl'. He could
:.rst's bv volumc and page in the Philipltitte Re;roris rvithout reading or
-ing at thenr. And l-re was practicing at a tirne that was more leisureh'
.::r totlay (sec t-'igure i l/. I havc never been able to follow his examPle. I
.:Ne rather elaborate plans. Even in the simplest case, I fill otrt at least tht'
Diokno On Trial: Techniques and ldeals of the Tr aL Lawyer 33

f) amon Diokno, Iawyer, politician
I\and justice o[ the Supreme Court,
was bom in Taal, Batangas on 28 March
1885 to Gen. Ananias Diokno and
Marasigan. Gen. Diokno was a
patriot and soldier who
his troops against the Spaniards and
Americans from 1896 to 1901.
Ramon Diokno finished his law

the Liceo de Manila in 1904 and was
the first Filipinos to be admitted
the Bar, in April 1905.
Jose W. Diokno
As a student, Ramon Diokno
organized the Asociacion Escolar de Filipinas and was chosen its first
president. He founded the Colegio de La Ilustracion, and was one of
the founders of the Rizal University, where he was also a professor.
He was editor of Ls Fraternidad and El Nacionalisfa; and president of
the Union del Trabajo de Filipinas. He was initiated as a Mason in the
Sinukuan Lodge.
Ramon Diokno was elected Secretary of the Philippine Assembly in

1910. Twice elected to the House of Representatives, he servedfrom 1915
to 1919 and from 1933 to 1935. In 1935, he was appointed Govemment
Corporate Counsel, the first person to occupy the position. He resigned
as Govemment Corporate Counsel durhg the japanese Occupation. After
Liberation, he was elected Senator from 7946 to 1949.
In 1954, shortly before his death, he was appointed by President

Ramon Magsaysay as Associate Justice of the Supreme Court.
He died on 21 April 1954 in Baguio City.
form called Case Chart (see Figure /.t/ among the forms that come along
with this discourse. As you can see from the Case Charl(sce l;igurz -15), you
have Facts to Prove on the left column, then Witnesses and Exhibits on the
right column. What I do is, in one sentence, not necessarily grammatical
but enough for me to understand, I write the fact that I want to establish
as an element of the case and then put the name of the witness who will
testify to that fact and any exhibit that he wilt identify which supports,
corroborates or es!6blishes that fact. I do this not only for my case but also
for my opponentt.ur" ro tha t I know what I have to provc and what he has
34 Diokno On Trial:Techniques and ldeals of the Trial Lawyer

to prove. I may not be able to fill
in the exhibits and the witnesses
completely for my opponent, but
I have a pretty good idea of who
he is going to call and what exhibit
he is going to present. \Arhere do I
get my ideas about my opponent's
witnesses? From my own client
and from my investigation of the
case. Your client generally knows
who can testify for the opponent
and on what matter.
KEEP A TRIAL BOOK
Now in a more elaborate case,

I use almost all of the forms that
have been given here. So if you
' -1 see page 133) don't mind, I'd like to go over
them one by one with you. I keep
:. ---- in a threc-ring binder that I call a Trial Book. You can also use a
. - ; - ; ,1111.1. On the left side, put a simple two-hole punch and file one
' ::..!'se forms there. Then on the right, put the two-hole punch on
: - -.: t-ile the remaining forms there. So that, in court, the pages open
- , -:enth'and do not occupy much space. I divide the Trial Book into
'-. . ,n'inB tabbed sections in this order:
1. Control
2. Pleadings
3. Facts
4. Law Notes
5. Motions
6. Pre-Trial
7. Plaintiff's Case
8. Plaintiff'sExhibits
9. Defendant's Case
10. Defendant's Exhibits
11. Trial Log
12. Rebuttal
13. Arguments/Trial Memorandum
14. Evaluation
1. CONTROL
The first section is Control. You will see in this section the following
forms: Retainer Record (see Figure 9), Things to Do - Facts (see Figure 70),
Things to Do - Law (see Figure 26), Civil Docket (see Figure 16), and Summary
to Date (Form 5, see page 125).
The Civil Docket is simply
a form to summarize the
proceedings in the case. Very CIVIL DOCKET
often you will want a reminder of

llq! 5dd.l (rur lrlr
when you filed your complaint,
or when the answer was filed,
or when a particular order of
the court was issued. You just
glance at this form instead of
going through your case files.
Things to Do - Facts (Form

2, see Figure 70) and Things to
r !! r'g!ul1D!!.
Do - Law (Form 3, see Figure 26)
are the key to the whole book.
Here is where I list everything
I need to do in the matter of
investigating the facts and
researching the law.
Things to Do - Law (Form 3, Figurc 6. Civil Dockel (see page 24)

1 1
see Figure 26\has lssue, Assigned

To and Date. lssue is merely a description of what is to be done. Assigned
To is where we put who is responsible for that task. Under Date we actually
have two dates: Date Due and Date Done. This way we can monitor not
only when a task is due but also if it has already been accomplished, and
when it was done.
Things to Do - Facts (Form 2, see Figure 10) hasWhat, Assigned To and

Date. Suppose you need a copy of a survey plan of land in a case involving
a dispute of boundaries. You want your client to submit to you a certified
true copy of the survey plan. So you just put there under What - survey
plans certified. Under Assigned To, you place client. Now if it is the office
that will do it, then put the initial of the person in the office who will do
it. If it is others, then you indicate who it is.
36 Diokno On Trial:Techniques and tdeals of the Trial Lawyer

Why is the phrase "others" there? When does this happen? Well,
there are cases, for example, where you may want to hire an expert or
you may want to hire somebody who will conduct surveillance on your
opponent. This is common in matrimonial cases and in claims involving
severe injuries. As part of your fact investigation you may want to see the
hospital records or obtain hospital information. When you cannot get this
directly, other persons may be able to secure the information. That is the
use of "others." Then the date, of course, indicates the date due, if it is done
or not, and if done, when it was accomplished.
What is the advantage of this?
This is just like a marketing list which most housewives keep. This is
exactly what these tools are. Only in your case, these things in the list of
Things to Do - Facts (see Figure 10) and Things to Do - Law (see Figure 26)
are what you will have to complete before the trial.
The Retainer Record (see Figure 9) is the most important record. This
is where the notes of the initial interview with the client are written, and
how much you are going to be paid. This is also where you write down
the names of the witnesses, but this is going to change as time goes on.
As most of us know, very, very rarely does a client tell all the truth in
the initial interview. As you interview him some more and as he brings
more witnesses, these things will change. But at leas! you have a record
of your first interview, your first contact with your client.
Now this Summary to Date (Form 5, see page 125) is very useful. I use
it often after every court session. The summary tells me how things are
going in the case. You will notice that there is a section in this {orm called
"Evaluation." This is the key to the whole thing. The first part of the
summary is just, "Okay, how far have we gone? What else do I have to do
with this case? What is the next step?"
But that evaluation is the key. Unfortunately, I cannot show you any of
my papers. Sometimes my entries simply read " Okay." Or "Judge seems
biased." It is for my own use. Before the next trial date, I just go over this
summary and then I will know if I still have to go through the record of
the case, read the transcript of the last hearing, and the like.
Reading the summary is often enough for me to remember everything

else that I have to do at the next hearing. And if I have doubts, then we
come to the next section.

2. PLEADINGS
The second section of the Trial Book is very simple - Pleadings. And
the form that goes with pleadings is Theory (s ee Figure 17).You don't really
need this except that it is an intellectual discipline to fill it out.
You think you know your

riei;- - - 1
theory; you think you know the
THEORY
adverse party's theory; but when
you try to summarize the theory,
to put it into a few words enough
D"!,[a,J
to fit into this form, you may
realize that you had the wrong
picture of your own or your
opponent's theory.
iili;r
There are little phrases that
may have escaped you after the
first reading of the pleadings. It is
when you get down to preparing
Id (
the theory that you begin to
understand what the case is really
a1l about.
The Theory form is divided

Figure 17 Theory 6ee page 126) into three parts - complaint theory
answer theory and reply theory.
The first par! complaint theory, contains liability theory and damage thmry.
Alrd this is because most cases, as civil cases, have tlvo elements. The first
element is the legal responsibility of the defendant to the plaintiff. The
second element is the damages or remedies that the plaintiff is entitled
to. So you have to be clear on both aspects and you have to know the
theory in both aspects.
The rest of the form on Theory is self-explanatory.
If there are not too many pleadings, I put the pleadings right behind
the form on Theory (Form 6) so that when I bring my Trial Book to court it
is complete. It is all there. If the pleadings are voluminous, I file them in
a separate folder. I put a tab on each pleading to make it easy to find it in
the course of the trial.

3. FACTS
Atter the Pleadings, the next section is Facts. You have two forms here:
Persons lnvolved (Form 7, see page 127) and Fact Log (Form 8, see page 128).
The Fact Log (Form 8) is nothing but a chronological order of the events of
tte case. It is different from the Case Chaft (see Figure 15), which indicates
t}re elements of your cause of action and how you are going to prove it.
The Fact Log (Form 8) is the story of the case, what happened between
the parties, when they met, what they said, and so on. The Fact Log, in
other words, relates to evidentiary facts. The Case Chart (Form 12) refers
to ultimate facts.
You wiII note that there is Date, EvenuParticipants and Source in

the Fact Log (Form 8). The Source is where did I, as the lawyer, get
the information. Most of the time, it comes from my clientt witnesses.
Sometimes I get it from the newspapers. For example, before martial law,
if there was any notorious crime you could go into the newspaper reports
and get a lot of information from what the press reported. Today, under
martial law, you can't get anything. If I am handling a medical malpractice
case and I happen to chat with a friendly doctor, he may give me some
data that can be of help. So that is why you have Source - so you won't
forget who told you what you wrote down here.
Then on top of that you have the form, Persons lnvolved (Form 7,
sce page 127).1 d,o not always use this form, but I must tell you that for a
former politician I have a lousy memory for names. In cases involving
many persons I do try to keep a list of names of everyone whose name is
mentioned in the Fact Log (Form 8) with a short description of who they
are. Sometimes, I even draw a sketch, for example, when we have a case
involving partition and there are many relatives who come from different
branches of the family. Instead of using Persons lnvolved (Form 7) I just
use a legal size paper and draw a family tree. Anything that will remind
me of who is who in the case.
4.IAAKE *LAW NOTES"

After the section on Facts comes the section on Law Notes which
contains the form Law Notes (Form g, see Figure 18). I want to tell you that
I keep another book which I often bring to court called my Trial Manual.
It is a different one and I would suggest that you use a three-ring binder
for this. I keep duplicates of my Law Notes (Form 9) from my cases in

my Trial Manual, alPhabeticallY
arranged. Here for examPle, under
LAW NOTES letter C of mY Trial Manual, I
rrsuhr k t l P(idE llL &r!: have notes on Gharacter evidence
- its admissibilitY and weighU
Confessions - their admissi6ility,
weight and when theY maY be used
against other accused; and so
forth (see Figure 28)- When these
issues arose in Particular cases, I
researched them. So next time I
have a case that maY involve a
similar question, I dorft have to go
looking for my previous research.
A11 I have to do is Pull out mY Trial
Manual and bring that Particular
research up to date. I researched, iet
us say, extrajudicial confessions in
7975. So I now have to look uP the
Fisure 18. Law Notes (see Page 129) SCRA5 from 1976 uP to the Present
date to make mY research current.
s. MoIoNs PRE TRIAL PLAN
The next section is for Motions

This is self-explanatorY. Here
you only put down the motions
that have something to do with I tBin
the trial. All imPortant motions
shouid be summarized in the
form for Motions (Form 10, see
page 130).
6. PRE-TRIAL
Then you have Pre'Trial. This
is a very important section. The
form I included here is the Pre-
Trial Plan (Form 11, see Eigure 79), I rB!
which is a guide for preParing for
the pre-tria1.6 All the matters to be Figure 19- Prc-Tnal Plan (see page 131)

:.-:Len up in a pre-tria1 are here, by category. By going through this form,
'. ,u can be assured that you have not forgotten anything important for the
::e-trial conference. (see also Form 11-A on Discovery, page 132)
7. PLAINTIFF'S CASE
The next section is Plaintiff's Case. The forms included here are: Case
Chart (Form 12, see F igure 15), Fact Chart (Form '13, see page 134), Admissions
F otm 14, see page 135), List of Witnesses (Form 15, see
Ttage 135), Witness Guide
Form 16, see Figure 11), Witness Notes (Form 16-A, see F igure 20) Statement
Analysis (Form'17, seepage 139) and Exhibit Guide (Form 18, see I(ure 21) .I
:..rve already discussed the Case Chart (Form 12). Admissions (Form 14) and
List of Wiinesses (Form 15, see page 7361 are self-explanatory.
The Witness Guide (seeEigure 17) is very imporiant. This will tell you
:11 the details of the witness, including how he looks, if he appears to
:e a credible witness, and whether he is reliable in the sense that " hindi
':..kLkuha ng kalaban." (He cannot be compromised by the other side.)And
:hen, there are the things to watch out for or that we should be careful
-:rr'rut. For example, a witness who talks too much. You are preparing
:.rm by asking him questions; before you know it, he is five miles away
::!)m the question. With a witness like that, you put dowry "talkative"
: "tends to exaggerate."
The bottom part of the Witness Guide (Form 16) is the most important
':.rrt because it tells you the points you need to bring out from the witness.
'rrru will notice there are little spaces for check marks on the side. That
:reans that before you end your direct examination, you go through this
3!rttom portion and check if you have elicited everything you needed from
:ire rvitness. If you are using this form for your opponent's witnesses, then
leiore you end your cross-examination you check this portion to make
.ure vou have covered everything you wanted to cover on cross. That way,
;rhen you end your direct or cross-examination, you will not be burdened
r., ith the worry that you forgot to ask the witness some important point or
,r'erlooked an important matter.
Following Witness Guide (Form '16) is the form Statement Analysis

Form 17, see page i39). This is important especially in criminal cases
;r'here you have the affidavits of the prosecution witnesses. Here is
;r'lrere you analyze the statement. You note down what the witness has
..rid, the page, etc., or in case of a sworn statement, the question number.

Not all" but those points that you
think you are going to use for WITNESS
NOTES
I odo
l
cross, should be noted. Those I re6ndi t lc@n I lore6
points you would want to keep in
mind because they can be useful
later on. Usually, you do not have
this for your own witnesses. For
your own witnesses, what you
usually have is only the Witness
Guide (Form 16, see Figure 17)
together with some kind of a
signed statement by the witness.
The next item is Witness

Notes (Form 16-A, see Figure 20)
This is simply a summary in a
few words of the most important
points that adverse witnesses
testified to. Il for example, you
are the counsel for the plaintiff, Figurc 20. Wilness Noles (see paga 138)
then in plaintiff's witness sectiory
note that you will not filI in the direct examination in the Witness Notes
form because that is taken care of by your Witness Guide (Form 16)
When your witness is being cross-examined you will take your notes
of cross-examination on the right portion of Witness Notes (Form 16-A),
so that on the left you will simply place a check mark on those points
where you will redirect. On the other hand, if you are the counsel for the
defendant, then (while your opponent is questioning the witness on
direct examination) you will place your notes on direct examination on
the left side of Witness Notes, and place a check mark on the right side
(cross-examination) opposite the point where you think you should
cross-examine.
THE IMPORTANCE OF AN "EXHIBIT GUIDE"
The next form is Exhibit Guide (Form 18, see Figure 21).\ou must fiil
this out for every exhibit. You will notice the phrase Exhibit Reviewed on
This is to ensure that when you present an exhibit, you have read
it first. I have seen at least two cases where the adverse party presented
documents which I was able to establish later were false. In one case it was

=I
HIBIT GUIDE
r-,
iom
1
deliberate, I think; in the other, the
good faith of opposing counsel was
rft&d ' lok, taken advantage of. But the funny
thing is that in the first case where I
believed the forgery was deliberate,
r\drtrld llrbdq the adverse counsel did not need
that letter in order to prove his case.
He had already proved his point
but he presented letter. \Arhen
a fake
I proved that it was fake, his case
blew up in his face.
So what lesson did I learn

from that? First, never present
any forged document, not only is
\d d.d Itrrdq .
it illegal, but if you get caught you
I I siiq. ir !{d o
are dead. The second thing is, read
every documen! every line, every
page, every word of every exhibit
',:--E 21 Exhibil cuide (see page 14O) before you present it in court.
Now this is advice that Soes way,
ir a\-back. I don't know how many
r: r'ou know Quintilian, the very r.*r---l
:.lmous Roman-Spanish lawyer.
LIST OF
EXHIBITS lr," .r* |
l ltuomrl I lilrod. er 1l
:{e rvrote the book, still one of the
:est books on trial practice I have
:".er read, written in the year 88
\.D. This is one of the pieces of
:Jl ice that he gives: "Read every
jocument." But many lawyers
.ill go to court, present exhibits,
:nd then are surprised when
\rrtions of the exhibits are read
:r' their opponents which destroy
'r contradict their case.
8. PLAINTIFF'S EXHIBITS
The next section of the Trial

Book is Plaintiff's Exhibits which
- 'ntains the form called List of Figurc 22. Ltsl ol Exhibtts tsee page 111)

Exhibits (Form 19, see Figure 22). This form is a list of every exhibit made
as it is marked in court and each exhibit number identified by particulars
or description. The last two columns are admitted or excluded. These are
filled in when the documents are offered in evidence and the court rules
on the offer. If the exhibits are not voluminous, I may attach copies of the
exhibits to the List of Exhibits.
9. DEFENDANT'S CASE
The Defendant's Gase, which is the next section in the Trial Boolt is
identical to the Plaintiff's Case in make-up and has the same forms: Case
Chart (Form 12, see Figure 15), Fact Ghart (Form 13, see page 134), Admissions
(Form 14, see page 135), List of Witnesses (Form 15, see page 136), Witness
Guide (Form 16, see Figure 11), Witness Notes (Form 16-A, see Figure 20),
Statement Analysis (Form 17 , see page 139) and Exhibit Guide (Form 18, see
Figure 21).
1 O. DEFENDANT'S EXHIBITS
This is followed by the section called Defendant's Exhibits containing
the form List of Exhibits (Form 19, see Figure 22).T\is form is used to keep
track of your opponent's exhibits. If the exhibits are not voluminous, I may
attach them to the List of Exhibits.
11. TRIAL LOG
Then I keep a Trial Log section. The form for this section (Trial Log
- Form 20, see pfrge 142) is simply a brief record of the proceedings. All I
put here is the date of the proceeding and what transpired (e.g ., "postponed
- judge sick" or " case called at 10 a.m. Plaintiff continued direct exam of witness. . -
roho identified exhibits A, B and C." This is my quick reference guide to the
status of the proceedings.
12. REBUTTAL
The next section you have is Rebuttal and this is simply a reminder,
which you should prepare at the end of every session, of what points in
adverse party's evidence you should be prepared to rebut. And you will

put it at the end of every session
because that is the time when
you can remember the poin! the
witness and/or exhibit that needs
to be rebutted. If you know which
witness you will use to rebut a
particuiar matter, you can also
put that here. There is only one
form here, Rebuttal (Form 21, see
Figure 23)
13. ARGUA{ENT
Then you have the ArgumenU

Trial Memorandum section which
contains the form on Argument
(Form 22, see Figure 24). This is an
interesting form. ln many cases, the
Figure 23 Rebuttal (see page 143)
adverse counsel may forget to prove
some important point. Naturally, you do not remind him of it during the
trial, or he may cure his omission.
But you have to remember for
lourself, so that you can include ARGUMENT
rrr i r(rr. lr{ q{(L i I rqo'r{.
D.
this in your final arguments or trial L(Ni{in
Lr
I !iqrrirr
memorandum. This is where you
record those points.
14. EVALUATION
The last section is Evaluation,

ilhich contains a form on
Evaluation (Form23, see Figure 12).
I rill this up when the judgment
comes down. You have to criticize
r ourself when you fill out this
:rrrm. As I said earlier, you can
:nlprove only i{ you can look at
'.,,ursel f objectively, recognize
i t-rur weaknesses, recognize your Figure 24- Argunenl (see page 144)

failings and try to improve on them. And ihe Evaluation form forces you
to do this. It also has a bonus because you also evaluate your oPponent
and you know what mistakes he has made and hopefuily you promise
yourself that you are not going to commit the same mistakes he made. Of
course, that is a promise that you will never keep.
AFTER THE MECHANICS, LAY DOWN THE PRINCIPLES
\Arhy have I given you all of these forms? Basically, because the most
important technique is the plan of the trial. A record of that plan is in
your Trial Book. The Trial Book also contains a record of how you are
implementing the plan. It is a lot of work to keep it but it has tremendous
compensation. Trial judges are impressed by lawyers who are prepared
when they appear in court, and the Trial Book shows them that you are
prepared. Second, it saves time in the long run. Why? If you don't have a
iecord of what has been happening at every trial, before every trial what
do you do? You go over the files of your case. You read the transcripts.
You are going to waste so much time reviewing, and you're going to do
this before every trial date. With the Trial Book, you simply go over your
trial notes and you will remember what's happening.
But to me the biggest bonus that I get out of using this Trial Book is
that it forces me to think of my cases. I can't deceive myself. If I am going
to fill out the forms, then I am forced to PrePare my case, and to think of
the law and the facts. It gives me confidence at the end of the case that I
have proved everything that I have planned to prove at the beginning. I
may lose the case but at least I know, for my own satisfaction, that I have
given it everything that can be reasonably expected of a lawyer.
I have discussed the mechanics, now let us discuss the principles.

