TECHNIQUES OF PRESENTING ORAL AND DOCUMENTARY EVIDENCE Jose W. Dioxno In this talk, Senator Diokno delves deep into the specific tasks and essential skills of the trial lawyer. He discusses how to plan the trial of a case and explains how to use the trial forms that he devised. He ends with tips on presenting witnesses. ‘A transcription of this talk, originally entitled, "Presentation of Oral and Documentary Evidence” was published in Trial Techniques: Proceedings of the Institute on Trial Techniques 1979. It fs based on a lecture detivered in a forum held by the U.P. Law Center from 5-10 November 1979 at the Bocobo Hall, University of the Philippines, Quezon City." The transcription was reprinted in the first volume of Trial Lawyer's Magazine in November 1986 as part of a collection of materials on trial technique written by local and foreign experts on trial practice.* In addition to the forms that Senator Dickno devised, one more has been included in Part 3 the form on Discovery (Form 11-A, see page 132). techniques of presenting oral and documentary evidence. It is a subject on techniques and not law. Itis a discourse on presentation and not marshaling of evidence. Consequently, I shall not discuss, except peripherally, the law, nor shall I go into any great detail about preparation. What I will try to do is offer you a miscellaneous collection of tips that T hope may help you try a case. I do not propose tobe scholarly, or complete, or even original. What I do hope is that what I will discuss here may be useful and practical. A s the title of this discourse suggests, this is a subject on Before I go on, would like to give you a warning, I stressed techniques because that is the subject matter, and not because technique is all that matters, For a lawyer to be complete, technique and ideals must go hand in hand. As American legal philosopher Karl Llewellyn said, “Technique Diokno On Trial: Techniques and Ideals of the Trialeae) aS without ideals is a menace. Ideals without technique are a mess. Oneneeds to put technique to work upon ideals and with vision” Now, technique is a means to an end. What's 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 judgment 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 court that the law is on our side. We must persuade the judge that it is right and just that judgment be rendered for our clients. In short, itis 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, itis, 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 isnot only to find the correct, legal 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 able to offer admissible evidence and he must do so in the right order and at the 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 proper this disc Seco this by w Thir case. He by rebut that his redirect Final admissib; of course and law i He does written 1 Now direct exa to strike corrobora We cannc on the fir: THE QUA But b Our task i says, “Wh saying.” | technique must be p What most imp factors th: the judge going to fi the judge the law bu 30 “Diokno On Trial: Techniques and Ideals of the Trial Lawyerert ss. One needs trial lawyers no chance to function of a at do I mean > that if your And if your made to pay the law. We w is on our udgment be Dok tells you of your case se of justice tis person is > that it will ory familiar asters at the t the law is ‘Great said: isters at her i the correct F outrage of b of a trial must do so sive effect. e of action. re, he must his client's nation and Serer gas Rec kt arco proper introduction of exhibits. And that seems to be the subject matter of this discourse. But this is only one of the tasks of a lawyer. Second, he must be able to keep the opponent's evidence out. He does this by well-placed and timely objections and motions to strike out. Third, he must be able to expose the weaknesses of his opponent's case. He does this by effective cross-examination, by impeachment and by rebuttal. Then he must strengthen or rehabilitate any part of his case that his opponent has succeeded in weakening. The lawyer does this by redirect examination and presenting corroborating evidence. Finally, he must preserve the record so that, if the trial judge excludes admissible evidence, then he must make an appropriate offer of proofs And of course, at the end of the trial, he must depict the stance of the evidence and law into the strongest and most persuasive picture of his client's case. He does this normally in this jurisdiction not by oral argument but by written memoranda Now let me repeat briefly the specific tasks of a lawyer: (1) conduct direct examination and present exhibits; (2) make objections and motions to strike out; (3) cross-examine, impeach and rebut; (4) redirect and corroborate; (5) make offer of proof; and (6) submit persuasive memoranda. We cannot cover all of these subjects in this discourse. I will concentrate on the first two aspects, leaving the rest for a later exposition. THE QUALITIES OF A PERSUASIVE TRIAL LAWYER But before I go into this task there is something that I must stress. Our task is to persuade the court. But there is a very ancient saying which says, “Whatever you are speaking so loudly, I cannot hear what you are saying.” In our case, this means that a lawyer must not only have the techniques of presenting evidence and persuading, his own personality must be persuasive, What are the factors that make a persuasive trial lawyer? | think the ‘most important is that you earn the respect of the court. There are many factors that lead to this. I think the most