How do yoy plan your order of proof? Well, the usual practice is this:
You startrlhe case with a strong witness. Who is a strong witness? The
strong witness would be a person who can withstand searching, probing
cross-examination and can give the court a general picture of your case. A
witness who can testify to mos! if not all, of the elements of the opponent's
liability. You can tackle the matter of damages later. But your first witness
must have ihe capability to present evidence on the essential elements of
the case - at least as far as liability is concerned.
If all your witnesses are strong, you are lucky. Normally, you are going
to present also a weak witness. You would not want to because nobody

rl'ants to present a weak witness, but you will be forced to because only
that particular witness can testify to some vital matter. How do you deal
n'ith such witness? You put him in the middle. And right after him, you
put some other witness who can corroborate this weak witness on other
points. Naturally, he cannot corroborate him on the point that only this
witness can testify to. But he can corroborate him on other points. Then
vou end, hopefully, with a strong witness.
Now, what about the proof of the defendant? Does he follow the
same order?
Well, as far as the defendant is concerned the matter of having a

rvitness who can give the court a general picture of the case is not really
very important. Why? Because by the time the defendant presents his
evidence, the judge already has a good idea of what the case is all about,
rnasmuch as all of the plaintiff's witnesses have already testified and the
.lefendant has already cross-examined them.
So, from the direct examination of plaintiff's witnesses and from the
thrust of your cross-examination, the judge will already have an idea of
rr'hat the case is all about and what the issues are. Therefore, as far as the
.lefendant is concerned, his major consideration is how to create a favorable
rirst impression on the judge. You don't have to follow the guideline on
lhe chronological order of gtrong witness, weak witness, strong witness.
\\'hat is important is to |2/t the judge quickly with your first witness, to
!rvercome the psychological effects of the plaintiff's witnesses.
Now, one more factor about the defendant's case. Very often, plaintiff's
rr'itnesses testify that the defendant did or said such and such a thing. Very
many young lawyers are tempted to have their clients deny it right away.
I think the better practice would be this: call the defendant; have him give
his testimony in narrative form; then at the end of the narrative, before you
turn him over for cross-examination, ask him a series of questions like -
Question: Thc witness, Mr. So-and-so, said that you have said such
and such is true. How would you respond to this?
Answer: No, sir, I did not say that.
Question: All right, n,hat is it that you really did or said?
Your client will now say or explain what he did. This is one way of
being able to get the same story twice before the court without its bcing
objectionable.

KNOW YOUR JUDGE
In discussing this matter of strong witness, weak witness, I have not

mentioned the most important consideration of all, which is the matter of
the judge's predilections and idiosyncracies. You will have to convince the
man who is sitting on the bench. You may not agree with him; you may
not like him as a person; you may think he doesn't know the law; you may
think he is stupid; but he is the fellow who is going to decide your case.
He is the man whom you have to persuade, not the Supreme Court, not
the Court of Appeals. You have to get through to him first.
Therefore, a basic consideration in planning is to know your judge. I

do not mean to know him in the sense of influencing him, but know him
in the sense of knowing his peculiarities, because everyone of us is peculiar
to some degree. You will ask: how do you know your judge when you
have never had a case tried before him? Well, one morning, quietly and
inconspicuously, go to his courtroom and sit at the back and watch how
he tries a case and you will leam a lot.
Another way is to ask your cozr paiieros (colleag:.es) who have appeared
before him: "Hoy, kamusta ba si ludge So-and-so? Ano ba ang ugali nyan?
Mahigpit ba yan o maluwag? " (How is Judge So-and-so as a judge? What is
he like as a person? Is he strict or lenient in court?)
You can also go to his clerk of court or stenographer and ask

about him.
TIPS IN PRESENTING WITNESSES
Now, I would like to mention, with respect to direct examinatiory that

if you have made a trial plan as I have suggested, then when you go to
court and start presenting your witnesses, you should have no problem.
Just follow your Trial Plan. You know your witness'weaknesses, you know
what to watch out for, you know what important points to bring out; so no
problem, except for one thing: many young lawyers try to show off their
legal ability in court.
The result is that, although they talk to their witness in simple language
in the office, when they go to court, they question their witness using big
words. The result is utter confusion. The best tip I can give you is this:
whatever words you used in questioning your witness in your office
interview, use those words in court. Don't surprise the witness by changing
48 Diokno On Trial: Techniques and ldeals o[ the Trial Lawyer

rvords. He may not understand you. Very few lawyers follow this.
So, Ttp number I: Don't change your language. Don't change the
rvordings of your questions from the office interview to the court.
Tip number 2.'Don't ever ask any of your own witnesses about any
exhibit that you have not discussed with him at your office.
Tip number your witness is going to identify an exhibit, explain

3.' If
to your witness all these big words that you have to go through in court
to authenticate the exhibi! even if it is a ritual that has become practically
meaningless. We all know the ritual:
"Do you recognize this document?"
"Yes, sir."
"Why do you recognize this document?"
"Because it is a letter I received."
"Do you recognize this signature?"
"Yes, sir."
"Why do you recognize this signature?"

"I have seen it very often."7
And so on. There is really very little question about this, as long as
vour witness knows where you are going with your questioning and
understands why you have to ask those questions.
So my next tip, Tip number 4, is this: Whenever possible, get

admissions or stipulations on your exhibits to eliminate the need for this
ritual of identification in court. But this last tip is not arr inflexible rule.
There may be occasions when you want to keep your exhibit to yourself.s
What are these occasions?
Well, first of all when should you ask for stipulations? My policy is
this: If I am going to present an exhibit on direct examination and if I am
sure that the adverse party knows my client has those exhibits, then I will
present them for stipulation. I lose nothing. But if my documents contain
matters that I will use on cross-examination, or if I think the adverse party
can prepare a defense, then I keep my documents until the last minute.e

In the end, the 6nal tip I can give you on trial practice if you want to
become a trial lawyer is - try cases. You will only learn by doing it.
Jose W. Diokno, Presentation of Oral and Documentary Evidence, ln TR|AL TECHNToUES:

PRoCEEDTNGS oF rHE lNsrrurE ON TRAL TEcnrroues - 1979 167-207 (Bonifacio A. Abaya ed., U.P
Law Center) (1981).
Jose W. Diokno, Presentation of Oral and Documentary Evidence, reprinted in l TLLM '15 N'86
(Jesus M. Elbinias ed.) (1986).
Karl Llewellyn, On What ls Wrong with So-Called Legal Educatlon, 35 CoLUM. L. REV. 651 , 662
(1e35).
RurEs or Counr, Rule '132, S 40: " fer der of excluded eviderce. lf documents or things offered
-
in evidence are excluded by the court, the offeror may have the same attached to or made part
of the record. lf the evidence excluded is oral, the offeror may state for the record the name and
other personal circumstances of the witness and the substance of the proposed testimony."
Succeue Couar Reponrs ANronreo (Central Law Book Editorial Staff ed., Central Law Book
Publishing Co., lnc. ).
See also Form 11 on Discovery which supplements the forms devised by Senator Diokno. The
rules on discovery have changed since he delivered this lecture. Recent amendments of the
Supreme Court are contained in A.M. l\.4atter No. 03-1-09 effective 16 August 2004.
Rures or Counr, Rule 130, S 50 (b): "Opinion of ordinary wifnesses. - The opinion of a witness
for which proper basis is given, may be received in evidence regarding - .... A handwriting with
which he has sufficient familiarity...."
On 13 July 2004, the Supreme Court issued Administrative Matter No. 03-'1-09-SC, effective
16 August 2004, which states that,
'I. PRE-TRIAL
A. Civil Cases
... 2. The parties shall submit, at least three (3) days before the pre-trial, pre-trial briefs
containing the followingl
(d) The documents or exhibits to be presented, stating the purpose thereof. (No evidence
shall be allowed to be presented and offered during the trial in support of a party's
evidence-in-chief other than those that had been earlier identified and pre-marked during
the pre{rial, except if allowed by the court for good cause shown)..."
I td.

WITNESS NOIES 2eaet,c n.
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Figure.2S witness Notes (Form 16-A) with senator Diokno's handwitten

entries on a human rights
case that he handled in Benguet during martial law
Diokno On Trial: Techniques and ldeals of the Trial Lawyer S 1

/e.4^n- a/.r. Aa.
t. fZto (P. po, s, +t)
l' 6.. ** .4 ^, ...21 n a.-.s-.2 r- . di-;,
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44 .-Ln-L)4 dr<41-
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Figure 25-A. A page from the Trial Manual of Senator Diokno on Res /nlerA/ias Acta.

:{E SEVEN PROBLEMS IN THE
OF EVI DENCE
'RESENTATION
. rrr. P gxxg
!.
expert on the low on evidence, Senator Diokno's opprooch to the subject
-- . ='s this entire body of law in seven questions:
1. Whot facts must I establish as o lawyer lor the plointiff or for the
defendant if my couse of action or defense is to succeedT
2. Which of these focts - or of evidentiary focts tending to prove them
- are deemed proved without my hoving to present evidence?
3. Who must establish the facts thot have to be proved?
4. Whot degree of proof is needed of these focts?
5. What available evidence is admissible to prove these focts?
6. How do I obtain the evidence I need ond preserve it for use at
the triol?
7. How do lpresent ond offer the evidence ot the trial?
This opproach reflects a deep understonding of the interplay between

..'xence, court procedure ond triol technique thot only a true master of legal
;';ipline could produce. Senator Diokno's Checktist 2 - Outline of Evidence Rules
re poges 94-981- which is bosed on these seven questions, is avery usefut guide
:: rnderstanding a subject that has confounded many practitioners.
A transcription of this lecture, entitled "Problems in the Presentation of
,.idence," first appeored in Recent Devetopments in Law and Jurisprudence: A
klection of Lectures Given at Various General Law Practice lnstitutes 1971-1974,1
:ased on lectures delivered in Cebu City (2-4 December 1971), Cagayan de Oro
:iry (10-12 Februory 1972) and Baguio City (25-27 lilay 1972).
Jhave been asked to discuss with you an impossible subject.

"Problems
| in the presentation of evidence" is so broad a topic that
I Wigmore has written ten volumes on it.2 Problems of trial technique
rrill also invoive problems of evidence. The best book on this, by Goldstein,
a former judge in the United States, is a three volume affair.3
So I cannot possibly take up with you this morning an exhaustive

presentation of the subject. Rather I will hit upon some highlights and hope
Diokno On Trial: Techniques and ldeals ofthe Trial Lawyer 53

that those points that you are truly interested in may come up during the
questioning that will follow the main lecture.
Now from the point of view of the practitioner, the problems in the
presentation of evidence boil down to seven general problems.
1. KNOWTHE FACTSYOU HAVETO PROVE

First, what facts uust I establish as a lawyer for the plaintiff or for
the ilefendant if rny cause of action onny deferrse is to succeed?
In order to answer this particular question, we go, first of all, to the
requirements of substantive law. For example, in the case of Senator
Alejandro Almendras, one of the charges against him is that he interrupted,
by unseemly conduct, the holding of a canvass. For the prosecution to
establish its case, it has to shory first, that there was a canvass going on.
And to establish this, they must establish that the board of canvassers was
in session. Second, they must establish that the canvass was interrupted;
and third, that the cause of the interruption was unseemly conduct on the
part of Senator Almendras.
In order to determine what the facts are, you will have to go to

substantive law. In addition, you will have to review the Rules of
Court on the weight and sufficiency of evidence,a burden of proofs and
presumptions.6 All of these indicate the facts that you must establish. This
is the first problem that comes up in the presentation of evidence.
2. DETERMINE WHICH FACTS ARE DEEMED ESTABLISHED

WITHOUT NEED OF PROOF
Seconil, tohich of these facts - or of eaidentiary facts tending to proae
them - arc deemed prooed without ffiy hazting to present eoidence?
Here you come up with the problems of judicial notice and judicial
admissions under Rule 129.7 For instance, what can we, as practitioners, do
when we find out that the judge is using an outdated book to take judicial
notice of a fact?
I suggest that in all cases where there is some doub! we do not depend
on judicial notice but present evidence to prove that particular fact. I also

suggest that we request the judge to please let us know the reference that
he is relying ory so that we may provide him, if necessary, with counter-
references or show him that his reference is outdated or unreliable.
In the matter of judicial admissions,8 one of the problems that crops

up is, what happens to an admission in a pleading when the pleading has
been amended?
Of course, the threshold issue here is whether or not the amendment is

accepted by the court. If the amended pleading is admitted, it supersedes
the earlier pleading.e This means that the admission contained in the earlier
pleading ceases to be a judicial admission and becomes an extraiudicial
admission. As an extrajudicial admissiorL it must be established by the
party seeking to use it as evidence against the other party.10
In one case I handled, I objected to the admission of the second

amended answer on the ground that the defendants were changing the
theory of their defense. My objection was sustained. So in that particular
case, I did not have to mark the first amended answer because the second
amended answer had not been admitted.
Therefore, it is the preceding pleading, the first amended answer,

which is in force. The admission contained in the first amended answer
thus remained a judicial admission that I did not have to Prove anymore
at the trial.
3. DETER AINE WHO MUST ESTABLISH THE FACTS THAT

HAVE TO BE PROVED
Thiril, who must establish the facts that remain to be proaed?
Your problem here is more acute in criminal cases. For instance,

possession of a prohibited drug is penalized under the Revised Penal
Code except upon prescription of a physician.ll Now, is it the burden of
the prosecution or is it the burden of the defense to prove that there is a
prescription by a physician?
This is a matter that you, of course, will have to determine and you will
6nd this once again under Rule 13312 and Rule 131, on burden of proof.l3
Presumptions are also important, especially the matter of conclusive

presumptions. The rules and cases will tell you the basic facts from
which a presumption, either disputable or conclusive, may be drawn
or inferred.lr
4. KNOWTHE DEGREE OF PROOF REQUIRED

Fourth, what degree of proof is neeiled of these remaining facts?
You will also have to review the Rules of Court on the weight and
sufficiency of evidence and you will find this in Rule 133.15 The issues
here may involve the quantity and quality of the witnesses you will need,
and the kind of evidence necessary in particular cases. For instance, in the
matter of treason, you need at least two witnesses to the same overt act
or a confession of the accused in open court.16 An extraiudicial confession
alone, without two witnesses to the same overt act, will not be enough. If
you have an extraiudicial confession in an ordinary criminal action, you
will still need proof of the corpus delicti independent of the extraiudicial
confession, and you will also find this in Rule 133.17
5. DETERTAINE THE ADMISSIBILITY OF AVA]LABLE EVIDENCE
Fifth, what azrailable eoidence is ailmissible to prozte these facts?

And here we come up with the basic problems of the law of evidence.
But before we go into that, may I iust stress one fact that took me quite a
long time to understand when I was beginning to practice law, and that
is, the fact that no matter how much we read the rules of evidence, they
do not tell us the most basic rule of all, namely, that evidence consists
of something that must reach the senses of the court. All evidence boils
down actually to either a witness or an object. The object may be a
document or it may be a thing, but all evidence boils down to that. We
cannot have any evidence unless we have a witness or an object and
unless this witness or this object is presented to the court. And once we
realize this, it is much easier to understand all these rules on relevance,
admissibility, and the like.
THE MEANING OF RELEVANT EVIDENCE
Now because we have always to depend upon a witness or an objec!

we mllst also consider the rules on relevancy, exchrsions, admissibility

and testimonial qualifications, the basic rules on which are found in Rules
12818 and 130.1e What is the meaning of relevancy? Anything is relevar;t if it
tends to establish a fact in issue, or a fact from which a fact in issue may be
rnferred.20 Relevance is a logical or transactional relationship. For instance,
a person is shot with a .38 caliber revolver, and the prosecution establishes
that the defendant charged with the kiliing possesses a .38 caliber revolver'
Evidently, that is a relevant fact because it tends to establish the fact that the
.lefendan! being the owner of the .38 caliber revolver, is possibly the person
rr'ho shot the deceased. So relevance is simply a logical or transactionai
relationship. Later, we will discuss how to get evidence that is relevant'
For the time being, I merely want to state that anything that is relevant is
admissible, except when it is excluded by the rules.
THE RULES OF EXCLUSION
There are, of course, many rules of exclusion, but the most common is
the best evidence rule.2l Thebest evidence rule only applies to documents'
\\'e lawyers are very Prone to obiect to something, saying, "That is not the
best evidence." In fact, however, when the act that is sought to be proved
is not a document, then the best evidence rule does not enter into the
picture at all.
The next rule of exclusion is the parole evidence ru1e, which also applies
to documents. It says: "When the terms of an agreement have been reduced
io writing, no evidence of the terms thereof can be presented other than
the writing itself."22
Then you have the rules on hearsay and the exceptions thereto: dying
declaratiory declaration against interest, pedigree, family reputation,
common reputatiory res gestae, entries in the course of business, entries
in official records, commercial lists, learned treatises, and testimony at a
former tria1.23 Finally, you have the problem of admissions, the opinion
ru1e, character evidence rule and proof of similar acts.2a Now, these are all
basic rules of evidence.
The only point that I would like to stress here, in connection with
admissions and confessions, is that normally a person's statement is
admissible only againsthim.25 The statement of somebody else made outside
the courtroom is not admissible against thls person. Say for example there
are six persons charged with a crime, and three of them have been caught
and then tried. Before the trial is over, the fourth defendant is also caught

and he gives an extrajudicial statement admitting his guilt and implicating
the three other defendants. Now quite clearly, the extrajudicial statement
of the fourth accused is not admissible in evidence against his co-accused
who were caught earlier. This is simply because under our Constitution,26
you are entitled to confront and to cross-examine the witnesses against
you and since this other accused was not presented in court as a witness,
his extrajudicial statement then would only be admissible as against him,
the fourth accused, but not against the first three accused.
However, the Supreme Court has allowed an exception and that is the
case of confessions which tally in their major respects.2T When there are
several confessions given independently of each other and these confessions
taliy or interlock in the more important aspects, the interlocking facts
are considered as corroborative of the truth of their confessions and are
admissible for that purpose.
THE DYING DECLAMTION: EASY TO FABRICATE, HARD TO DISPROVE
With respect to the hearsay ru1e, the major problem to be very careful
about and which we always encounter as defense lawyers in fabricated
cases against our clients is a dying declaration.28 I'11 give you an example
of how often that happens.
I wastrying a case recently in Tarlag where the Philippine Constabulary

(PC) presented to the fiscal (public prosecutor) in the preliminary
investigation a dying declaration, signed by a PC captain and attested
to by a PC lieutenant. When the case was brought to me, the first thing
that I did was to look at the wounds of the deceased. I found out that
he had one bullet that came here and exited here; another that came in
here and exited here, through and through; and then there was one that
entered here and came out here at the back of the brain. So he practically
had no brains left.
When I saw this, I asked one of my associates to go to Tarlac to ask

the doctor who performed the autopsy, how long after these injuries had
been inflicted could this man have talked? The doctor told him: "He could
not have talked, not even for a few seconds." Considering that the shots
were fired successively, the moment thai any one of the bullets got in, the
brain was already blown off so he had no more capacity to talk. Because I
knew the PC captain in charge and I did not want to put him into trouble

. :hough I should have, what I did was during my cross-eiamination of
'-.c cloctor when she was presenied by the prosecution, I already brought
it the fact that once those bullets had been inflicted he could not talk.
. :.e prosecution never presented that dying declaration.
Our major problem in defending against this type of case is that the
:'.'ing declaration can be easily fabricated. You only need one person
'.no is supposed to have talked to the deceased at the moment before his
:.'ath. Sometimes the prosecution makes a mistake and forgets to prove
.onsciousness of impending death." So you think you can get away with
: .rnd say: "I object, Your Honor." It can still be admitted as part of the res
. stnc. So I must warn you that this is one of the trickiest and most difficult
::eces ofevidence to counter-act in a criminal case - the problem of a dying
,:eclaration. It's very easy to fabricate; very hard to disprove.
The only advice that I can give on this point is, try to trace the actions
: the deceased and of the persons who supposedly took the dying
.:eclaration. If for instance.,the dying declaration is taken in a hospital,
::en you have an opportr/irity becau"se you can question the nurses, the
.rtendants, the doctors and they can tell you if truthfully there was a dying
.:eclaration or not. They can tell you if the patient was in a condition to
::lk intelligently or not. So that's okay. In that case, you still have a chance
' ,disprove it.
But what happens in many cases, especially in the rural areas, is this:
lhe accused suffers a woundi then the policemarr comes and says: "Before
re died, I was able to talk to him and this is what he told me." You have
ro d661e., rro6ody else was around; only the policeman and the deceased.
io it becomes a question of credibility. In those cases, the only advice I
-an give you is: Predent as solid a defense on other points as you can and
:n' to weaken the testimony of the policeman by showing bias, prejudice,
:elationship or monetary considerations.
Do for instance what I did in one case where the witness came from
.r r.ery low-income group. When he testified, and this was just after
Christmas, he was wearing a gold waich and a shirt jack that came from
c'ither Aguinaldo's or Rustan's and new brown shoes. \i\rhen I noticed this, I
had no other altemative but to ask him where he got his watch. He admitted
that it was a Christmas gift from the parents of the deceased. And when
vou can get admissions like those, and sometimes you can if you can catch
them by surprise, then you have, to a certain extent, been able to minimize
the damage that fabricated evidence can cause.
Diokno On Trial; Techniques and ldeals of the Trial Lawyer 59

TESTIMON IAL QUALI FICATIONS
Now we have taken up the rules on relevance and admissibility and

we'll take up now the question of testimonial qualifications. ExcePt in those-
cases wher6 there is an ovegiding public interest, that is, in the matter of
privileged relationships bf privileged communications, any person who
iras theiapacity to perceive and to make known his perceptions, regardless
of age or mental conditiorL can be a witness.2e
So you come up very often with this question: Can Yperson who is
insane be a witness? The answer is yes, as long as he is testifying during
one of his lucid moments about something that transpired during one of
his lucid moments. Now this is a matter of very unlikely occurrence but
it can happen. Remember that the definition of legal insanity and medical
insanity are very different.
As far as the law is concerned, a person need not be one hundred

percent sane; it is enough if he understands the nature of what is happening
around him and if he can communicate that. That he mighi believe in
ghosts, that he might believe in spirits, these are signs that might indicate
medical insanity but would not affect the testimonial qualifications of a
witness. However, they could affect the weight to be given to his testimony.
So if you know that a person believes in ghosts and spirits, and you can
somehow bring that out and connect it to what he or she is testifying to,
then you would have scored a point diminishing the credibility of that
particular witness.3o
Imentioned "privileged relationship" as a rule for excluding

witnesses.3l There are three cases of such a privileged relationship' First,
marital relationship. No husband can iestify against his wife without her
consen! or vice versa, except in a civil case by one against the other, or in
as criminal case for a crime committed by one against the other'32 Second,
parental andvfrlial privilege.33 Third, we have what is known as the "dehd
man's rule."s This means that in a moqetary claim against a deceased person
or a transaction having taken place during the life of the deceased person,
the claimant cannot testify to any matter of fact that took place during the
life of the deceased person. These are the privileged relationships.
Privileged'communications, of course, come down to the marital

confidences, which will appty even if the marriage is already terminated.35
Neither husband nor wife can be questioned as to what was said to him
or to her by the other during their marriage. This holds true even after the
60 Diokno On Trial:Techniques and ldeals of the Trial Lawyer

:rarriage is ended. Attorney and client, doctor and patient, priest and
:enitent and of course, a public officer in connection with matters that
-e acquired knowledge of during the time that he was in office which
::re court should determine would be contrary to public interest for him
: , disclose, are the other privileged communications.36
6. OBTAIN AND PRESERVE THE EVIDENCE FOR THE TRIAL

Sixth, how do I obtain the eoidence I need and preseroe it for use at
:)w trial?
There are of course, judicial and extral'udicial methods of getting and

::eserving the evidence. Under iudicial methods, we have -
1. Discovery and depositions which you will find in Rules 23
to 29 ol the Rules of Court;
2. Perpetuation of testimony which you will find in Rule 2437
and Sections 72,13 and 15 of Rule 119;
3. Subpoenas and subpoenas duces tecum which you will find
in Rule 21; and
4. Search and seizure or search warrants which vou will find
in Rule 126 of the Rules of Court.
These are all judicial methods of taking and preserving the evidence,
think that we do not need to go into any great deiail here. We rarely
.::rcl I
.:.e these methods. Searches and seizures are generally used only by the
:rosecution. Only the prosecution gets search warrants because you have
: r establish the commission of an offense.
Subpoenas * the case is already in court and if you get a subpoena tt is

:::ostly a subpoena duces tecum to aprtblic officer to produce certain records.
.: vou get a subpoena ad testit'icandttm, it is usually only with respect to a
:.rrorable witness and you are iust protecting yourself in case that witness
:.rils to appear at the date of the trial.
Incidentally, that is a very good practice. I strongly recommend that

.olrtalktoallof your witnesses and tell them, "Huwagkayong magalit pero
:.4t ipilitan akong kumuha ng subpoena para sa irLyo, sapagka't kung hindi kayo
:,tkarating sa husgado baka magalit sa akin artg hukont at ipawalang-bisa ang
'.:ury kaso," (Please don't be angry but I will have
to get a subpoena that
. . ill be served on you. The reason is because the court might get mad at
:re if you dont attend and even our case may be jeopardized.)
Diokno On Trial:Techniques and ldeals ofthe Trial Lawyer 6l

THE IMPORTANCE OF DISCOVERY AND DEPOSITIONS
Discovery and depositions and perpetuation of testimony are

substantially the same except that in the first case, discovery and
depositions, the case is already fiied, whereas in the case of perpetuation
of testimony, the case is not yet filed but expected to be filed, and these are
provided for in the Rules.38 I feel that there is not very much we have to
worry about in this matter except that I would like to see more use made
by practitioners of requests for admission.3e I do not find enough use of
request for admission.
I find that depositions can be very, very important but they are very
expensive, because you have to hire a stenographer and you have to pay
thc notary pubiic. So depositions are expensive. However, you do not spend
much on a request for admission. If you had a request for admission which
is denied by the adverse party and you later can prove that their denial
was unfounded, you are entitled to the payment of costs and reasonable
expenses in proving that evidence.
To give you an illustration of how important depositions are during

the trial of cases, let me tell you about a case I tried about 20 years ago.
I was representing the widow of the general manager of a partnership.
It was a partnership of four brothers and one of them had died and I
was representing his widow. Let us cali him X. This was shortly after the
Liberation. The articles of co-partnership and the books of account had
disappeared. The important part there was the brothers received war
damage amounting to very close to a million pesos and the brothers of X
were only giving the latter's widow about one hundred thousand pesos.
It was very important for me to try to locate some records of this

partnership and finally I was able to locate the income tax returns of the
partnership of the last vear before the occupation. However, the income tax
returns did not contain a balance sheet. It did not say what was the capital
of each partner. It contained oniy the distribution of the profits among
the partners and it was important for me to establish that the profits were
being distributed according to capital participation. Because if that were
true and my client's husband had the highest percentaEe of profits in the
income tax returns, he wouid therefore also have the highest participation
in the capital and therefore the biggest share of the one million pesos.
Without the articles of incorporation, without anything e1se, and the
wife did not know anything about the partnership because she was not a
member, I had to depend only on a partner. And all of them were hostile.

- \'as worried that if I brought this out directly, they would come up with
\rme excuse and say, "Since he was the manager, we Save him a bigger
-hare in the profits, but our capital was the same." I didn't know how to
:o around this, but finally I decided to try my luck.
I took the deposition of one of the partners, the least intelligent among
:rem. I spent the first day deliberately asking him questions where he could
rnswer me in a way as if he were Putting down my case just to build up
^rs confidence. In the middle of my second day of deposition I asked him
:his question very innocently: "Of course, you were dividing your Profits
:r accordance with the capital?"
Without thinking very much, he answered: "Oh yes, we divided the
rrofits according to capital." I had gotten what I wanted. Right after that,
- still continued asking him stupid questions because I did not want his
.:l'yer to realize what I was after. So we finished the deposition in two
javs. I only wanted one question and one answer there. The rest were, to
tte, "basura. " (garbage)
Come the date of tdal, I presented the deposition and I could see the
.mile on my opponent's face. After presenting it, I Presented the income tax
:eturn and then I saw my opPonentt smile suddenly disappear, because
re had realized that I got what I wanted in the deposition. And now I had
:he basis to prove my point because my next witness was an accountant,
: CPA (Certified Public Accountant), who testified that according to
his computation based on the percentage of profit, my client's husband
:ctually owned 69 percent of the partnership capital. So on that basis, my
:lient having no childrerl approximately 55 percent belong to her as the
.urviving spouse.
EXTMJUDICIAL METHODS OF GETTING EVIDENCE
What about the extrajudicial methods of getting the evidence? This

is one problem we are constantly faced with everyday of our lives as
practicing lawyers. I do not know how other lawyers oPerate. I will only
iel1 you how we operate in my law office and please don't misunderstand
me. When I give you examples from my own experience or teil you how
n'e operate in my office, it is not because I think this is the best or the only
rvay, it is only as an example of wha! perhaps, you should do.
VVhen a client comes into the office, the first thing that we do is we
open a fi1e folder for him. Our file folders are standard file folders but
Diokno On Trial Techniques and ldeals of the Trial Lawyer 63

actually we have two file fasteners (one on each side) and on the left
side is where we keep the basic data concerning the client. That basic
data consist of three things: Firs! the Retainer Record (Form 1, see Figure
9); second, Things to Do - Facts (Form 2, see Figure 10) and third, Things to
Do - Law (Form 3, see Figure 26). These three records are kept here, actually
only three sheets of paper.
Permit me to illustrate very briefly the way we prepare for a trial in my

law office. Every case that comes into the office is assigned the standard
8-712" by 14" folder. The first document filed in the folder is the Retainer
Record (Form 1, see Figure 9). At the back of the Retainer Record, spaces are
provided for notes of the initial interview with the client. At the bottom of
the Retainer Record is the space for the retainer's fee.
The record also indicates whether the client is a new or an old clien!
or a general retainer client engaging the law office on a particular case;
the person who introduced him to us and the address, telephone numbers
and relationship of the person introducing and of the client. We also note
down the residence certificate on the form. This will do away with asking
him for his residence certificate from time to time. Other data that are put
in the retainer's record are the name of the case, the names of adverse
parties, adverse client's counsel and so on.
Upon completion of the Retainer Record, the lawyer in charge of the

case is required to fiIl out two forms which will be his guide in the handling
of the case. One is for the facts of the case (Things to Do - Facts, Form 2)
and the other is for the law of the case (Things to Do - Law, Form 3). The
lawyer in charge should number each separate fact or investigation he
wants. Then the next line is headed What; in other words, what things to
do. Then the next one is Assigned to. Then we put the initial of the lawyer
in charge of doing it so we will know who is going to do the job. It could
be that the client is the one who will have to do it or it could be others
indicating that we may have hired detectives or experts to do something.
And then, equally important are the last two columns for date: Date Due
and Date Done. So you see this form is actually a record of what to do as
far as the facts are concerned.
While the client is being interviewed and while entries are being made
in the Retainer Record (Form 1), entries are also being made in Things to
Do - Facts (Form 2, see Figure 10). This Things to Do - Facts is a very simple
piece of paper and all it has actually is just these columns: Number, What,
Assigned to, Client, Office, Date Due and Date Done.

'.
- .'t
go along interviewing the client and studying the case, we note
- ,.. thr- facts that we need evidence about. For instance, the client
vou on an accident case. The first thing that you would want
. .' :'( a copy of the police report, if any, and photographs. So you put
- - - - - : .)ne, What police report. The next column is, who is going to get
-
:- . - .'. rll it be the client or will it be the office? It depends. Sometimes
.
:-. -- :1t is a relative of the policeman and it will be very easy for him to
: - --r .opv of the police report. Sometimes it is easier for the office. So if
' . ':.- client, just put a check mark there to indicate that it is the client's
---: :.iL.ility to bring that in. If it is your office's responsibility, you not
- : -:t .r check mark. You aiso put the name of the lawyer or the employee
- responsible for getting that particular document. It could be a c1erk.
- . : - s.rv his name is Jose Cruz, then it could be JC so you will know that
:- -- - the man in the office in charge of getting these facts.
liren you give him a deadline. Because if you don't givc people
: - .:. Lnes, things will never get done. You know that because you and I
- -:... do the same thing. We work 24 hours before the deadline and the
- j.rri we ask for an extension. This Date Done is very important because
:
'.: llon't put a Date Done, and
vou arc reviewing the record of your case,
:-. -..1ps three months later you may forget whether you already had the
,- :.t,report or not. So once this Date Due is entered then the Date Done
:
- l,e entered when the job is completed.
So you have now a running

' -,.rrr-l of al1 the f acts that you
THINGS TO
DO - LAW
r-. .:r.r'e should be researched and the
. :.lence that you beiieve shoutd be
:':ained, who is to get them, when

- :. to be done, and whether it has
-'-
L'n done or not. This is kept here on
' 'e left side of the folder so that it's
.rsv for you to refer to it while the
: leadings and other records are kept
:r the right side.
Then the third form, Things to Do

- Law (Form 3, see Figure 26), actually
.hould be Issues to Research, but in
order to make it the same, we call
it the Things to Do - Law form and
actually it is of course, very, very Figure 26 Things To Da - Law (see page 123)

similar to Things to Do - Facts, except that you no longer leave a line for
the client because the ciient is not to do any research in law. And all you
have is a "number," instead of Whag you have lssue, Assigned To, Date
Due and Date Done.
A question came up recently in I am handling. A prosecution

a case
witness was called to testify. This prosecution witness had an extrajudicial
statement against the accused. But somehow, one of the other accused,
not my client, must have approached this witness and talked to him, so
when the witness testified, he s aid: " Hindi po totoo ang sinabi ko sa statement
na 'yan, pinilit lamang ako." (l was just forced to make that statement,
it's not true.)
Question: Is this statement admissible to prove what is stated in the

statement? Can it be used as independent evidence of the substantive issues
or is it useful only to impeach?
The authorities are divided, but the weight of the authorities (Wigmore
and company), hold that that statement is good only for impeachment. It
cannot be used as a proof of the truth of the matters stated in the statement.
It can only be proof of impeachment of this witness so that his credibility
is thereby affected. The reason for this is that the accused are entitled to
cross-examine.
Now if the witness on the witness stand said, "I do not know anything
about this. I was only forced to give this statement."
How him on that? He has not testified

are you going to cross-examine
against you. And you cannot cross-examine him on a statement he gave out
of court. That is why the weight of evidence is, it is not admissible except
for purposes of impeachment.
However, as I said, there is a division; some courts hold that it is

admissible as proof of the substantive facts but they are in the minority.ao
This is the kind of task you should include in the form Things to Do - Law
(see Figure 26).
EXAMINE DOCUMENTS CAREFULLY,

INCLUDING THOSE FROM YOUR CLIENT
Let's go back now to the problem of how to get evidence. Well, most
of the time you depend on your clicnt. Most of the cases you have involve
contracts, documents, letters, and you depend on the client to furnish you
\\'ith the necessary data. Here, I must wam you never to accept your client's
documents without submitting them to a very thorough examination.
I reca11 one case I handled as a very young lawyer. It was the case of
acknowledgment of a natural child. I represented the mother of the child
and one of the documents she gave me, the one that she said is the most
important, was a letter from the man admitting the parentage of the child.
But 1ucki1y, I had other documents signed by the man and when I compared
these, the letter turned out to be false.
So I cross-examined my own client and she broke down and admitted

that she had caused that letter to be fabricated, thinking that it would help
her case. I told her, "We don't need it, we have enough evidence outside
of this. If we present this and it turned out to be fabricated, for in fact it is,
rrur whole case will go out the window."
So be very careful even with your own client. Sometimes your client
tells you: "Weil, you know it is that way; only we cannot do it. I don't
have any witness." This is also important from the point of view of cross-
eramination. How does a practicing attorney reason about these matters?
\Ve11, the answer, I think, is this: You try to put yourself in the place of
the person who is supposed to have done or not to have done something,
;rnd you ask yourself:."If I had done this act, what would I normally do
as a consequence?" And then you try to see if you can get evidence of the
other acts that follow.
THINKING FOR CROSS-EXAA^INATION
For instance, in the case of rape, one of the most imPortant factors
that is considered by the courts, especially when the girl is young and still
living with the parents, is when she was free, did she report the rape to her
parents? Why? Because the normal reaction of a girl who has been raped
is, the moment she is free and she sees her mother is to cry and say what
happened. So if she did not, then maybe the rape was with consent.
You can think of a thousand and one examples, and this is also a very
way of thinking when you are cross-examining the witness.
r-rseful
When the witness says he was present at an occasion on such a date and
saw such a thing, then what do we normally ask? We ask the circumstances
surrounding that event. We don't normally go into the root of the matter,
because he will only be repeating what he said in direct examination, so

we go around all the surrounding circumstances. Because if he were there
he would have seen and heard things. If he did not, the chances are, he
was not there.
This is the kind of thinking that I follow, but perhaps there may be
other better ways. But this is the one I have been following for many years
and since we are taiking about cross-examination also, I might just as well,
before I skip to the next point, suggest this: If it is at all possible, in your
{rst two or three questions on cross, put the witness off balance.
How?
There are several ways. You may know something about the witness
that can affect his credibility that he does not know you know. Or you may
ask him some question that is not directly related to the case apparently.
Well, what I do normally is this: I ask him questions that will bring out
some contradictions in his answers.
But the iudges here can tell you that cross-examination is grossly
overrated. It is only in exceptional cases that a case is won or lost by
cross-examination. Ninety-five percent of cases are won or lost by the
strength of your direct evidence and your ability to present it in a way
that convinces the judge. This means that you have to know the judge, not
in the improper way, but you have to know how the judge's mind works;
how he reasons.
For instance, there used to be a judge who is now retired, who was a
judge of first impression. That judge would rely heavily on the testimony
of the first witness who gives him a good impression even if the testimony
is weak and contradicted by later witnesses. On the other hand, there are
judges who are judges of last impression. In other words, in presenting
your witnesses, you should reserve your best witness as the last one.
There are judges who will convict the accused no matter how good
your defense is. What will you do under such conditions?
You continue to try your case before him but with an eye to bringing the
case up on appeal. You should see to it that he commits mistakes without
you pushing him into committing these mistakes. Mistakes for instance on
rulings on evidence and particularly in the showing of bias. Because you
will find that most judges who are prone to convict the accused are not
biased against individual defendants, but against defendants as a whole.
And this bias is shown in the course of the trial if you know how to let it

be shown. Somehow you can do this if you know how his mind operates
and you know how he reacts to certain situations as you go aIong.
This is why one of the things I do with witnesses who have never
testified in court before is to instruct my client to bring them to the sala
(courtroom) of the judge where they will testify, several days before the
hearing. They sit among the people and watch the proceedings, so they
get used to how it is like being in court. When they go there at the date of
ihe trial, "hindi sila maninibago." (They will not find it unfamiliar.)
7. PRESENTAND OFFERYOUR EVIDENCE EFFECTIVELYAND

PRESERVE EXCLUDED EVIDENCE FOR APPEAL
Seoenth and last, hozo do I present and offer the eztidence at the
trial?
As I said earlier you have to know the methods, ways of thinking, and
characteristics of the presiding judge, but do not be misled. Some judges
will tell you, "Oh, that's enough already, and ihen when you go uP on
appeaL, "kulang ang ebidensiya mo." (Yov evidence is insufficient).
In those cases, whenever that should happen, then simply make of

record what other evidence you have to offer and make of record that it is
the iudge who is stopping you from presenting this other evidence' This
is so because the judge is entitled under the rules to stop the Presentation
of evidence at any time that he believes it to be unnecessary. There is that
provision in the Rules of Court.al So he is not going beyond his power in
stopping you, but he is human and he may make a mistake.
So to protect yourself, you shouid make it of record that the judge

is stopping you and also make it of record what witness you have, what
documents you have, and what would be the substance of their testimony,
so that on appeal, at the very worst, what can happen would be a ne'lr' trial
to present this witness but not an outright dismissal of your action because
of insufficiency of your evidence.
QUESTIONING THE FORGETFUL WITNESS
Now there is one last point I would llke to make, because I have heard
this very often and it is really nothing more than carelessness on the part
of the counsel.