important factors are, first, that the judge recognizes you as a fighter. If the judge knows that you are not going to fight, he will ride over you and over your case. The second is that the judge respects your ability as a lawyer, not only your knowledge of the law but also your judgment. Third, the judge respects your integrity.ene tc 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 ATRIAL LAWYER ‘The most important skill and the one that I have found most lacking, especially among the younger members of the bar, is the ability to listen 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 to listen. The second skill that a trial lawyer must have is the skill to speak Glearly, distinctly and understandably 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 skill that a trial lawyer must have is he must be able to think on his feet, to make decisions quickly. Sometimes no matter how well prepared you are, you will be caught by surprise in court, Unless you can think quicly, 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. jues and Ideals of the Trial Lawyer PLAN THE What must havi trial lawyi technique facts I wal the trial p prove, an¢ that I wan You 7 make obje better chat a plan. Ge Occasiona how often The tr in mind o depart fro that you k not try ou two, and happenst at least tw you are gi have som Now plan will! the case. planonth ‘words pei But only Every just puta back of th cite cases looking a than toda make rattities of a Is if he is, } lacking, to listen y to hear berally try hs cannot Itis being s but by asically, to speak : Lsay, if fruch. We meaning fe to think ow well you can, Hise factor mm your having a maining inly we earlier fen those le degree. and self- pected, L Chapter 2: Techniques of Presenting Oral & Documentary Evidence PLAN THE TRIAL IN ADVANCE ‘What is the essential trial technique? What is the technique that you must have regardless of whether you have the others or not? Different trial lawyers may give different answers, but for me the most important technique is to plan the trial in advance. To now before I go to court what facts I want to prove, how and in what order | will prove them, and as the trial progresses, to know what I have proved and what I have yet to prove, and before I rest my case, to be sure that I have proved everything that I wanted to prove. ‘You may not know how to cross-examine, you may not know how to make objections, but if you have planned your case, then you have a much better chance than a brilliant cross-examiner who has gone to court without a plan. Going to court without a plan is like trying to box blindfolded. Oceasionally, you can knock your opponent out with a lucky punch. But how often can you expect to be lucky? The trial plan can be elaborate of it can be simple. It can be kept purely in mind or it can be written down. You can follow it closely or you can depart from itat the trial. But there must be some plan if only to make sure that you know what you are doing at the trial. In this jurisdiction we do not try our cases continuously. We start one day with one witness, maybe two, and then the case may be postponed for a month or two. So it often happens that within one week, many of us trial lawyers are in court trying at least two and sometimes as many as seven or eight different cases. If you are gong to plan as you must every case that you try, then you have to have some records of your trial plan. it therefore should be in writing. Now how much you are going to plan, that is, how elaborate your plan will be, depends upon the character of the lawyer and the nature of the case. My late father, who was a trial lawyer, used to keep or make his plan on the back of used envelopes. And they consisted of only one or two, words per witness and maybe a description of the more important exhibit. But only one or two words to remind him what it was all about. Every time he presented a witness or identified an exhibit, he would just puta little check mark or cross out the words that he had written at the back of the used envelope. But my father had a brilliant memory. He could cite cases by volume and page in the Philippine Reports without reading or looking at them. And he was practicing at a time that was more leisurely than today (see Figure 14). [have never been able to follow his example. I make rather elaborate plans, Even in the simplest case, I fill out at least the Diokno On Trial: Techniques and Ideals of the Trial Lawyer 33ern eer Seas to prove. I may not be able to fill CHART tee —| Ff in the exhibits and the witnesses Linear | tatin completely for my opponent, but SHOT Thave a pretty good idea of who heis going to call and what exhibit he is going to present. Where dol 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 ina more elaborate case, L use almost all of the forms that have been given here. So if you Foun i coco Char ose page 72) don’t mind, I'd like to go over them one by one with you. [keep the forms in a three-ring binder that I call a Trial Book. You can also use a simple folder. On the left side, put a simple two-hole punch and file one half of these forms there. Then on the right, put the two-hole punch on top and file the remaining forms there. So that, in court, the pages open conveniently and do not occupy much space. I divide the Trial Book into the following 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's Exhibits 9. Defendant's Case 10. Defendant's Exhibits 41. Trial Log 12. Rebuttal 13, Arguments/Trial Memorandum 14. Evaluation Diokno On Trial: Techniques and Ideals of the Trial Lawyer 35,eee ar ein 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 (sce Figure 10), 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 often you will wanta reminder of 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 10) and Things to Do - Law (Form 3, see Figure 26) are the key to the whole book Here is where I list everything T need to do in the matter of investigating the facts and |/qemmn!