Very often you have a witness who is rather forgetful or who cannot
express himself very well. You ask him, 'And what else happened?" and
he says, "No more." And yet there is something more you want to bring
out from him. But you cannot do anything anymore, because the witness
said, "No more." So what is the correct form of asking?
The answer is, "What else do you remember happened?" Don't forget
that phrase, "do you remember." Why? Because under our rules when
you have exhausted the recollection of a witness, you may ask a leading
question. So the proper form is, "V\4rat else happened that you remember?"
So he says, "No more." Okay. Ily'hat you have established is not that nothing
else happened, but only that he does not remember anything else that
happened. So then you can refresh his recollection by a leading question. I
find many of us, especially as we grou, older and think we know everything,
forget to do this very simple thing.
THE PROBLEM OF COMPROMISED WITNESSES
One more point. How do you preserve evidence extrajudicially? Or

to put it more bluntly, how do you keep your witness happy so that the
other side cannot get to him?
This is a very practical question and the only answer that I can give you
is, that it has to be your client. You as a lawyer, can only do these things:
First, take his statement; if possible take the statement by tape recording.
However, remember that there is an Anti-WiretaPping Lawa2 and if you
record such a statement you must make it of record in the tape that the
person you are talking to knows that and consents to the recording of your
conversation, so that you can use it later on.
Why do I propose this procedure? Because most people, if they have

signed an affidavit and have also been tape recorded, will not change
their testimonies anymore. The worst that can happen if they change their
mind is that they will iust absent themselves at the hearing, if they have
been spoken to by the other party. In which case you can always use the
coercive process of the law to see to it that they go to court. And since you
have now their affidavits and their voice on tape, that voice is an important
one. When they hear their voice coming out of the tape, as a general rule,
they will admit what they had told you.
On the other hand, you have to be careful in advising your client. You
should tell your client not to antagonize his witness. Warn your client

against giving money to the witness. Warn your client against giving gifts.
Sometimes you would like to find out what is the evidence of the other
side. Often your client can give you that information, especially in the
rural areas, long before the trial. He knows who are the witnesses of his
opponent. So you have enough time to prepare your cross-examination.
But sometimes, in a city like Cagayan de Oro, which is highly urbanized,
in criminal cases, you may not know who are the surprise wihresses of the
police. How do you find this out? Well, the answer usually is, you make
friends with the investigators and so you find out. There's nothing wrong
(with this). It is not immoral. You are not asking them to change anything;
vou are simply preventing surprise witnesses.
Thank you. [Applause]
Jose W. Diokno, Problems in the Presentation of Evidence, in REoENT DEVELopMeurs N Lew

ero Junrseauoerce: A Serecrron or LEcruREs GvEN ar VARrous GENEML Law PRAcncE lNSTrrurES
1971-1974 62-82 (Casiano O. Flores ed., U.P Law Center) (1975).
J.M. WGMoRE, A TREerrse On Tre Arcro-AuearcnN Sysreu Or EvroeNce h Tar,rr Ar Coi,r[4oN LAW
(3d ed., 1940).
3 IRV NG GoLDsrErN & Fneo LaNe, GorosreN Tnrnl Tecrrroue (2nd ed. 1969).
4 RULES oF CouRr, Rule 133, SS 1-7.
5 Rures or Counr, Rule 131, S 1: "Burden of proof is the duty of a party to present evidence
on the facts in issue necessary to establish his claim or defense by the amount of evidence
required by law.'
6 Rures or Couar, Rule 131, $$ 2-4.
7 Rurrs or Couar, Rule 129, $$ 1, 2 & 4:
"SEC. 1. Judicial notice, when mandatory. - A court shall take judicial notice without the
introduction of evidence, of the existence and territorial extent of states, their political history
forms ofgovernment and symbols of nationality, the law of nations, the admiralty and maritime
courts of the world and their seals, the political constitution and history ofthe Philippines, the
official acts of the legislative, executive and judicial departments of the Philippines, the laws
of nature, the measure of time, and the geographical divisions.
SEC. 2. Judicial notice, when discretionary -A court may take judicial notice of matter which
are of public knowledge, orare capable of unquestionable demonstration, oroughtto be known
to judges because oftheirjudicial functions.
SEC.4. JudicialAdmissions. - An admission, verbalor written, made by a party in the course of

the proceedings in the same case, does not require proof. The admission may be contradicted
only by showing that it was made through palpable mistake or that no such admission was
made."
See Rures or Counr, Rule 129, S 4.

RuLES oF CouRr, Rule 10, S 8: 'An amended pleading supersedes the pleading that it amends.
However, admissions in superseded pleadings may be received in evidence againstthe pleader;
and claims or defenses alleged therein not incorporated in the amended pleading shall be
deemed waived."
10 ln Javellana v D.O. Plaza Enterprises, lnc. (32 SCRA 261), the Court stated that: "Having
been amended, the original complaint lost its character as a judicial admission which would
not have required proof, and became merely an extrajudicial admission, the admissibility of
which, as evidence, requires its formal offer."
11 The present Iaw on dangerous drugs, Republic Act No. 9165 (2002), prohibits possession of
a dangerous drug, "unless authorized by law."
12 Rures or Couar, Rule 133, SS 2 & 4:
"SEC. 2. Proof beyond reasonable doubt. - ln a criminal case, the accused is entitled to an
acquittal, unless his guilt is shown beyond reasonabl€ doubt. Proof beyond reasonable doubt
does not mean such a degree of proof as, excluding possibility of error, produces absolute
certainty. Moral certainty only is required, or that degree of proof which produces conviction
in an unprejudiced mind."
"SEC. 4. Circumstantial evidence, when sutficient. - Circumstantial evidence is sufficient for
conviction if:
(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven;
(c) The combination of all circumstances is such as to produce a conviction beyond
reasonable doubt."
Rures or Couar, Rule 131, S 'l: "Burden of proof is the duty of a party to present evidence
on the facts in issue necessary to establish his claim or defense by the amount of evidence
requiredbylaw.'lnacaseofpossessionofdrugs,theaccusedhastheburdenofprovingthat
he is authorized to possess the drugs. The Court held that: "When an exception or negative
allegation is not an ingredient ofthe offense, and is a matter of defense, it need not be alleged
The phrase "unless laMully authorized" in the '1st paragraph ofArt. 190, states an element of
defense. Therefore, it is not necessary to allege in the information (and prove) that the accused
is not authorized to possess opium." (U.S. v. Chan Toco, 12 Phn.262). On the other hand, in
illegal possession of firearms, the prosecution bears the burden of proving that the flrearm is
without license. That the accused held the flrearm with animus poss/dendi and without the
corresponding license therefore, is an element of the crime of illegal possession of firearm.
(People v. Camoya( CA-G,R. No.6142, l9April 1951).
RULES oF CouRr, Rule '131, SS 2 & 3 and subsections. Soe, e.9., continuing presumption of
insanity once it has been duly established, People v. Elizaga, 73 SCRA 524 ("Once a mental
condition is shown to have existed, itwillbe presumed to have continued, provided the condition
is of a continuous nature. Thus, where insanity has been established, it will be presumed to
have continued, provided it is of a chronic or permanent nature; and if the insanity, admitted
or proved, is only temporary, occasional, or intermittent, in its nature, the presumption of its
conlinuance does not arise. The presumption ofthe continuance ofa condition once established
also applies to sanity."): presumption of guilt arising from unexplained flight, People v. Extra,
72 SCRA 201,
RULES OF CouRr, Rule 133, SS 1-7. These provisions cover "preponderance of evidence"
in civil cases, "proof beyond reasonable doubt" in criminal cases, "substantial evidence" in
administrative and quasi-judicial cases, "circumstantial" evidence, extrajudicial confessions,
the power of the court to slop further evidence and evidence on motions.
to Revised Penal Code, arl.114f[2.
7) Diokno On Trial: Techniques and ldeals of the Trial Lawyer

17 Revised Penal Code, atl. 1141[2] Rures or Counr, Rule '133, S 3: "An extrajudicial confession
made by an accused, shall not be sufficient ground for conviction, unless corroborated by
evidence of corpus dellcli."
18 Rures or Counr, Rule 128, SS 3 & 4:
"SEC.3. Adnissibility of evidence. - Evidence is adm ssible when it is relevant to the issue
and is not excluded by the law or rules.
SEC. 4. Relevancy; collateral matters. - Evidence must have such relation to the fact in
issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall
not be allowed, except when it tends in any reasonable degree. to establish the probability or
improbability of the fact in issue."
19 Rures or Couqr, Rule 130, SS 20 - 24.
20 Rures or Counr, Rule 128, S 4.
21 Rures or Counr, Rule 130, SS 34.

22 Rures or Counr, Rule 130, S 9.
23 RULES oF CouRr, Rule 130, $$ 36-47.
RULES oF CouRr, Rule 130, SS 26 - 35, 50-5'1 .
RULES oF CouRr, Rule 130, $ 28: The rights of a party cannot be prejudiced by an act,
declaration, or omission of another, except as hereinafter provided."
26 Prrr. Corsr. art. 111,514.
27 People v. Badilla, et. al.,48 Phil.718; People v. Ola, t-47147, Jely 3, 1987; People v.
Condemena, G.R. No. L-22426, 29 May 1968, 23 SCRA 9'10, 919 (1968), People v. Narciso,
G.R. No. L-244484, 28 May 1968, 23 SCRA 853 (1968).
28 Rures or Counr, Rule 130, $ 37.
29 RULES oF CouRr, Rule 130, S 20.
30 Disqualification by reason of mental incapacity or immaturity is covered by Rule 130, Sec.

21 of the Rules of Court. Child witnesses are now covered by Supreme Court Resolution No.
A.N/. No. 00-4-07-SC daled 21 November 2000. effective '15 December 2000.
31 RULES oF CouRI, Rule 130, S 20. "Except as provlded in the next succeeding section, all
persons who can perceive, and perceiving, can make known their perception to others, may
be witnesses..."
Rures or Counr, Rule 130, $ 20, now S 22: The rule now includes criminal cases "committed
by one (spouse) against the other or lhe latter's direct ascendants or descendants."
33 Rures or Couar, Rule 130, S 25: "No person may be compelled to testify against his parents,
other direct ascendants. children or other direct descendants."
34 Rures or Counr, Rule 130, $ 23: "Parties or assignors of parties to a case. or persons in whose
behalf a case is prosecuted, against an executor or adminastrator or other representative of
a deceased person, or against such person of unsound mind. cannot testify as to any matter
of fact occurring before the death of such deceased person or before such person became of
unsound mind."
35 RULES oF CouRr, Rule 130, S 24 (a): "The husband or wife, during or after the marriage,
cannot be examined without the consent of the other as to any communication received in
Diokno On Trial: Techniques and Ideals of the Trial Lawyer 73

confidence by one from the other during the marriage except in a civil case by one against the
other or in a criminal case for a crime committed by one against the other or the latter's direct
descendants or ascendants."
36 RULEs oF CouRr, Rule 130, Sec. 24(b) to (e).

37 This Rule was formerly Rule 134 of the Rules of Court, entitled "Perpetuation of Testimony."
38 RULES oF CouRr, Rule 23, 51; Rures or Counr, Rule 24 SS 1 & 2.

39 The present rules impose sanctions for failure to serve written interrogatories, and for failure
to file and serve requestfor admission. Section 6, Rule 25 provides: "Unless thereafter allowed
by the court for good cause and to prevent a failure ofjustice, a party not served with written
interrogatories may not be compelled by the adverse party to give testimony in open court, or
to give a deposition pending appeal." Section 5, Rule 26 provides: "Unless thereafter allowed
by the court for good casue and to prevent a failure ofjustice, a party who fails to file and serve
a request for admission on the adverse party of material and relevantfacts al ussue which are,
or ought to be, within the personal knowledge of the latter, shall not be permitted to present
evidence on such facts."
40 ln Payo v. Court of Appeals, G.R. No. L-36809, 24 February 1984, the Supreme Court, in
ordering a newtrial based on recanted testimony, declared that "(g)rant(ing), that complainant's
sworn stalement constituted impeachment evidence, ... it nevertheless partook of lhe nature
of material newly discovered evidence that should properly be presented in a new trial. The
practice of this Court has been to grant new trials in such very exceptional instances as when
it is made to appear that there was no evidence sustaining the judgment of conviction other
than the testimony of a witness who is shown to have made contradictory statements as to
material facts, and ... that under all the circumstances of the case, proof that the witness had
varied or modified his testimony out of court and after the trial would lead the trial judge to a
different conclusion (citing U.S. vs. Dacir,26 Phil.204). See a/so People v. lvlontejo, G.R. No.
133475,26 March 200'l and Molina v. People, G.R. Nos. 70168-69, July 24, 1996.
41 Rures Or Counr, Rule 133, Sec. 6: "The court may stop the introduction of further testimony
upon any particular point when the evidence upon it is already so full that more wilnesses to j
the same point cannot be reasonably expected to be additionally persuasive. But this power
should be exercised with caution.'
42 Under the Anti-Wiretapping Law (1965), a recording of a private conversation is deemed

unlawful, if made without the consent of the all the parties to communication. The law states
that, "lt shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word
by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-
talkie or tape-recorde( or however otherwise described...." Republic Act No. 4200 (1965), as
amended.

THINGSTO
44a 7716't cfi'4
DO - LAW
NO
ry tuL-64 fu,.t- /<la*a Vl

I 4.6 c/rtrL 4r4@ 21,zab
Figure 27. Things to Do - Law (Form 3) with Senator Diokno's handwritten entries in relation to a
human rights case he handled durinq marlial law.
Diokno On Trial; Techniques and ldeals of the Trial Lawyer 75

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Ftgure 28. Senatar Diokna's handwritten notes an confessions which forned Dan of his Triat
PART II
CHECKLISTS
"lncreosingly as you grow older, the volues thot you have learned
from us, your porents, ond lrom your Christion faith, will be colled
into question - by you or by others. Why be honest when it pays to
be dishonest? Why be foir to others when they ore unfoir to you?
Why fight for others when they won't fight lor you - ot even for
themselves? Why think Ior yourself when it is eosier to let others
think Jor you? Why lead when it is less troublesome to obey? Why
hove principles when othets don't - ond they often get awoy with it?
Why be good when it seems so much more pleasant to be bod?
The onswer, I think, is in whot lile meons to you. lJ lile meons

hoving o good time, money, fome, power, security, then you don't
need principles; all you need ore techniques. ln fact, it's better not
to hove principles; they would just get in your woy. On the other
hond, if life means more than those things, iJ happiness counts more
thon o good time, developing your talents more thon developing
weolth, respect more thon Jame, right more than power, ond peoce
of soul more thon security; if deoth doesn't end liJe but transforms
it; then you must be true to yourself and to your God, ond to love
ond truth, good ond beouty, and justice ond freedom, thot ore His
other nomes ond thot He hos mode port of our humon noture.
You will hove to decide for yowself , Chel, which of those things
life means to you, Neithet I nor onyone else con decide this lor you.
But perhops this will help you decide: Thot even those who know
they do wrong feel compelled to convince others ond eventuolly
themselves - that they ore doing right. So the mon ol greed olten
gives generously to chority; the megalomonioc poses os o messioh;
the coword hides his feor under the mosk of being reolistic; and the
guilty wosh away their guilt, like Pilote, by woshing their hands with
the excuse thot "it isn't my choice" or "it isn't my job" or "l con't do
onything obout it."
- Jose W. Diokno
Letter lrom prison to his son
Jose ll,onuel "Chel" Diokno
1974
i
PROCESSING A CASE FORTRIAL
L lnlerview client
2. Morsholl the evidence
3. Reseorch the low
4. Determine need for provisionol remedies
5. Filepleodings/motions
6. Arronge file for pre-trlol
7. Stolement of issues
8. Focl chort
9. List of witnesses
10. Lisl of exhibiis
I L Advisobility of discovery
I2. Judgment before lriol or setllemeni
13. Prejriol plon
14. Before pre-triol
15. Triol brief
I6. Afler prejriol
I 7. Before triol
18. Motions, notices, subpoenos
19. Finol review before triol
20. Triol
Diokno On Trialr Techniques and ldeals ofthe Trial Lawyer 79

1. Interview Client
1.1 Try to get all the facts and relevant documents
1.1.1 Why did client choose you?
1,.1,-2 Has client seen another lawyerbefore seeing you?
lArho? 14/hy didn't the other lawyer take the case?
1.1.3 Is client a "shopper"?
"1.1,.4 Is client under the influence of a layman, relative,
f riend, co-worker, etc.?
1.1.5 How is the matter affecting client emotionally?

1.1.6 Size up client for honesry motives, neurotic
tendencies, fi nancial standing.
1.1.7 Listen both to what the client says and the way the
client says it, even the gestures, body language and
tone of voice. Be alert also to what the client doesn't
mention, doesn't want to say, or can't say without
help as this may become crucial in the case.
1,1.8 Be aware that you are also communicating with your
client by your own choice of words, body language,
gestures and tone of voice. Pay attention not only
to the expressed content but also the emotional
attachment and your reaction to the client. Avoid
expressing or showing approval or disapproval of the
client's actions or beliefs, or story
1,."1.9 Do not, at this initial stage, challenge or confront the
client. Ask questions on areas omitted or facts not
mentioned in the spirit of helpfulness, not challenge.
Leave cross-examination for Iater interviews,
1.1.10 Avoid emotional over-identification with client, or
cultivating a dependency relationship.
7.2 Discuss and if possible fix fee.
1.3 Fill in RETAINER RECORD (Form 'l).
1.4 List facts to be investi8ated and other things to be done by
vou and by your client (Form 2, THINGS TO DO-FACTS).
1.5 List issues of law to research (Form 3, THINGS TO DO-LAW).
1.6 Clearlv define goals and limitations of vour retainer. There is
only so much that you can do as a lawyer, and only so much
Iour client can pay.
s0 O ot.o On Tnal Technrques and ldeals of rhe Trial Lawyer
1.7 If at all possible, iake some action for the client beforc he
Ieavcs your of6ce.
Marshall the Evidence

2.1 Obtain names and addresses from client of all persons whom
client thinks -
2.L.L Will testily for clicnt
2.L.2 Will testify for oPPonent
2.1.3 Have knorv]edge of facts but are not u'illing to testifv
or mJy hJVe drfficrrlt\ te'iifvrni
2.2 Go though all client's documents, official reports, neu spapcr
clippings, etc. for additjonal names and docLiments
2.3 Visit crime scene/place of accident ol occurrence.
2.3.1,. Prepare diagrams/sketches/photographs/maPs
2.3.1. Get names of neiShbors, other possible $'itnesses.
2.4 Use discovery procedures to learn names of oPPonentt
lvitnesses and others who may have knowledS;e of facts (scr'
no.11, post).
2.5 Trace missing u,itness/es, if any (Checklist 4' TRACING A
MISSING PERSON).
2.6 Interview witnesses and try to get statement in \'\'liting or b!
rneans of sound/vidco recording regardless of uhether the
witness is friendly, hostile, reluctant or claims to kno\\ nothing'
2.6.7 Fricndlv$'itness
2.6.1,.1 Be careful oi olc'r-friendl\ \\ itnesses.
2.6) -2 Find out wh\' \\'itness has come forward
and is willing h) testif,v (relationshiP to
client, other motivcs, etc.).
2.6.2 Hostile witness
2.6.2.1 Explain you'rc looking for the truth, and
,ould like to hear the story of the witness'
2.6.2.2 lf thc u'itness rcfuses to talk to you, try to
8et a signed statcment that s/he refuses to
talk, and whY
2.6.2.3 Bring along a neutral observer to t'itness
Your intervie$'
Diokno On Trlal: Techniques and ldea s of the Trial LawYer 81
2.6.3 Reluctantwitness
2.6.3.7 Find out reasons for reluctance and try to
work on securing consent to testify.
2.6.3.2 Get witness to sign statement that s/he does
not want to testify, and why.
2.6.3.3 Bring along a witness.
2.6.4 Know-nothingwitness
2.6.4.7 Get the story of the witness in writing and
signed, showing why s/he knows nothing.
2.6.5 Ask all witnesses
2.6.5.1 For names and addresses of other possibie
witnesses.
2.6.5.2 If they have made opponent/
a statement to
police/anyone else and if s.o, to whom.
2.6.6 Size up all witnesses you interview for strengths and
weaknesses (Form 16, WITNESS GUIDE).
2.6.7 Thank all persons you interview, regardless of how
badly you think they have treated you.
2.7 Examine every document with care and clear up any
alteration or suspicious element.
2.8 Get copies of all documents referred to in the documents you have.
2.9 See checklists -

2.9.7 Checklist 2, OUTLINE OF EVIDENCE RULES
2.9.2 Checklist 3, USING CIRCUMSTANTIAL EVIDENCE
.1- Research the law

3.1 Citing appropriate authorities, list all elements of:
3.1.1 Possiblecauses of action/crime/defenses
3.1,.2 Recoverabledamages
3.2 Settle upon both theory and image of the case (Form 6,
THEORY).
3.2.7 Theory of liability/defense

3.2.2 Theory of damages
Image of case - Factual elements that appeal to the
innate sense of justice of the Court
3.3 Consider problems of:

.)..).1 Jurisdiction over -
3.3.1.1 Person
3.3.7.2 Property
3.3.1.3 Subject-matter
3.3.2 Venue
-f--f-.) Parties - Capacity/real party in interest
3.3.4 Joinder of -
3.3.4.7 Parties
3.3.4.2 Causes of action/crimes
??q Res judicata
3.3.6 Siatute of limitations
.t--)-/ Statute of Frauds
3.3.8 Estoppel -
3.3.8.1 By deed
3.3.8.2 In pais
3.3.9 Extinguishment of cause of action/criminal liability/
criminal action bv -
3.3.9.1 Payment/serr.iceofsentence
3.3.9.2 Release/waiver
3.3.9.3 Abandonment/laches
3.3.10 Compliance with conditions precedent
3.3.10.1 Exhaustion of administrative remedies
3.3.10.2 Submissiontoarbitration
3.3.10.3 Earnest efforts to compromise in suit
between members of family
3.3.10.4 Notice/demandrequired

3.3.10.4.1 BY law
3.3.70.4.2 BY contract
3.4 Brief anticipated -

3.4.1 Objections to evidence
3.4.1'.7 Your evidence
3.4.7.2 Your oPPonent's evidence
3.4.2 Proceduralissues
4. Determine need for provisional remedies
4.7 Notice of lis pendens
4.2 Attachment
4.3 Preliminaryinjunction
4.4 Receiver
4.5 Replevin
4.6 Support pendente lite
5. Draft and file pleadings/motions
6. Arrange files for pre-trial and trial
6.1 Pleadings
6.7.1. After pleadings are closed, segregate or make copies
and file them in your trial folder (or trial book),
properly labeled and tabbed.
6.7.2 Analyze pleadings, noting on margin of each
paragraph whether admitted or denied (if admitted
in part, underline parts denied), and pertinent
paragraphs of the respective pleadings.
6.2 WitnessStatements/Depositions
6.2.7 Arrange alphabetically or in order in which you
exPect to call the witnesses.
6.2.2 Tabeachstatement/deposition.
6.2.3 Underline each exhibit mentioned by and each
important answer of the witness.
6.2.4 Prepare WITNESS GUIDE (Form 16).
5.2.5 Fill in LIST OF WITNESSES (Form 15).
Orokno On Triai: Techniques and ldeals of the Trial Lawyer

6.3 Exhibits
6.3.7 Place all originals of exhibits in separate folder/
envelope, in the order in which you expect to mark
and offer them.
6.3.2 Make copies for your files.
6.3.3 Underline all key statements in copies of exhibits.
6.3.4 Fill in LIST OF EXHIBITS (Form 19).
6.4 Trial Brief

6.4.7 See Nos. 15 nnd 19.7 1tost.
6.4.2 Consider 6ling trial brief and pleadings in one folder
affixed to opposite covers.
6.4.3 Consider filing copies of exhibits and statements/
depositions in one folder also on opposite covers.
6.4.4 Open separate files for statements/depositions of
adverse party's witnesses and adverse exhibits.
7. Prepare Statement of Issues
7 .7 Of Facts
7.2 OfLaw
7.2.1, Substantive Law
7.2.2 Law of Evidence
7.2.3 Procedural Law
8. Prepare FACT CHART (Form '13)
8.1 List ultimate facts. Leave enough space betr.r,een ultimate

facts for evidentiary circumstances and corroborative facts.
8.2 Below each ultimate fac! list evidentiary circumstances and
corroborative facts.
8.3 Opposite ultimate, evidentiary and corroborative facts, list
names of witnesses and exhibits each will identify.
9. Prepare LIST OF WTNESSES (Form 15) and WTNESS GUIDE (Form 16)
9.1 Name, address, age, and other personal circumstances

9.2 Friendly, neutral or hostile?
9.3 Facts to be elicited from witness, if ours; or notes for cross-

examination, if adverse; possible objections to admissibility of
testimony
9.4 Exhibits to be identified by the witness
9.5 Any peculiarities of the witness (e.9., forgetful, talkative, etc.)
and cautions to be given to the witness in final preparation
10. Prepare EXHIBIT GUIDE (Form 18) and LIST OF EXHIBITS (Form 19)
for plaintiff and for defendant:
10.1 Brief description of each exhibit
10.2 Purpose/s it is being offered
10.3 \ /ho will identiff/authenticate it
10.4 Include space for exhibit number; whether admitted or
reiected; who offered it and for what purpose/s
.1.t.
Determine Advisability of Discovery
11.1 Methods of discovery
11.1.1 Oral deposition
1,7.7.2 Writtendeposition
11.1.3 Interrogatories to parties
11,.1,.4 Production, inspection, entry
11.1.5 Request for Admission
17.7.6 PhysicalMental Examination
17.7.7 Bill of Particulars
11.1.8 Request for More Definitive Statement of Claim or
Answer
.l
1 .2 Factors to consider
77.2.7 Consequences of non-availment of discovery
77.2.7.7 Interrogatories to parties - In civil
cases, a party not served with written
interrogatories "may not be compelled by
the adverse party to give testimony in open
court, or... a deposition pending appeal"
unless the court allows it for good cause
shown and to prevent the failure of iustice.
(Sec. 6, Rule 25)
77.2.7.2 Requests for Admission - In civil cases, a

party who fails to file and serve a request
for admission on the adverse party of
material and relevant facts in issue which
are, or ought to be, within the personal
knowledge of the latter, shall not be
permitted to present evidence on such facts.
(Sec. 6, Rule 26)
77.2.2 Importance of need to knon facts

77.2.3 Funds available for discoverv
77.2.4 Which method is most efficacious and expeditious
12. Determine Feasibility of :
12.1 Judgment on Pleadings

12.2 Summary Judgment
12.3 Settling the Case
13. Prepare DISCOVERY (Form 11) and PRE-TRIAL PLAN (Form 11-A).
13.1 Objectives to seek at pre-trial

,l3.1.1 Compromise
13.1.1.1 Openingdemand/offer
13.7.7.2 Acceptable demand/offer
73.7.2 Simplify issues
13.1.3 Amendments
73.7.4 Stipulations/admissions
73.7.4.7 Of facts
1.3.1.4.2 Of exhibits
73.7.4.3 Limiting the number of witnesses
13.1.5 Reference to:
13.1.5.1 Commissioner
13.L.5.2 Arbitration
73.7.6 Court mandated mediation
13.1,.6.1, Prepare strategy for mediation.
73.1.6.2 Explain the process to your client, where it
may lead to, and what to expect from it.
73.7.7 Other matters
73.1,.7.7 ]udge's disqualification
73.7.7.2 Order of trial
.3
1,3.1,.7 Consolidation or Severance
73.7.7 .4 Trial with Assessors
13.2 Prepare and file pre-trial brief.
13.3 Steps to take to attain objective
13.4 Probable objectives of adverse party
13.5 How to counter these objectives
13.6 What to guard against during the pre-trial
14_ Before Pre-Trial
14.1 Review THINGS TO DO-FACTS (Form 2) and THINGS TO DO-
LAW (Form 3) to determine if ready.
14.2 Review files and check arrangement (see No. 6, ante).
15. Assemble Trial Brief, properly tabbed
15.1 Statement of Issues (see PRE-TRIAL PLAN, Form 11)
15.2 PRE-TRIAL PLAN (Form'll) and DISCOVERY (Form 11-A)
15.3 THINGS TO DO-FACTS (Form 2)
15.4 THINGS TO DO-LAW (Form 3)
15.5 LAW NOTES (Form 9)
15.6 LIST OF WITNESSES (Form 15)
15.7 WITNESS GUIDES (Form 16)
15.8 FACT CHARTS (Form 13)
15.9 Blank sheets for notes
16. After Pre-Trial, analyze pre-trial orders
16.1 Determine need and calendar deadline for motion to
reconsider or to amend.
16.2 Modify statement of issues, FACT CHARTS (Form 13), LTSTS
OF WITNESSES (Form '15) and LISTS OF EXH|B|TS (Form 19)

in Trial Brief.
16.3 List additional law issues and fact issues to be briefed or
investigated.
77. Before Trial, go over Trial Brief, as modified after pre-trial order,
and determine if:
17.1 Evidence is available to prove remaining issues of fact
77.2 All anticipated issues of law have been adequately briefed
17.3 Prepare Trial Plan/Order of Proof:
1,7.3.1 Chronological
17.3.2 By themes or issues
77.3.3 Begin and end each hearing with strong witness.
77 .4 Prepare anticipated trial motions.
18. Serve Motions, Notices, Subpoenas

18.1 Motion to Disqualify |udge
18.2 Motion for Severance or Consolidation
18.3 Motion to Strike Out/Expunge Information from the Record
18.4 Motion to Determine Probable Cause
18.5 Motion to Suppress/Exclude Evidence Illegally Obtained
18.6 Motion to Quash Search Warrant
18.7 Notice to Produce
18.8 Subpoena ad testificandum
18.9 Subpoena duces tecum
t9. Final Review before Trial
19.1 Pleadings - Are they properly:
19.7.7 Marked
79.7.2 Arranged for easy access
19.2 Witnesses
1,9.2.7 If your witnesses have executed prior statements,
have you gone over those statements with them?
79.2.2 Are they thoroughly familiar with the exhibits they
will identify?

79.2.3 Have you cross-examined your witnesses so as to
spot and correct their weaknesses?
79.2.4 Have you outlined the testimony of each witness
(WITNESS GUIDE, Form 16)?
79.2.5 Will they be available for the trial?

79.2.6 Have you served subpoenas?
1.9.2.7 Have you given them proper instructions re:
79.2.7.7 Going to scene of accident/crime
79.2.7 .2 Going to court to familiarize themselves

with court procedure
79.2.7 .3 Dressing properly
79.2.7.4 Avoiding laughing or talking about case in
halls, rest rooms, etc.
79.2.7.5 Listening carefully to questions and
understanding them before answering
1,9.2.7.6 Answering truthfully, without thinking
of effects of answer, but visualizing what
actually happened
79.2.7.8 Answering positively, directly, clearly and
politely
79.2.7 .9 Avoiding trick questions
1.9.2.7 .L0 "That is a1l I can remember now."
79.2.7.1.1. Not volunteering information
79.2.7 .72 Not to be surprised about receiving a
subpoena from the court
19.2.7 .73 Not arguing with the lawyer or judge

79.2.7 .74 Not exaggerating or being cocky or smart
1,9.2.7 .1,5 Not losing temper
19.3 Experts
19.3.1 Have you read enough material to familiarize
yourself with the specialized subject/s involved in
your case?

19.3.2 Have you prepared your hypothetical question/s and
reviewed them with your expert?
19.3.3 Have you met with prospective experts and discussed
contrary views in textbooks, and how to overcome
them?
79.3.4 Is the testimony of an expert really necessary?
79.3.4.1 Consider how exPert testimony can help
your case and also how not having it can
harm your case.
19.3.4.2 Consider cost, not only of the expert's
professional fees but also the cost of any
tests, analysis, Iaboratory procedures, etc.,
and the cost of presenting visual aids at the
trial.
19.4 Exhibits:
1,9.4.7 Are you ready with witnesses to identify every
exhibit?
19.4.2 Are the certifications on certified copies sufficient?
19.4.3 Are your documents the best evidence? If not, are you
ready to prove: (1) execution, (2) loss of all originals
and (3) authenticity of copy?
79.4.4 Are your exhibits "electronic documents" covered by
the Rules on Electronic Evidence?
79.4.4.1. Different rule for authentication
'19.4.4.2 Different Best Evidence Rule
79.4.4.3 FunctionalEquivalenceRule
19.4.5 Are there alterations in any document?
19.4.6 Are your documents in an official language?
79.4.7 Are your exhibits complete and arranged in the
anticipated order you will mark them?
79.4.8 Do you have copies of all exhibits?
19.5 Adverse Case
19.5.1 Have you tried to anticiPate the evidence that adverse
party will offer?

79.5.2 Have you planned the cross-examination of his key
witnesses?
19.5.3 Are you ready to support with authorities, your
objections to his anticipated exhibits?
19.6 The Trial Judge

19.6.7 Do you know the peculiarities, preferences and
manner of conducting trial of the trial judge?
79.6.2 If not -
79.6.2.7 Check with your colleagues.
79.6.2.2 Visit his courthouse and watch him conduct
a trial.
1.9.6.2.3 Talk to his clerks and stenographers.
79.6.3 Take these personal traits into account in your trial
plan and manner of presenting evidence.
19.7 Assemble your Trial Book
79.7.7 Trial brief as modified, containing:
79.7.7.7 Trial plan
19.7.'1,.2 Pre-trialorder
79.7.7.3 Other papers per no. L5, ante.
19.7.2 Trial Manual, containing:
79.7 .2.7 Citations, quotations on recurring problems
of evidence and procedure.
79.7 .2.2 Samples of laying foundation for certain
kinds of exhibits.
79.7 .2.3 Sample questions to prove certain facts (e.9.
qualifying experts, common reputatiory
dying declaration, refreshing recollection).
19.7 .3 Review contents of Trial Book to make sure it is
complete and up-to-date, particularly:
19.7.3.7 Have you reviewed recent decisions that
may affect your case?
19.7.3.2 Is your statement of issues accurate and
clear?

19.7 .3.3 Is every material fact on your FACT CHART
(Form 13) supported by admissible and
credible evidence?
19.7 .3.4 Is your Trial Plan practical and effective
in view of availability of witnesses and
peculiarities of the trial Judge?
19.7.3.5 Are your legal memoranda on anticipated
objections ready and up-to-date?
20. Trial
20.1 Prepare the Trial Book, files and other documents you will
take to court at least one day before the trial.
20.2 Bearing in mind the theory and image of your case, take note
of how each major witness, exhibit and/or other important
evidence will advance your theory and image.
20.3 Review the major evidentiary objections and doctrines that
you and/or your opponent may raise at the trial.
Editor's Note: This checklist of Senator Diokno has

been updated and supplemented to include the present
rules on discovery, pre-trial, court-mandated mediation
and electronic evidence,

OUTLINE OF EVIDENCE RULES
1. \Atrhat facts constitute my cause of action or defense?

1.1 Substantive law
2. Which of these facts - or of evidentiary facts tending to prove them
- are deemed proved without need of adducing evidence?
2.'L ludicial Notice (Sec. 3, Rule 129)
2.2fudicial Admissions (Sec. 4, Rule 129)
3. Who must establish the facts that remain to be proved?
3.1 Burden of Proof (Sec. 1, Rule 131)

3.1.1 Burden of Persuasion
3.1.2 Burden of Production
3.2 Presumptions (Sec.24, Rule 131)
3.2.1. Conclusive
3.2.2 Disputable
3.2.3 Legitimacy/illegitimacy
4. What degree of proof is needed of these facts?
4.'1. Weight and sufficienry of evidence (Rule 133)
4.2 Quantum of Evidence
4.2.7 Wills
4.2.2 Extrajudicial confessions (Sec. 3, Rule 133 and Sec.
33, Rule 130)
4.2.3 Accomplice - Not absolute
4.2.4 Circumstantial evidence (Sec. 4, Rule 133)
4.2.5 Direct evidence of first marriage in crimes of bigamy,
adultery parricide and seduction of spouse
4.3 Interpretation of written agreements and instruments (Sec.
'10-19, Rule 130)
4.4 Evidence on Motions (Sec. 7, Rule 133)

5. \ly'hat available evidence is admissible to prove these facts?

5.1 Testimonial
5.1.1 tr\rhich witnesses are subject to objection for
incompetence? (Sec. 20, Rule 130)
5.7.2 Which witnesses are privileged and to what extent?
(Sec.21-24, Rule 130)
5.1.3 \A/hat testimony is subject to a claim of privilege and
by whom? (Sec. 25, Rule '130)
5.7.4 What evidence is hearsay and upon what proposition;
and if hearsay, can it be brought within any
exception? (Sec. 3647, Rule 130)
5.1.4.1 Dying declaration (Sec. 37)
5.7.4.2 Declaration against interest (Sec. 38)
5.1.4.3 Act/declaration about pedigree (Sec. 39)
5.7.4.4 Familyreputation/traditiononpedigree
(Sec. 40)
5.7.4.5 Common reputation (Sec. 41)
5.1,.4.6 Res gestae (Sec. 42)
5.7.4.7 Entries in the course of business (Sec. 43)
5.1.4.8 Entries in official records (Sec.44)
5.1,.4.9 Commercial lists and the like (Sec. 45)
5.1.4.10 Learnedtreatises(Sec.46)
5.1.4.1,1, Testimony/deposition at former proceeding
(Sec. 47)
5.1.5 What testimony involves opinions, and how can

objections thereto be met? (Sec. 16, 48-50, Rule 130)
5.1.6 When is character evidence admissible -
5.1,.6.7 Ot aparty? (Sec.51, Rute 130)
5.1.6.2 Of a witness? (Sec. 14, Rule 132)
5.1.6.3 In civil cases? (Sec. 51(a), Rute 130)
5.7.6.4 In criminal cases? (Sec. 51(b), Rute 130)
5.1,.7 \A/hen may a witness be recalled to the witness stand?
(Sec. 9, Rule 132)

5.1.8 In a civil case, when can you call the adverse party to
the witness stand? (Sec. 6, Rule 25)
5.1.9 How and under what ciromstances may a witness be
excluded from the courtroom or separated from other
witnesses? (Sec. 15, Rule 132)
5.2 Documentary
5.2.1. lAIhat documents require authentication and by
whom? (Sec.l9-33, Rule '132)
5.2.2 Are documents originals, and if not
5.2.2.7 Or if documents are not available
5.2.2.2 What must be done to explain failure to
produce originals, and what secorrdary
evidence may be used? (Sec. 2{, Rule 130)
5.2.2.3 how may contents of writings be
Vy'hen and
disproved? (Sec. 9, Rule 130)
5.3 Object (Real) Evidence (Sec. 1, Rule 130)
5.4 Circumstantial (Sec. 4, Rule 133; see also Checklist 3 . Using
Circumstantial Evidence)
5.4.1 What circumstances are relevant?
5.4.2 What evidence of these circumstances is admissible?
5.4.3 When and what kind of circumstancial evidence is
sufficient to sustain a conviction in criminal case?
5.5 Extrajudicial Admissions (Sec. 26-35, Rule 130)
5.6 Electronic Evidence (A.M. No. 01-7-01SC - Re: Rules on
Electronic Evidence)
5.6.'1. What evidence is covered by the Rules on Electronic
Evidence? (Sec. 1, Rule 2; and Sec. I & 2, Rule 11)
5.6.1,1 Electronicdocument?
5.6.1,.2 Electronic data message?
5.6.1.3 Audiorecording?
5.6.1..4 Photograph?
5.6.1.5 Videorecording?
5.6.7.6 Ephemeralevidence?

5.6.2 If so -
5.6.2.7 \Alhen and to what extent is it admissible? (Sec. 2,
Rule 3)
5.6.2.2 What is the rule for privileged

communications? (Sec.3, Rule 3)
5.6.2.3 What is the functional equivalence rule?
(Sec. 1, Rule 3)
5.6.2.4 How must it be authenticated, and by
whom? (Sec. 'l-3, Rule 5; and Sec'1 & 2,
Rule 11)
5.6.2.5 What is needed to satisfy the Best Evidence
Rule? (Sec. 1 & 2, Rule 4)
5.6.3 Evidentiary weight of electronic evidence (Sec. 1 & 2,

Rule 7)
5.6.4 The Hearsay Rule and Business Records Exception
(Sec. 1 & 2, Rule 8)
5.6.5 Method of Proof (Sec. 1 & 2, Rule 9)
How may this evidence be obtained and presented for use at the trial?
6.7 Extraiudicialinvestigations
6.2 ]udicial discovery (Rules 23-29)
6.2.7 Oral depositions (Rules 23 &24!.
6.2.2 Written depositions (Rules 23 & 24)
6.2.3 Interrogatories to Parties (Rule 25)
6.2.4 Motions for Production and Inspection (Rule 27; Sec.
10, Rule 116)
6.2.5 Requests for Admission (Rule 26)
6.2.6 Physical and Mental Examination (Rule 28; Sec. 11,
Rule 116)
6.3 Perpetuation of Testimony (Sec. 1-7, Rule '134)
6.4 Use of Subpoenas (Sec. 'l -'10, Rule 21)
6.5 Search and Seizures (Rule 126)
7. How is this evidence presented and offered at the trial?
7 .7 Order of Proof (Sec. 1-.4, Rule 132)
Diokno on Trial: Techniques and ldeals of the Trial Lawyer 97

7.2 Scope of allowable direct, cross, re-direct and re-cross
examination (Sec. 5-8, Rule 132)
7 .3 Form of questions (Sec. 10, Rule 132)
7.4 Offer of Evidence (Sec.34 & 35, Rule 132)
7.4.7 Offer of testimony
7.4.2 Offer of documentary and object (real) evidence
7.5 Objections (Sec.36-39, Rule 132; Sec. 14, Rule 128 and
Checklist 5 - Objections)
7 .6 Tender of Excluded Evidence (Sec. 40, Rule '132)
7.6.7 Manner
7.6.7.1 RejectedExhibit
7.6.7.2 Rejectedtestimony
7 .6.7.3 Tender offer of proof
7 .6.2 Contents
7.6.2.1. Materiality,relevanceandadmissibility
7.6.2.2 Specify exhibit/s and witness/es
7.7 Electronic Examination of Witnesses (Sec. 1, Rule 10, Rules
on Electronic Evidence A.M. No. 01-7-01-SC)
Editor's Note: This checklist, developed by Senator

Diokno, has been updated to include the present rules on
electronic evidence under A.hl. No. 01'7-01'SC.

USI NG CI RCUMSTANTIAL EVI DENCE
l. Processes lnvolved
I .'l Proponent
1.2 Opponent
2. Kinds of Probondo
3. Humon Act - How Proved/Disproved
3. I Prospectont Circumstonces
3. I .l
Chorocter
3.1.2 Meniol ond Physicol Copocity
3.1.3 Hobit/Custom/Usoge
3.1.4 lntention/Design/Plon
3.1 .5 Emotion/Motive
3.2 ConcommitontCircumstonces
3.2.1 Opportunity
3.2.2 lmpossibility
3.3 Retrospectont Circumstonces
3.3.1 MechonicolTroces
3.3.2 Orgonic Troces
3.3.3 Mentol Troces
3.3.4 Offer to Compromise
3.3.5 Subsequent Precouiions/Repoirs
4. Humon Troit or Condition - How Proved/Disproved
4.1 Chorocter
4.1 .1 ln Civil Coses
4.1 .2 ln Criminol Coses
4.,].3 Of Witnesses
4.2 Sonity
4.3 PhysicolCopocity/Strength/Skill
4.4 lntention/Design/Plon

4.5 Knowledge/Belief/Consciousness
4.6 Emotion (Motive/Feeling/Possion)
4.7 lntent
4.8 Hobit/Custom/Usoge
4.9 Reputotion
5. ldentity - How Proved/Disproved
5.1 Opinions
5.2 Chorocteristic Morks
6. Events ond Focts of Externol Noture - How Proved/
Disproved
6.1 Occurrence of Event
6.2 Existence/Condition/Quolityof ihing/Ploce
6.3 Tendency/Copociiy/Couse/Effect
6.4 Volue of Reol/Personol Property
'l
00 Diokno On Trial: Techniques and tdeals of the Trial Lawyer
1. Processes Involved in Using Circumstantial Evidence
1.1 Party desiring to prove a fact-in-issue by circumstantial
evidence first offers evidence of the fact or circumstance from
which the fact-in-issue may be deduced, through one or more
inferences. The evidence of the fact or circumstance may be:
1.1.1 Testimonial
1.1.2 Documentary
1.1.3 Real
7.7.4 Demonstrative
1.2 Opponent may counter by offering like evidence that -
7.2.1 Denies the existence of the fact or circumstance
7.2.2 Explains away the inference from fact or circumstance
to fact-in-issue by showing that another inference is
equally or more valid
7.2.3 Proves rival facts or circumstances that lead to the
inference of the non-existence of the fact-in-issue
Classification of facts to be proved
2.7 The doing of a human act
2.2 A human quality or condition
2.3Identify of persons or things
2.4Facts or events of external nature
Human Act - How Proved/Disproved by Circumstantial Evidence
3.1 Prospectant circumstances (before the act)
3.1.1 Character of person to prove that he did/did not do
an act
3.1.1.1 In civil cases
3.1.1.1.1 Of party
. Not admissible
. Exception: When issue involved is
character
3.7.7.7.2 Of third person to prove he did/
did not do an act
. Good character admissibile where
act imputed is criminal in nature.
. Bad character admissible only in
rebuftal.
'l
3.7.7.2 In criminal cases
3.7.7.2.7 Of accused
o Accused may prove his good
moral character with reference to
trait involved in offense charged.
. Prosecution may not prove his bad
character excePt in rebuttal.
3.7.1,.2.2 Of offended PartY
o Character of offended party may
be proved when -
o It is an essential element of the
offense (e.g., simPle seduction,
Art. 338, Revised Penal Code).
o It reasonablY tends to establish
probability or imProbabilitY of
crime/defense.
3.7.7.2.3 Of witness in civil and criminal
CASES
. Evidence that his general

reputation for truth, honestY, or
integrity is bad maY be offered to
impeach him
o Evidence of his good character
is not admissible until after his
character has been imPeached
. Note: Rule on witness is converse
of rule on accused in criminal
cases.
3.1.2 Mental and Physical Capacity (strength, skill) of

Person to prove that he did/did not
do an act
. Admissible
. Examples
o Lack of financial capacity of alleged
buyer to prove contract of sale is
simulated donation
o Illiteracy to disprove making of
holographic will

o Impotence to disprove rape
o Possession of fatal poison to prove
accused administered poison to
deceased
3.1.3 Habit/CustomflJsage to prove person did/did not do act
. Admissible
. Examples:
o Habit of spelling or writing in an
certain way, to prove or dispror.e
authorship
o Habit of temperance to disprove
charge of drunken driving
o Habit of smoking special brand of
cigarettes to prove presence at scene
where stubs of that brand were found
3.1.3 Intention/Design/Plan of person to prove he did/did
not do act
o Admissible, provided lapse of time not
too long as to make abandonment of
design probable
. Examples:
o Threats by accused in homicide case
or by others to show accused innocent
o Surveillance of victim to prove plan to
kill him
o Purchase of poison to prove plan to
poison victim
o Decedentt announcement of suicide
to disprove death by homicide
3.7.4 Emotion (Motive)/Feeling/Passionof personimpelling
or inhibiting him to do act as proof he did/did not do act
. Admissible but not essential
. Motive may also prove intent or disprove
defense of accident/mistake/good faith
. Examples:
o Desire for inheritance, as proof of accused
killing decedent
o Jealousy as proof of Parricide
o Need for money to cover gambling losses as
evidence of defalcation
o Absence of motive to disprove homicide
(People v. Gallora, 29 SCRA 780)
3.2 Concommitant Circumstances (accompanying act)
3.2.7 Opportunity of person to do act, as proof that he did
do the act
o Admissible
. Examples:
o Presence at or near scene at time of crime.
3.2.2 Impossibility for person to do act as proof he did not
do so.
. Admissibie
. Examples:
o Alibi (People v. Gallora, 29 SCRA 780)
* Must be established by clear, positive and
satisfactory evidence (People v. Mansaca,
L-6473,May 26,7954);
," Unless identification evidence weak or
prosecution witnesses shown to have lied
(People v. Cunanan, 19 SCRA 769)
o That another person did act (People v.
Gallora, 29 SCRA 780)
o Examples:
ot Failure of eyewitnesses to identify
accused when it would have been timely
or more natural to do so (PeoPle v
Gallora, 29 SCRA 780)
", Possession by another of handkerchief
used as mask by killer (Id.)
* Sucide as defense to homicide [People v.
Alviar, 59 SCRA 136 (1974)l
3.3 Retrospectant Circumstances (after act)
3.3.1 Mechanical traces of act found in person as proof that
he did do act

o Admissible
. Examples:
o Possession of fruits of crime
o Fingerprints, footprints, etc.
o Possession of bloodstained shirt and knife
3.3.2 Organic traces of act found in person as proof of
identity of doer of act
. Admissible
o Examples:
o Blood grouping tests to disprove paternity
o Physical resemblance of child to father to
prove patemity
o Racial differences to disprove paternity [Lee
Sing v. Collector of Customs, 59 Phil. 247
(1e33)l
3.3.3 Mental traces of act in person as proof he did/did not
do act
o Admissible
. Examples:
o Readiness of accused to accompany
authorities to crime scene to prove no
consciousness of guilt (People v. Gallora, 29
scRA 780)
o Flight to prove consciousness of guilt
o Behaviour of animal to prove ownership by party
o Behaviour of bloodhounds to prove past
presence of accused at scene
3.3.4 Offer to Compromise
3.3.4.1, In civil cases
. Not an admission of liability
o Not admissible against offer
. Reason: public policy to encourage
settlements
'l
3.3.4.2 In criminal cases:
o Admissible as implied admission of guilt;
o Unless case is one that law allows to be
compromised
3.3.5 SubsequentPrecautions/Repairs
o Not admissible to prove that failure to take
similar precaution to prevent harm was
negliBent
. Reason: Public policy to encourage repairs to
avoid further harm
4. Human Trait or Condition - How Proved/Disproved
4.7 Character may be proved:
4.7.7 In civil cases, when character in issue
. By evidence of general reputation
. By particular acts
4.1.2 In criminal cases
. Of accused
o By proof of reputation only
o Particuiar good or bad acts not admissible
o Exception: Prior conviction of crime
involving moral turpitude
. Of offended parV
' :i,'r:i.TJ;f;1fi:.'#:Tfr:: ii:::::':i

virginity
o In homicide, on plea of self-defense, general
repute and evidence of particular acts [People
v. Sumicad, 56 Phil. 643 (1932); but see
contra, People v. Babiera, 52 Ph1l. 97 (1928),
where proof of specific acts was excluded]
but proof of overt act of aggression needed.
4.1,.3 Of witness in civil and criminal cases
o By general reputation
o By proof of prior conviction of a criminal
offense
'l
o But not by proof of particular acts
4.2 Sanity may be proved by:

4.2.7 Conduct and utterances of person in question
indicating delusions, hallucinations, etc.
o But not too remote in time
4.2.2 Opinion of witnesses
o Expert
o Layman
o Subscribing witness to writing in dispute
o Intimate acquaintance, giving reason for
opinion
4.2.3 PredisposingCircumstances
o Examples:
o Insanity of near blood relative
0 But evidence that person in question
similarly afflicted must first be
introduced.
o Acts indicating derangement
o Brain injuries
4.2.4 Past or Present Insanity
o Examples:
o Confinement in a menial institution
o Acts indicating derangement
4.3 Physical Capacity/Strength/Skill may be proved by
4.3.1 Particular instances of person's conduct
o Examples:
o Strength, illness, etc., by feats of strength,
displays of weakness
o Skill or mechanical means by -
n Instances showing skill
o Possession of requisite tools
o Financial capacity, by conduct in borrowing
money or failing to pay due debts

4.3.2 PhysicalAppearance
4.3.3 PredisposingCircumstances
o Examples:
o Heredity, where quality or condition is
hereditable and there is other evidence of its
existence in person
o Occupation, where skill is common to members
of occupation
4.3.4 Prior or subsequent capacity.
o But must not be too remote in time
4.4 Intention/Design/Plan may be proved by
4.4.7 Person's conduct or utterances indicating intention/
design/plan, such as:
o Preparation of materials
o Possession/acquisitionof tools, documents,
weaPons
o Joumeys or experiments
o Inquiries,prophecies,allusions
4.4.2 Person's doing one or more acts similar to act in issue,
provided that -
o The other acts and act in issue have common
features in preparation, execution or attendant
circumstances; and
o These common features indicate an intention/
plan/design to produce a result of which act is in
issue is part.
4.4.3 Priororsubsequentintention/design/plan
o But must not be too remote in time
4.5 KnowledgeBelief/Consciousness may be proved by
4.5.1 External circumstances likely to produce knowledge/
belief/consciousness, such as:
o Direct exposure of matter to person's senses
o Express communication of matter to person by
statements of other person
o Reputation regarding matter in community

o Intdnsic nature of matter as likely to arouse
knowled gelbelief/consciousness
4.5.2 Person's conduct or utterances indicating his
knowledge/belief/consciousness
4.5.3 Prior or subsequent knowledge/belief/consciousness
4.5.4 Similar acts when
o Such acts would probably have led to
knowledge/waming/notice
o The similarity is such that that knowledge/
warning/notice would apply to act in issue
4.6 Emotion (Motive/Feeling/Passion) may be proved by -
4.6.1. External circumstances likely to stimulate it, provided
that -
o Circumstances come to person's knowledge
o Communication of circumstances to person is
admissible, even if circumstances not true
4.6.2 Person's conduct or statements showing emotion
4.6.3 Prior or subsequent existence of emotion but not too
remote in time
4.7 Intent may be proved bY:
4.7 .7 Person's conduct or utterance at time of act indicating
intent
4.7.2 Evidence of motive, intentioo knowledge to Prove
person acted with intent and disprove act done by
accident or in good faith
4.7.3 Person's having done or attempted to do one or more
acts so similar to act in issue that repeated doing is
not likelY to occur without intent
4.7.4 Prior or subsequent intent
4.8 Habit/CustomAJsage may be proved by:
4.8.1 Person's similar acts or conduct
o Repeated often enough to show regularity
o Under substantially same circumstances as act in
issue
Diokno On Trial: Techniques and ldeals of the Trial Lawyer 1 09

4.8.2 Custom may be proved by similar acts done by other
persons belonging to the same class/trade/occupation
as person in questiory provided that:
o Other persons are sufficiently numerous

o Circumstances are substantiallv the same
4.8.3 Prior or subsequent habit/custom
4.9 Common or General Reputation may be proved by the

testimony of a witness, that the witness -
4.9.7 Has known the person/animal/object in question since
before the act in issue arose, and for how long
4.9.2 Knows other persons who also know person/animal/
object in question
4.9.3 Has heard or taken part in conversations concerning
person/animal/object and so knows his/its reputation
4.9.4 Has heard/never heard opinions derogatory of
character of person/animal/object
4.9.5 Has heard people speak well/badly of person/animaVobiect
4.9.6 The following are not necessary but, when applicable,
should be brought out:
o Witness not interested in outcome of case
o Witness not related by blood or affinity to
person in question
o Witness not connected in business with person
in question
4.9.7 In selecting "character" witnesses, choose from those
available the ones -
o With best business, professional or social
qualifications
o With long association with person in question as
neighbor, co-worker in civic projects, business
dealings, etc.
o With frequent contact with others who know
person in question
5. Identifii - How Proved/Disproved
5.1 Opinion of -
'l 'l
0 Diokno On Trial: Techniques and tdeals of the Trial Lawyer
5.1.1 Expert
o Fingerprints/palms/soles
o Ballistics
o Handwriting
o Tire Marks
o Tool Marks
o Neutron Activation Analysis
o DNATesting
5.7.2 Layman with knowledge of person or handwriting
5.2 Existence of marks/characteristics common to both
5.2.7 Mark must not apply to too many individuals so that
chance of identity becomes too small
5.2.2 Combination of marks, when in sufficient numbers,
may be conclusive, as for example in:
o Fingerprints/palms/soles
o Footprints
o Ballistics
o Tire marks
o DNA tests
5.2.3 Even when not conclusive, may be admissible as
corroborative of other evidence
5.3 Evidence of similar acts done by both
Events and Facts of Extemal Nature - How Proved/Disproved

6.7 The occurrence of an event may be proved/disproved
6.L.L Usually by testimony
6.1..2 Circumstantially by evidence of
o Circumstances likely to cause/prevent
occurrence of event
o Circumstances that generally accompany event/
non-occurrence of event
o Circumstances (effects) that generally result
from event/non-occurrence of event
Diokno on Trial: Techniques and ldeals of the Trial Lawyer I I I

6.2 The existence/non-existence at a particular time of thing/place,
or its condition or quality, may be evidenced by:
6.2.7 The existence/non-existence of its cause
6.2.2 The existence/non-existence of its effects
6.2.3 The existence/non-existence of other conditions that
normally accompany it
6.2.4 Itspriorexistence/condition/quality/non-existence.
6.2.5 Its subsequent existence/condition/quality/non-
existence
6.2.6 Prior and subsequent existence/non-existence must
not be too remote in time, given -
o The nature of things/place
o The circumstances of case
6.2.7 The condition of the whole may be evidenced by
condition of part/sample provided the part/sample is
representative of the whole.
6.3 The tendency or capacity of a thing/place/event to be the

cause/effect of something else may be proved by:
6.3.7 Other specific occurrences indicating such tendency/
capacity/cause/effect, provided that all material
circumstances of other occurrences are similar to
those of the case.
6.3.2 Such other specific instances may be:
o Nafural/spontaneousoccurrences
o Experiments conducted to determine tendency/
capacity/cause/effect IU.S. v Tegrado, 36 Phil.
789 (7977); U.S. v Caralipio, 18 Phil. 421 (1911))
6.3.3 Evidence of tendency/capacity/cause/effect may be
o Positive, when presence of suggested cause in all
instances produces same effects
o Negative, when absence of suggested cause
produces different effects
6.3.4 To rebut this evidence, opponent may offer:
'I
I 2 Diokno On Trial: Techniques and tdeals of the Trial Lawyer
o Other instances, substantially similar to the case,
including suggested cause, resulting in contrary
effects
o Other instances, substantially similar to the case,
except for suggested cause, resulting in same
effects
o Other instances, substantially similar to the
case (including suggested cause) except for
one circumstance, resulting in different effects,
thereby showing that that other circumstance
was the true cause of the effects
6.4 Value of ReafPersonal Property may be proved by -

6.4.1 Testimony of -
o Owner who should state facts on which his
valuation is based, including:
+ Description of property
t Time and place of purchase
.:. Condition of property at time of purchase
and purchase price
6 Use of property since its acquisition
* Income derived from property
+ Improvements and cost thereof
o Insured value
* Cost of reproduction or replacement
* Offers received for property
r Peculiar value to owner
o Experts familiar with -
,, Proper9 itself
+ Class of property to which property in
question belongs
..r Property must be described in detail if expert
has not seen it.
Diokno On Trial: Techniques and ldeals of the Trial Lawyer 1 I3

6.4.2 Market reports and price lists
6.4.3 Sales of similar property on open market
o Between a willing buyer and a willing seller
o Neither acting under compulsion and
o Dealing at arms length with each other
,6 Editor's Note: Senotor Diokno odopted this checklist from

Wi'gmorel A Studentl Textbook of the Law of Evidence ond Code of
Evidence. The coses cited were selected W Senator Diolao, Only o
few examples hove been added by the editor.
'l 'l
TRACING A MISSING PERSON
1. A registered letter, return receipt with address requested, sent to

last known address of missing person
1,/ Telephone directories
.7
v Assessor's office
Interview landlord, janitor, neighbors at last known address for
,A
leads, including:
4.7 Names and addresses of relatives and/or friends
4.2 Name of company or collector of industrial life insurance
poliry
4.3 Name of credit or collection agencies or individuals
4.4 Names of any fraternal, veteranb or other organization/s to
which the person may have belonged
Canvass neighborhood or building for any possible leads from
friends, relatives or acquaintances of the person. Repeat this several
times.
6. Business establishments, stores, and banks in the immediate
vicinity
7. Churches and church organizations
8. Local doctors and dentists who may have treated the missing
person
9. Local parochial, private or public schools
10. The missing person's former employer/employee or any member of
his family, for:
10.1 Union affiliation
10.2 Names of references on employment records
10.3 Type of work and employment
1,0.4 Informationfromfellowworkmen/officemates
7y' V,oro, vehicle through Bureau/Land Transportation Office for
information concerning the missing person's address if a vehicle
has been registered in his,/her name or a driver's license issued to
him/her.
Diokno On Trial: Techniques and ldeals of the Trial Lawyer I I 5

Local election records
Utility and telephone companies; cellphone records of friends,
relatives or acquaintances with whom the missing person may be
in contact
74. Military service or Veteran's Administration records
15. Credit accounts of department stores
76. Welfare agencies
r
18.
Tax records
Police records
Marriage, birth, or death records of the missing person or
/ immediate family
20. Judgment records
27. Colf, tennis, hobby or athletic clubs
22. The internet. Try searching on the websites of the National Bureau
of Investigation, Census and Statistics Office, Civil Registry and
other government offices. Consult those knowledgeable with the
internet on ways to trace the persory what to search for, and what
websites to access.
If there if possibility that the missing person is in the United
a
States or other developed countries, try logging into their "missing
persons" databases if they have any.
,d ,O,ror, forr: The last two parographs have been added

by the editor.
'I
l6 Diokno On Trial: Techniques and ldeals of the Trial Lalvyer
OBJECTIONS
Irrelevant Violates Parole Evidence Rule

Immaterial Leading
No Probative Value Lawyer Testifying
Disqualified Witness Calls for Narration
Lacks Competence Non-Responsive
Lacks Personal Knowledge Compound Question
Lacks Memory Confusing
Improper Character Vague/Ambiguous/
Improper Habit Misleading
Inadmissible: Argumentative
Subsequent Remedial Measures Beyond Scope of Direct
Offer Of Compromise Mischaracterizes Testimony
Plea Bargain Insulting/Offensive
Payment Of Medical Expenses Assumes Facts Not in Evidence
Liability Insurance
PRIVILEGED COA4MUNICATION/RELATIONSHIPS
Attorney-Client
Physician-Patient
Clergy-Penitent
Marital
Trade/Business Secrets
News Sources
Informer Identity
Confidential Government Information
Parental/Filial Privilege
DOCU,TAENT OPINION
Lacks Foundation Improper Lay/Expert Opinion
Not Duly Authenticated Impermissible Conclusion
Not the Best Evidence Speculative Opinion
Original Not Genuine Expert Not Qualified
Copy Not Duly Authenticated Improper Hypothetical
Question
Diokno On Trial: Techniques and ldeals of the Trial Lawyer I I 7

HEARSAY
Declarant Not Under Oath
Declarant's Credibility Not Observable
Declarant Not Subiect to Cross-Examination
EXCEPTIONS
Dying Declaration Declaration Against Interest
Res Gestae Act Declaration About Pedigree
Common Reputation Family Reputation Tradition
Entries in Course of Business on Pedigree
Commercial Lists & the like Entries in Official Records
Testimony/Deposition at Former Proceeding Learned Treatises
,6 Editor's Note: This checklist, prewred by the

Editor, is meant to serve os a memory oid for the lawyer
during the triol.
1
'l
PART III
TRIAL BOOK AND FORMS
And so low in the land died. I grieve for it but I do not

despair over it. I know, with o certointy no argument
can turn, no wind can shake, that from its dust will rise a
new and better law, more just, more human and more
humane. When that will hoppen, I know not. Thot it will
hoppen, I know.
Not blind faith nor romantic optimism inspires thot

conviction nor yet o penchant for lost causes, but awareness
of our people's past and the experience of their present...
Tell me, for I have never come across it; ot what period in
our history did our people stop fighting oppression? Armed
with little more thon an enduring heatt, an ear for music,
and a longing for justice without which there could never
be harmony, they hove for centuries pursued o dream that
will not die: the dream of o noble society. They have been
- -
they still are deceived and deprived, defeated and
defamed. Yet they strusgle on, however humbling, mistoken
or misguided their efforts may at times seem to us.
Ipray that we, the men and women of the law, may join
their quest ond work ot their side: for they labor for us also.
But let us have no illusion that they need us. With us or
without us, they will triumph. One day justice and its works
wilt reign in our tond. Never completely, but firmly enough
to restore sanity into our society and decency into our life.
- Jose W. Diokno
"The Land and lvlortial Low,"
in A Nation for Our Chitdren,
Quezon Ci ty : Clor eti an Pub li cotions
1987
Srcrrou CONTROL
Form I
RETAINER
RECORD
CIient l lNc\\ | lOld I lRclaincr

Namc)
(Lasl (Firsl Name/s) 1!riddlc Nanlc)
Car. nl-___ Rclation
Olllcc landlinc Rcsidencc landline C ellphone
IN RE
COURT/BRANCH/DOCKET NO,
CONTACT NOS.
ADVERSE PARTIES
ADVERSE COUNSEL
OTHER PARTIES
COLLABORATING COUNSEL
OTHER COUNSEL
WITNESSES ADDRESS CONTACT NOS-
NATURE OF CASE
FE ES [
] l\y'onthly Retainer [ ] Fixed at
[
] Estimated at [ ]Contingent
Advances authorized up to Upon ok of Billing date
[ ] Fee letter mailed on By
[ ] Receipt for Retainer Record disposition:
I Partial fee Original to case file
[ ] Deposit for expenses Copy for
lnclude in Weekly New Case List
REI\,,1ARKS
SUBJECT CLASSIFICATION
Diokno On Trial: Techniques and deals of the Trial Lawyer I 21

Form 2
File Tab
THINGS TO
Date File No.
DO - FACTS
No. What Assigned to DATE

off. ctt. oth. Due Date
'l
22 Diokno On Trial: Techniques and deals of the Trial Lawyer
Form 3
File Tab
THINGS TO
DO - LAW Date File No.
No. lssue
,
ASSrqneo to
- DATE
Due Date
Diokno On Trial: Techniques and deals of the Trial Lawyer 123

Form 4
File Tab
CNILDOCKET Date File No.
COMPLAINT filed Summons served

Amended on
PROV. REMEDIES Filed Heard Submitted Result/Date

Injunction
Aflachment
Replevin
Receiver
Support
MOTIONS
Particulars
Dismiss
Default
ANSWER [ ]with []without COUNTERCLAIM filed

Amended on
REPLY/ANSWER TO COUNTERCLAIM filed
Amended on
CROSS-CLAIM filed ANSWERED
THIRD-PARTY COMPLAINT fi led ANSWERED
OTHER PLEADINGS
filed llled
filed filed
OTHER MOTIONS Filed Heard Submifted Result/Date
Strike
Jjmt. on Pldgs
Sum. Jjmt.
DISCOVERY
Depositions
lnterrogatories served on [ ] Pon [ ]Don
Admissions requested [ ] by P on by[ ]Don
Production requested [ ]byPon by[]Don
Medical examination of requested by []P []D
PRE-TRIAL held Pre-Trial Order dated Amended
TRIAL began Ended Case suhmitted
DECISION received MotionRecon,New Trial fi led
APPEAL due Extended to Perf'ected on
I24 Diokno On Trial: Techniques and deals of the Trial Lawyer

Form 5
File Tab
SUMMARYTO DATE Date File No.
Date Summary
[ ] Back
Evaluation
By:
Date Summary
[ ] Back
Evaluation
By:
Date Summarv
[ ] Back
Evaluation
Bv:
Date Summary
[ ] Back
Evaluation
By:
Diokno On Trial:Techniques and deals ofthe Trial Lawyer 125

Srcrtoru 2: plrRotrucs
Form 6
File Tab
THEORY Date File No.
COMPLANT hled on Amended on

Liability Theory
[ ] Back
Damage Theory
I I Back
ANSWER filed on Amended on

Admissions
[ ] Back
[]
,raa*r"r "u"u
[ ] Back
COI.]NTERCLAIMS
[ ] Back
REPLY filed on Amended on

Admissions
[ ] Back
[ ] Back
DEFENSES
I I Back
I 26 Diokno On Trial: Techniques and deals of the Trial Lawyer

Srcrotl 3: rncrs
Form 7
File Tab
PERSONS
INVOLVED Date File No.
NAMF, ROLE

Form 8
File Tab
FACT LOG Date File No.
DATE EVENT/PARTICIPANTS SOURCE

Srclox 4: mw NorES
Form 9
File Tab
LAWNOTES Date File No.
[] Substantive [ ] Procedural [] Evidence Prepared by: _
'l
Secrotrt 5: naolorls
Form l0
File Tab
MOTIONS Date File No.
MOTION
Filed on Bvl lP t lD Grounds
Opposition fi1ed on
Order dated Motion [ ]Granted [ ] Denied [ ] Defened

Reasons
Eflect on case
MOTION
Filed on By[ ]P []D Grounds
Opposition filed on
Order dated Motion []Granted [ ]Denied []Delbrred

Reasons
Effect on case
'I
Srcrroru 6: orscovrRY AND PRE-TRTAL
Form 11
File Tab
PRE-TRIAL PLAN Date File No.
Began _ Continued on
Judge Stenographer/s
COMPROMISE Client asks/offers Will settle for

Opponent offers/asks Settled for
ISSUES
[ ]Back
Ask Opponent to Admit STIPULATIONS Offer to Admit
Facts Facts
[ ]Back
Exhibits Exhibits
[ ]Back
COURT-MANDATED MEDIATION Began _ Continued
Ended Mediator/s
Proceedings
OTHER Refer to []Commissioner [ ]Arbitration [ ]What

[ ] Delegation olreceplion oferidence to Clerk ofCourt
I I Amend [ ] Horv
[ ] Other Matters
[ ] Back
Diokno On Trial: Techniques and ldeals of the Trial Lawyer I 3'l

Form 11-A
File Tab
DISCOVERY Date File No.
Order to avail of discovery? N Dated Rcvd.-No ofDays given-

REQUEST FOR ADMISSION [ ]Filed-Y by P [] Filed by D Dated
Fact/Document sought to be admitted Adverse Pafi's
-
Response
L I see over
Objections?
I I see over
Answer/swom statement to RIA filed on Kev Answers
[ ] see over
INTERROGATORIES TO PARTIES [ ] Filed by P [ ] Filed by D Dated
lnterrogatories Response
I I see over
Obiections? Y N Filedon Summary of grounds
[ ] see over
Ruling on objections
I I see over
Answer to Interrogatories filed on Kev answers
[ ] see over
MOTION FOR PRODUCTION/INSPECTION OF DOCUMENTS OR THINGS
Document/Thing/PIace to be Produced/lnspected Date/time/place ofinspection
[ ] see over
"Good cause" for production/inspection?
Heard on Order issued on Received on

Motion [ ] Granted [ [ ] Other
] Denied
MOTION FOR PITS|CALA4ENTAL EXAM [ ]FiledbyP []FiledbyD Dated
Person to be examined "Good cause" for examination?
Motion I I Granted [ ] Denied [ ] Other

Findings
I32 Diokno On Trial: Techniques and ldeals of the Trial Lawyer

Srcrrou 7: plRrwrrt cnsr
Secrton 9: orruruonrur's cnsr
Form 12
File Tab
Date File No.

CASE CHART
[ ] Plaintif]7 People [ ] Defendant I l Other Parties
KEY FACTS TO PROVE WITNESS EXHIBITS
Diokno On Trial: Techniques and ldeals of the Trial Lawyer I 33

Form 13
File Tab
FACT CHART Date File No.
FOR [ ] Plaintiff/People [ ] Defendant/Accused [ ]OtherParties
'I
34 Diokno on Trial: Techniques and ldeals of the Trial Lawyer
.l4
Form
File Tab
ADMISSIONS Date File No.
[ ] By Plaintitr [ ] By Defendant [ ] By Other Parties
FACT/DOCUMENT ADMITTED HOW WHEN
Diokno On Trial: Techniques and deals of the Trial Lawyer I 3 5

Form 15
File Tab
LIST OF
WITNESSES Date File No.
[ ] Plaintiff [ ]Defendant [ ]OtherParty:

CHART DATE
NAME/ADDRESS
NO PL DEF CT OTH TESTIFIED
I 36 Diokno On Trial: Techniques and deals of the Trial Lavwer

Form 16
File Tab
WITNESS GUIDE Date File No.
Name Nationality Age Status

Occupation Employer
Business Address Contact Nos.
Home Address
Relation to Parties [ ] Friendly []Neutral I I Hostile

[ ] Eyewitness [ ] Circumstantial []Police [ ] Medicalexpert [ ] Other
OFFER OF TESTIMONIAL EVIDENCE
WILL TESTIFY THAT
WILL IDENTIFY
Appearance Credible? Reliable?

WATCH OUT FOR
[ ] Subpoenaed on _ [ ] Duces Tecum on _ t lNoneed
POINTS TO BRING OUT

Form 16-,{
File Tab
WITNESS Date File No.

NOTES
[ ] Plaintiff/People [ ]Defendant [ ]Court [ ]Others
DIRECT / RE-DIRECT CROSS
I 38 Diokno On Trial: Techniques and deals of the Trial Lawyer

Form 17
File Tab
STAIEMENT
Date File No.
ANALYSIS
[ ] Plaintiff [ ] Defendant I I Other Parties
Age_ Status
Occupation Address
StatemenvDeposition dated
ANSWERS

Form 18
File Tab
EXHIBIT GUIDE Date File No.
For [ ] Plaintiffi{People [ ]Defendant [ ] Other padies
EXH. NO. Description
To be identified by
Location/Custodian
Address
Duces Tecum [ ]Not needed I lFiledon for
[ ] Exhibit reviewed on [ ] Witness reviewed on
Objections/Problems
Counter by -
I I Back
EXH. NO. Description
To be identified bv
Location/Custodian
Address
Duces Tecum []Notneeded IlFiledon for
Objections/Problems
Counter bv
I I Back
EXH. NO. -
Description
To be identified bv
Location/Custodian
Address
Duces Tecum I I Not needed [ ] Filed on for
Objections/Problems
-
Counter by
[ ]Back
140 Diokno On Trial:Techniques and deals of the Trial Lawyer

Secrotrt 8: pr-Rrrurrrr's rxHraffs
Srcrroru 10: oerrruonNr's rxHrgffs
Form 19
File Tab
LIST OF
Date File No.
EXHIBITS
I I for Plaintiff I I for Defendant I I for Other Parties

EXH. DESCRIPTION IDENTIFIED BY AD EX
Diokno On Trial: Techniques and deals of the Trial Lawyer l4'l

SEclot.t 1 1: rntnl loc
Form 20
File Tab
TRIALLOG Date File No.
PROCEEDINGS WITNESSES & EXHIBITS

DATE
I 42 Diokno o" iiiiij".t'niq,.t and deals of the Trial Lawyer

Srcrolr 12: nrsurrnl
Form 21
File Tab
REBUTTAL Date File No.
Adverse To Be
POINTS TO REBlJT Witness/Exhibit Rebutted By

Srcrron 1 3: nncuvrrrur/rnrnl MEMoRANDUM
Forrn22
File Tab
ARGUMENT Date File No.
[ ] For Plaintiff/People [ ] For Defendant [ ] For Others

[ ]Case-in-Chief [ ]Motionto/for [ ] Reply
POINTS WITNESS/EXHIBIT/DATE

Srcroru 14: rvnluATtoN
Form 23
File Tab
EVALUATION Date File No,
JUDGMENT
DIDWE [ ]WIN [ ]LOSE? Explarn
WHAT MISTAKES DID I COMMIT?
HOW COULD I HAVE IMPROVED RESULTS?
WHAT MISTAKES DID OPPONENT MAKE?
HOW COULD OPPONENT HAVE IMPROVED RESULTS?
WHAT ERRORS DID THE COURT COMMIT?
SHOULD WE APPEAL? I ] YES I ] NO WHY.)
LESSONS LEARNED
Oiokno On Trial: Techniques and ldeals of the Trial Lawyer 145

lndex of Topics
A B
ACCUSED BIAS
Right to confront and cross-examine Judge's bias against defendants, 68
witnesses against him, 58, 66, 73 Weaken testimony of alleged witness to dying
See Constitution, Art. lll, S 14 (2) declaration,59
ADMISSIONS BURDEN OF PROOF

S/e Form 14 -Admissions Definition,7'1-72. See Rule 131, S'l
Form 4 - Civil Docket For possession of prohibited drug, 55, 72
Form 6 - Theory lmportance of knowing the rules of, 55
As part of Plaintiff's Case,41
As part of Defendant's Case, 44
Extrajudicial admissions, 55, 72
Extrajudicial confessions/statement of co- c
accused, 56-58, 73
Generally admissible only against declarant CHECKLISTS
(res inter alios acta tule), 57-58, 73 Checklist 1 - Processing a Case for Trial, 9-
S?. Rule 130, S 28 '10. 79-93
Exception: lnterlocking confession, 58, 73 Checklist 2 - Outline of Evidence Rules, 53,
Judicial admissions, 54-55, 7 1 -72 94-98
See Rule 129, $ 4 Checklist 3 - Using Circumstantial Evidence,
Effect of amended pleading, 55 8,99-114
See Rule 10, $ 8 Checklist 4 - Tracing a Nilissing Person, 11t116
Request for admission, 62, 7 4 Checklist 5 - Objections,'117-118
Failure to file and serve, 74
See Rule 26, $ 5 CHILD WITNESS
When to get admissions on exhibits,49 Examination of a child witness rule (2000)
Se? Pre-trial rule (2004) (Supreme Court Resolution No. A. lV. No.
00-4-07-sc),73
ADVERSE COUNSEL
See Form 4 - Retainer Record CIRCUMSTANTIAL EVIDENCE
Evaluation of, '16 Checklist 3 - Using Circumstantial
See
Presentation of forgedifalse document, 43 Evidence, Rule 133, S 4; Rule 133 SS 1-7
Fact of external nature, I
ALMENDRAS, ALEJANDRO, 54 Human act, 8
Human character and capacity, 8
ANTI.WIRETAPPING LAW Philippine Bar Association, 8-9
Necessity of consent of all parties to When no witnesses are available or for
communication as requisite for admissibility, corroboration. S
70,74
CIVIL CASE
APPEAL Formulating the theory, 38
Preserving the recod tot appeal,21
When trial judge stops presentation of further CLIENT
evidence. 69, 74. Sec Rule '133. $ 6 As source of evidence, 35, 66-67, 71
As source of identity of possible adverse
ARISTOTLE witnesses, 20, 22, 35,7'1. See Fotm 12 -
Character and persuasion, 6 Case Chart
Law is reason, 30 Attorney-client privilege, 61
Examine client's documents carefully, 66-67
ATTORNEY.CLIENT PRIVILEGE, 61 Fee, 10
See Rule 130, S 2a (b)-(e) Gifts from clients to witnesses, '14, 70-71
ACCUSED - CLIENT I47

lnterview with, 37, 64S5. See Form 1 - Retainer Three things necessary to win a case,4-5
Record Trial plan,33
Lying, 17
Preparing client for testifying, 17 DIRECT EXAMINATION
Subjecting client to cross-examination prior 5.. Form 16 - Witness Guide
to trial, 17 Form 16-A - Witness Notes
Know how judge's mind works, 68
CONFESSION Laying the foundation, 18
Extrajudicial confession/statement of When and when not to get admissions/
co-accused, 56-58, 73 stipulations on exhibits, 49
Admissibility of, 57 See Pre-trial rule (2004)
Conviction based on, 56, 72
Right of accused to confront and cross- DISCOVERY AND DEPOSITIONS
examine witnesses against him, 57-58, sce Rules 23-29
66. See Constitution, Art. lll, S 14 (2) Compared with perpetuation of testimony, 62, 74
Generally admissible only against sec Rule 23, S1; Rule 24, SS 1 & 2
declarant, (res inter alios acta tule),57-58,73 lnterrogatories to parties, 74
5e. Rule 130, S 28 See Form 4 - Civil Docket; Rule 25, S 6
Exception; lnterlocking confessions, 58, 73 Request for admission, 62,74
See Rule 25 $ 6; Rule 26, S 5
CONSTITUTION Subpoenas and subpoenas duces tecum, 61.
Art. lll, S 14 (2) (Rights of the accused), 73 See Rule 21
To obtain and preserve evidence, 61-63
CROSS-EXAMINATION
5.e Form '16 - Witness Guide, 4142 DOCUMENTS
Form 16-4 - Witness Notes, 42 Best evidence rule, 57. Sec Rule 130, S 3 & 4
Always be observant in court, 20 Examine all documents carefully, 66-67
lmpeachment by prior inconsistent statement, 66 False/forged/fabricated documents, 42-43, 67
Lawyer's task: Cross-examine, 31 Parole evidence rule, 57. see Rule 130, S I
Right of accused to cross-examine witnesses Read every document, 17, 43
against him, 58,66,73
See Constitution, Art. lll, S 14 (2) DYING DECLARATION
Extrajudicial confession of co-accused, Ser Rule'130, S 37
57-58,73 How to dispute fabricated dying declaration,
Thinking for cross-examination, 67-68 58-59
Normal consequences of an act as basis of Ask doctor who performed autopsy, 58
questions,6T Ask medical attendants in hospital, 59
Normal reaction of rape victim, 67 Trace actions of deceased and witness, 59
Asking about surrounding circumstances, 67{8 Weaken testimony of alleged witness to
To expose weaknesses of opponent's case, 31 dying declaration,59
To put opponent's witness off balance, 68 May be admissible as Res Gesfae, 59
When not to cross-examine.22
E
D
EVIDENCE
DEFENDANT'S CASE Admissibility of, 56-61
Effectively denying opponent's accusations Burden of proof
against your client,47 See BURDEN OF PROOF
Getting client's story in twice, 47 Circumstantial evidence
Order of presenting defendant's witnesses, 47 See CIRCUMSTANTIAL EVIDENCE
Client as source of evidence, 35, 66-67, 71
DIOKNO, RAMON Dying declaration
Brief biography, 34 See DYING DECLARATION
148 CLIENT - EVIDENCE

Exclusionary rules, 57-58 Parental and filial privilege,60, 73
False/forged/fabricated documents, 42-43, 67 Scc Rule 130, $ 25
lmpeachment,66 Proof of similar act, 57
Judicial admissions, 54-55, 71-72
See Rule 129, $ 4
Judicial notice, 54-55. 71
See Rule 129, $$ 1-2
Offer/tender of proof, 2'1 F
See Rule 132, $ 40
Perpetuation of testimony, 61-62
FORCE MAJEURE. 8
see Rule 24; Rule 119 S 12,13, 15
Presentation of evidence, T-26, 29-50, 53-74
FORMS
See PRESENTATION OF EVIDENCE
Form 1 - Retainer Record
Presumptions, 55-56, 72
Figure 9, 10
See Rule 131, $$ 2-3
How to use, '10-11, 37, 64
Read every document, '17, 43
Sample form, 121
Relevant evidence, 56-57
Deflnition, 57. See Rule 128 SS 3 & 4; Rule 130 Form 2 - Things to Do-Facts
Example of relevant evidence, 57 Figure '10, 12
Search and seizure/search warrants, 61 How to use, 12-13, 36-37, 64-66
See Rule 126 Sample form, 122
Strong direct evidence and its effective Form 3 - Things to Do-Law
presentation as key to winning cases, 68 Figure 26,65
Subpoenas and subpoenas duces tecum, 61 How to use, 12, 36-37, 64-66
See Rule 21 Sample form, 123
Testimonial quaiifi cations of witnesses, 60-61 Form 4 - Civil Docket
Weight and sufficiency of evidence, 54, 56 Figure '16, 36
Sce Rule 133 How to use, 36
Sample form, 124
EXCLUSIONARY RULES
Form 5 - Summary to Date
Admissions,5T
How to use, 37
See Rule 130, $$ 26-33
Sample form, 125
Best evidence rule, 57
sec Rule 130, SS 3 & 4 Form 6 - Theory
Character evidence, 57 Figure 17, 38
See Rule 130, $ 51 How to use, 38
Hearsay rule and its exceptions, 57, 73 Sample form, 126
See Rule 130, SS 36-47 Form 7 - Persons lnvolved
Opinion rule,57 How to use, 39
See Rule '130, SS 48-50 Sample form, 127
Parole evidence rule, 57 FormS-FactLog
See Rule 130, S I How to use, 39
Privileged communications, 60-61, 73-7 4 Sample form, 128
See Rule 130, S 2a (a)-(e)
Form9-LawNotes
Attorney and client, 61, 74
Figure 18,40
Doctor and patient, 61 , 74
How to use, 3940
Marital confidences, 60, 73
Sample form, 129
Sec Rule 130, S 24 (a) ,
Priest and penitent, 6'1, 74 Form 10 - l,4otions
Public officers, 6'1, 74 How to use, 40
Privileged relationships, 60, 73 Sample form, 130
Dead man's rule, 60, 73 Form 11 - Pre-Trial Plan
See Rule'130, S 23 Figure 19,40
Marital relationship, 60, 73 How to use, 40-41
See Rule 130, $ 22 Sample form, 13'1
EVIDENCE - FORMS 149

Form 'l'l-A- Discovery G
Sample form, 132
Use of, 41 GOLDSTEIN
Form 12 - Case Chart As authority on trialtechnique, 53, 71
Figure 15, 35
How to use, 34-35 GREGORY THE GREAT, 30
Sample form, 133
Form 13 - Fact Chart
How to use, 12-13 I
Sample form, 134
Form 14 - Admissions IMPEACHMENT
Sample form, 135 Expose weakness of opponent's case, 31
Form 15 - List of Witnesses Lawyer's task: lmpeach, 31
How to use, 12-13 Of witness, 66
Sample form, 136 Prior inconsistent statement, 66
Form 16 - Witness Guide
Figure 11, 13
How to use, 13-15,41 J
Sample form, 137
Form '16-A - Witness Notes JUDGE
Figllje 20, 42 Bias against defendants, 68
How to use, 42 Judges of first impression, 68
Sample form, 138 Judges of last impression, 68
Form 17 - Statement Analysis Know your judge, 23, 48, 68
How to use, 4142 Persuade the judge, 30
Sample form, 139 When judge stops presentation of further
evidence, 69, 74. See Rule 133, $ 6
Form 18 - Exhibit Guide
Three things necessary to win a case,4-5
Figute 21, 43
How to use, 42-43
JUSTICE
Sample form, '140
Lawyer as minister of justice. 23, 25
Form 19 - List of Exhibits Lawyer's task: Let justice triumPh, 4
Figu"e 22, 43
How to use, 43-44
Sample form, 141
Form 20 - Trial Log L
How to use, 44
Sample form, 142 LAVIIYER
Form 21 - Rebuttal Basic functions
Persuade the judge/convince the court, 4' 30
Figure 23,45
Win the case, 30
How to use, 44-45
Sample form, 143 Qualities of a good lawyer, 5-7
Courage,6-7
Form 22 - Arguments/Trial Memorandum Honesty,5-6
Figu.e 24, 45 lntegrity,5-6
How to use, 45 Qualities of a persuasive lawyer, 31-32
Sample form, 144 A fighter, 31
Form 23 - Evaluation With integrity, 3'l
Figure 12, 16 With respectable abilities and judgment, 31
How to use, 15-17 , 45-46 Skills of a trial lawyel 6, 30
Sample form, 145 Listening and understanding, 30
Speaking clearly and briefly, 6, 30
Thinking quickly/on your feet, 30
I 50 FORI\4S - LAWYER
Tasks of a lawye\ 4, 17 ,23, 30-31 , 43, 46-48,
P
69,74
Conduct direct examination and present
PERPETUATION OF TESTIMONY
exhibits.30-31
Scc Rule 23, 51; Rule 24, SS 1 & 2
Cross-examine, impeach, rebut, 31
Compared with discovery and depositions, 62, 74
Know your judge, 47-48
Src Rule 23, 51; Rule 24, SS 1 & 2
Let justice triumph, 4
To obtain and present evidence,6l
Make objections and motions to strike out, 31
Make offer/tender of proof, 31
Order of proof, 46-47 PERSUASION
Read every document, 17, 43 Lawyer's task: Subrnit persuasive memoranda, 31
Redirect and corroborate, 31 Qualities of a persuasive trial lawel31-32
Submit persuasive memoranda, 31
When judge stops presentation of further
evidence,69,74 PHILIPPINE BAR ASSOCIATION
SecRule 133, $$ 6 Circumstantial evidence, I
Three things necessary to win a case, 4-5 Nakpil & Sons v. Court ofAppeals and
companion cases, 9
LAYING THE FOUNDATION, 18 Pictures,9
LEADING QUESTIONS, 70
PRESENTATION OF EVIDENCE
LECTURES Problems in the presentation of evidence, 5174
Presentation of Evidence, 4, 25 Admissibility of evidence, 56-6'l
Presentation of Oral and Documentary Dying declaration, 58-59
Evidence,29,49 Exclusionary rules, 57-58
Problems in the Presentation of Evidence, 53, 71 Relevant evidence, 56-57
Testimonial qualifications, 60-61
LEGAL AID, 4, 24-25 Degree of proof required, 56
Weight and sufficiency of evidence, 54, 56
LLEWELLYN, KARL, 29.30 See Rule 133
Treason,56
Facts a lawyer must prove, 54
Facts deemed proved even without
evidence, 54-55
M Judicial admissions, 54-55, 7 1 -72
Sce Rule 129, S 4
MARTIAL LAW Judicial notice, 54-55, 71
Civil Liberties Union of the Philippines, 3, 25 Sr'e Rule 129, $$ 1-2
State of the Nation After Three Years of Generally,53-54
Martial Law,3,25 Obtaining and preseNing evidence, 61-69
Credibility of public figures, 6 Judicial methods, 61-63
Declaration of, 3 Extrajudicial methods, 63-66
Marcos, Ferdinand, 3 Presenting and offering evidence, 69-71
How to question forgetful witness, 69-70
MISSING PERSONS How to preserve evi'lence exfajudicially, 70
S/e Checklist 4 - Tracing a Missing Person Who must prove the facts, 55
Tasks of a lawyer in presenting evidence, 7-23
Get evidence in, 7-'17
Keep adverse party's evidence out,21-3
o Know rules on evidence, 18-21
Meticulous preparation, 17
OBJECTIONS Preserve record for appeal, 21
5c., Checklist 5 - Objections Using trial checklists, 8-10, 79-93, 99'114
Lawyer's task: Make objections, 31 Using trial forms, 1'l-14,4546
LAWYER - PRESENTATION OF EVIDENCE l5l

Techniques of presenting oral and Rule 24 (Depositions before action or pending
documentary evidence, 29-50 appeal), 6'l, 74
Basic functions of a lawyer, 30 Rule 24. S 1 (Depositions before action;
Generally,29-30 petition),74
Order of presenting witnesses, 46-47 Rule 24, S 2 (Contents of petition), 74
Qualities of a persuasive lawyer,3'1-32 Rule 25, $ 6 (Effect of failure to serve written
Skills of a trial lawyer, 6, 30 interrogatories), 74
Tasks of a lawyer, 30-31 Rule 26, S 5 (Effect of failure to file and serve
Tips in presenting witnesses, 19, 11849 request for admission), 74
Trial book. 3546 Rule 119, S '12 (Application for examination of
See TRIAL BOOK witness for accused before trial), 61
Trial plan, 33-34, 46,48 Rule 119, S 13 (Examination of defense
witness; how made), 6'l
PRESUMPTIONS Rule 119, S 15 (Examination of witness for the
Continuing presumption of insanity, 72 prosecution),61
Disputable and conclusive presumptions, 55, 72
Rule 126 (Search and seizure),6'l
See Rule '131, $$ 2 & 3
Rule 128, S 3 (Admissibility of evidence), 73
Presumption of guilt from unexplained flight,72
Rule 128, $ 4 (Relevancy, collateral matteB),73
Rule 129, SS 1-2 (Judicial notice), 71
PRE-TR|AL RULE (2004)
Rule 129, S 4 (Judicial admissions),71
(Administrative Matter No. 03-1-09-SC), 50
Rule 130 (Rules of admissibility), 57
Rule '130, SS 3 & 4 (Best evidence rule), 73
PROOF
Rule 130, S 9 (Parole evidence rule), 73
Lawyer's task: Make offer of proof, 31
Rule 130, SS 20-24 (Witnesses: their
Order of proof, 4647
qualifications), 73
Rule 130, S 2'l (Disqualification by reason of
mental incapacity or immaturity), 73
Rule 130, S 22 (Disqualification by reason of
a marriage),73
Rule 130, S 23 (Disqualification by reason of
OUINTILIAN death or insanity of adverse party), 73
Advocate must be a good man, 6 Rule 130, S 24 (a) (Disqualification by reason
Honesty to client, 6 of marital privilege), 73-74
Meticulous preparation, 17 Rule 130, S 24 (a)-(e) (Disqualification by
Read every document, 17, 43 reason of privileged communication), 73-74
Rule 130, S 25 (Parental and filial privilege),73
Rule 130. SS 26-33 (Admissions). 73
Rule '130, S 28 (Admission by third party),73
R Rule 130, SS 36-47 (Hearsay rule and its
exceptions),73
REBUTTAL Rule 130, S 37 (Dying declaration), 73
Lawyer's task: Rebut, 3'1 Rule 130, SS 48-50 (Opinion rule), 73
Trial book, 44-45 Rule 130, S 50 (b) (Opinion of ordinary
witness),50
REVISED PENAL CODE Rule 130, S 5'1 (Character evidence), 73
Art. 114, S 2, 73 Rule 131, S 1 (Burden of proof), 55, 71-72
Rule 131, SS 2-3 (Presumptions), 72
RULES OF COURT Rule 132, S 36 (Objections),26
Rule 10, S I (Effect of amended pleadings), 72 Rule 132, S 40 (Tender/Offer of excluded
Rule 21 (Subpoena and subpoena duces evidence),26
tecum),61 Rule 133 (Weight and sufficiency of evidence),
Rules 23-29 (Depositions and discovery),6.1 55-56
Rule 23, S1 (Depositions pending actions, Rule '133, SS 1-7 (Weight and sufficiency of
when may be taken), 74 evidence),72
152 PRESENTATIoN oF EVIDENCE - RULES oF CoURT

Rule 133, S 2 (Proof beyond reasonable Form 17 - Statement Analysis
doubt),72 Form 18 - Exhibit cuide
Rule 133, S 3 (Extrajudicial confession, not Defendant's Exhibits, 35, 44
sufficient ground for conviction), 73 Evaluation, 35, 45-46
Rule '133, S 4 (Circumstantial evidence), 72 5c. Form 23 - Evaluation
Rule 133, S 6 (Power of court to stop further Facts, 35, 39
evidence),74 5.. Form 7 - Persons lnvolved
Form 8- Fact Log
Generally,35,46
Law Notes,35, 39-40
T Sre Form I - Law Notes
Motions, 35,40
TESTIMONIAL QUALIFICATION sce Form '10 - Motions
Privileged communication, 60-61, 73-74 Plaintiff's Case, 35, 41-43
see Rule 130, S 2a (a) - (e) See Form 12 - Case Chart
Attorney and client, 61, 74 Form 13 - Fact Chart
Doctor and patient, 61, 74 Form 14 - Admissions
Marital confi dences, 60, 7 3-7 4 Form '15 - List of Wtnesses
See Rule 130, S 24 (a) Form '16 - Witness Guide
Priest and penitent, 61, 74 Form 16-A- Witness Notes
Public officers, 60 Form 17 - Statement Analysis
Privileged relationships, 60, 73 Form 18 - Exhibit cuide
Dead man's rule, 60. 73 Plaintiffs Exhibits, 35, 43-44
See Rule 130, g 23 See Form 19 - List of Exhibits
Marital relationship, 60, 73 Pleadings,35,38
Sec Rule 130, g 22 SecForm6-Theory
Parental and filial privilege, 60, 73 Pre-trial, 35, 4041
See Rule 130, $ 25 see Form 11 - Pre-Trial Plan
Proof of similar act, 57 Trial Log, 35, 44
Who can be a witness, 60, 73 See Form 20 - Trial Log
See Rule 130, $ 20 Rebuttal, 35, 4445
lnsane persons,60. See Rule 130, S 21 See Form 21 - Rebuttal
TRIAL BOOK
Arguments/Trial Memorandum, 35, 45.
See Form 22 - Argument
Control,35-37
Civil Docket. 36 w
Sc. Form 4 - Civil Docket
Retainer Record. 37 WIGMORE
Sc. Form 1- Retainer Record A Student's Textbook of the Law of Evilence, '114
Summary to Date, 37 As authority on evidence, 53, 7'l
Sc Form 5 - Summary to Date Code of Evidence, 114
Things to Do-Facts, 36-37 lmpeachment by prior inconsistent statement, 66
S?. Form 2 - Things to Do-Facts
Things to Do-Law, 36-37 WNNING A CASE
S.. Form 3 - Things to Oo-Law Basic function of a lawyer, 4, 30
Defendant's Case, 35, 44 Meaning,30
Sre Fqrn 12 - 6... 6l].* Strong direcl evidence and its effective
Form 13 -
Fact Chart presentation as key to winning cases, 68
Form Admissions
14 - Three things necessary to win a case. 4-5
Form 15 -
List of Witnesses
Form Witness Guide
16 - wlTNESS
Form 16-4 - Witness Notes Arguing with adverse lawyer, 15
Believable, '14
'I
RULES OF COURT - WITNESS 53
Disqualification by reason of mental incapacity
or immaturity), 60, 73
See Rule 130, $ 21
Examination of child witness rule (2000), 73
Familiarizing witness with courtroom and court
proceedings, 69
ForgettuI witnessss, 69-70
Gifls from clients, 14
Hesitant witnesses, 15
lmpeachmsnt of witness, 66
lmportance of securing affdavit from witnsss
who may change his story 70
Opinion of ordinary witness, 50
See Rule 130, $ 30 (b)
Order of presenting witnessss 46-47
Qualification of witnesses, 60, 73
See Rule 130, SS 20-24
Recollsc'tion of witness, 70
Reliable, 14
Repeating the question, 15
Right of accused to confront and cross-
examine witnesses against him, 58, 73
See Constitution, Art. lll, S 14 (2)
Strong witness, 4G47
Taks witness' written statement, 1+15
'lips in presenting witnessos, 4&49
Truth, 15
Wsak witness, 4647
Witnsss Guide, 41-42
Witnsss Notes, 42
154 WTNESS
Aboui the Editor
fose Manuel I. "Chel" Diokno, Esq.. a

I prartitirrg l.trrrt'r i,,r l7 r,,ar.. he.rcl.' Iht'
lliokno L,rrr Ccnl('r. .r r'r .r( \ r'ed it(.(l [)rr'\ i(i(.r ()[
continuing Iegal erlucation, antl chairs the F'ree
Legal Assistance Ciroup.r (FLA(l), the okl:st
and largtst group of lrum.rn rights larvvers in
the Philippincs.
As Ct'neral Counscl of the Sorr.rte Bluc

Ribbon Comn.rittee from 200I to 200.1, Attr,.
Diokno investigatecl manv high profile c.rses,
anrong thenr the PIATCO airport contr.rcis,
the Casecnan polver projtct anel the "fose
I'idal" case. As Special Ct'runsel to the Bo.rrd
of Directors of the Dt,vt lopment B.rnk ot the
Philippines from 2(X).1 to 2006, he contlrrcterl
stttdies .rncl invt,stigations ancl nr;rrlc prolicv
recommerrdations to the Boarcl and its conrmittees on the accountabilitv of pr-rblic
officers, corForate govcrnance, arcilrcrtnce to stancl.trds of ethics for public olticers
and banking matters.
Aftv. Diokno obtained a lri lls //()ch),'of l.rrvs de€iree, nigut (ttlt /rilidt,, ironr thc
Northern Illirrois Universitv ar.rd r,r,as adnritterl to thc Bar of the State of Illinois
in 1986. He secrrretl his lan licenso in the Philippirres irr 1989. Attr'. I)iokno
teaches lax' ,rt the Ateneo Latv Sclrool antl tl.rr: Dc L.r Salle-Professional Schools,
Inc.-Graduate School of Btrsiness (DLS-PSI-CSB) -Far Eastcrn Universitr' (FEU)
Institutc'of Lan JD-MBA Program.
'.A must read notiust for lavuyers lut for all Filipinos who should
patriot
f,i6riiniote iUoudtfiis Oiiiiiarit and most couraieous
WtfO StfOUld haVe bgen Pfgsident"' - F SIoNILJOSE'
NationalArtistrorLiterature'
Palanca Awardee
Ramon Magsaysay Awardee and fivetime
JOSEW.DIOKNO,lawyer,Senator,streetparliamentarianand
champion of human rig;hts, was arreste d in 1972 by
the martial
lawregimeofFerdinandMarcosandheldwithoutchargesand
withouttria|fortwoyears.Afterhisreleaseinlg74,DloKNo
ideals of
delivered a series of lectures on the techniques and
theFilipinolawyer,Forthefirsttime,theselectures,together
withthetrialchecklistsandformsthatDlOKNodevised,have
been gathered in one book'
,,... the cumulatit;e teachings, the grandeur of his thoughts"

force of [senator Diokno'sl
'
practice of law ' ' '[must] be perpetually
[and] the triumph of his principles borne by his
the lawyer to the man of truth'"
renewed...This is the man who raised the standing of
Court
- JUSTICE ROMEO J. CALLEJO, SR , Supreme
W' Diokno' a legend in
",..an excellent manual for a new generation of \awyers" "lose
philippine politics and legal luminary...remains the epitome of the lawyer's lautyet'"
_JUST|CEANTONloEDUARDoB.NACHURA,SupremeCourt,formerSolicitorGeneralandPresidential
political law
Legal Counsel, author of lawbooks on constitutional and
compilation on the practice of lazo by the greatest trial lawyer

,,A remsrkable the
ZENAIDA N rlrpRt'tO' Senior Deputy Court
Phitiltpine legal professionhas etser known..
Administrator, supreme court and 1994 awardee for Most
"'-
outstanding Regional rrial court Judge
to case management and

"A ualuable, functional, hands-on and practical approach
SIMEON V. MARCELo, Former
litigation. Shouldbe on eaety new lawyer,sbooklist,,.,,
Ombudsman and Solicitor General
,,...the kind...lThis book isl a wonderful serrtice to the legal profession" 'will
first of its
surelyi**oitolir" [senotor Diokno's] stetling achieaements in lazu"'
DR FORTUNATo
GUPIT,JR.,Formerlawdeanandauthoroflawbooksonremediallawandrelatedsubjects
ISBN : 978-97 1 -937 87 -o-9

Diokno On Trial

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Techniouos and

Edited, u$abd and supplemenbd by

THE COMPLETE GUIDE

Edited, updated and supplemented by

All Rlghts Reserved.

Cover Deslgn and tayout by Lahlee S. Taguba

Publlshed by the Diokno Law Center

To all those who knew and loved my father, Ka Pepe,

To all the members of the Free Legal Assistance

This book is also dedicated to the memories of

jose Manuel L Diokno

SECTION 4: LAW NOTES

SECTION 6: DISCOVERY AND PRE-TRIAL

SECTION 7: PLAINTIFF'S CASE

SECTION 8: PLAINTIFF'S EXHIBITS

SECTION 9: DEFENDANT'S CASE

SECTION't0: DEFENDANT'S EXHIBITS

SECTION 11: TRIAL LOG

SECTION 12: REBUTTAL

SECTION 13: TRIAL MEMORANDUM

SECTION 14: EVALUATION

INDEX OF TOPICS T47

ABOUTTHE EDITOR 155

Cover: Jose W. Diokno in a court hearing

arelv does a lawyer come across a practicaf experience-based handbook

Having served on the Supreme Court for over 11 years, (I retired on 6

y legal educationbegan as a young boy, when I would accompany

In the span of a practice that lasted more than 40 years, my father

A Trial Book is a folder or a notebook (usually a three-ring binder)

book is divided into three parts. Part 1 consists of the above-

As much as possible, I have tried not to touch the contents of the

Dioktto on Tial: Techniques anil lileals of the Eilipino Lautyer is a

JOSE MANUEL r. DTOKNO

Mrs. Carmen I. Diokno, my mother, Chair of the Board of Directors of

The Board of Trustees of the lose W Diokno Foundation, Inc',

Ms. Divina A. Diokno, my wife, for her valuable suggestions,

My sisters (in no particular order), Ms. Maria Socorro I. Diokno, for

Ms. Christiene Salve Demaisip, my very capable and elficient

Bor:r 26 February L922 at Manila, Philippines

2lanuary 7962 79 May 1962: Secretary of |ustice

. "'{ Delegate, International Commission

i-r September 1972 11 September 1974: Political Prisoner

.'j;-l 1987: Human Rights Lawyer, Patriot and Nationalist

Principal Government Negotiator in Peace Talks with the National

Awards and Recognition

Jose W.Diokno Professorial Chair in Business Law and Human Rights, by

Order of Lakandula with rank of Supremo, by President Gloria Macapagal

Plaque of Appreciation in recognition of his invaluable contributions

Doctor of Laws Honoris Caus4 by the University of the Philippines, 10

naque of Merit as Most Outstanding Alumnus of the I aculty of Civi\

fu1ue of Recognition for his exemplary dedication as champion of human

Pla.{ues of Recognition by the Executive Training Institute of the Philippines;

I-:ques of Recognition by the Kiwanis Club of Tagbilaran; Young Men's

PGEAPlaque of Honor as most outstanding senator for 1971, in recognition

Plaque of Appreciation in recognition of his outstanding achievement

Most Outstanding Senator by rhe Philippine Free Press, 7967-797O; only

Post-Graduate Department of the School of Experience, by De La Salle

TRIAL TECHNIQUES AND IDEALS

"A lawyer lives in and by law; and there is no law when

Diokno On Trial: Techniques and ldeals of the Trial Lawyer

Originally entitted, "Presentation of Evidence," this talk wos delivered on

gathered to discuss the presentation of evidence. The first

I used to go along with my father when I was about twelve years