———ipeens— researching the law. ieee Things to Do = Law (Form 3, Faure 1 Gul Dose! oc cage 124) see Figure 26) has Issue, Assigned To and Date. issue 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) has What, Assigned To and Date. Suppose you need a copy of asurvey plan of land ina 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 itis the office that will do it, then put the initial of the person in the office who will do it. If itis others, then you indicate who it is. 36 Diokno On Trial: Techniques and ideals of the Trial Lawyer hat Why is there are ca you may we opponent. 7 severe injur hospital rec directly, oth use of “othe or not, and What is Thisis exactly wh Things to [ are what y The Re is where tt how much the names As mo the initial more witn of your fi Now! it often af going int “Evaluatic summary with this But th my paper: biased.” It summary the case, 1 Readi else that | come to tlTeen eed he following 2 Figure 10), nd Summary Sec C Rage enh an use Actin 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, ifitis 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 muich 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 least, 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. Luse 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 form 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 Ihave 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. “Diokno On Trial: Techniques and Ideals of the Trial Lawyer 37ceed oad 2, PLEADINGS x The second section of the Trial Book is very simple - Pleadings. And eer the form that goes with pleadings is Theory (see Figure 17). You don’t really peonei need this except that it is an intellectual discipline to fill it out. TheFactL the case. I You think you know your hecleme theory; you think you know the The Fact THEORY EIBES Ff adverse party’s theory; but when the partie you try to summarize the theory, eae uaH to putit into a few words enough foci to fit into this form, you may realize that you had the wrong You w picture of your own or your the Fact L opponent's theory. the inform Sometimes There are Jittle phrases that if there was may have escaped you after the and get al first reading of the pleadings. Itis martial law when you get down to preparing case and 11 the theory that you begin to data that c: understand what the case is really forget who all about. Then oe see page 127 The Theory form is divided farmer'pal Wosre Tony ave Pore 120) into three parts— complaint theory, many perso answer theory and reply theory. qaenebned | ‘The first part, complaint theory, contains liability theory and damage theory. Be. Saussa ‘And this is because most cases, as civil cases, have two elements. The first Seis element is the legal responsibility of the defendant to the plaintiff. The braiches of second element is the damages or remedies that the plaintiff is entitled use a legal s to. So you have to be clear on both aspects and you have to know the meiof whol 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 Aer the form on Theory (Form 6) so that when I bring my Trial Book to courtit | ease is complete. It is all there. If the pleadings are voluminous, | file them in j 4 exp angth a separate folder. I put a tab on each pleading to make it easy to find itin tis ¢ differe the course of the trial. for this Te Ideals of the. 38 Diokno Ondings. And don't really know your u know the y;but when. the theory, rds enough , you may the wrong mor your nrases that ou after the adings. Itis o preparing, u begin to ase is really is divided laint theory, eply theory. nage theory. ts. The first jaintiff. The ‘is entitled 9 know the yht behind. to court it le them in ofind it in SCAR aU ROL Ra ee uc Aeon 3. FACTS After the Pleadings, the next section is Facts. You have two forms here: Persons Involved (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 the case. Itis different from the Case Chart (see Figure 15), which indicates the 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 42) refers to ultimate facts. You will note that there is Date, Event/Participants 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 client's 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 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 Involved (Form 7, see page 127). 1 do 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 Involved (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. MAKE: "LAW NOTES” After the section on Faets comes the section on Law Notes which contains the form Law Notes (Form 9, see Figure 18). want to tell you that I keep another book which I often bring to court called my Trial Manual. Itis 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 in Trial: Techniques and Ideals of the Trialadem ke LAW NOTES: FFigue 76 baw notes (seepage 122) 5, MOTIONS ‘The next section is for Motions This is self-explanatory. Here you only put down the motions that have something to do with the trial. All important motions should 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 Figure 19), which is a guide for preparing for the pre-trial All the matters to be my Trial Manual, alphabetically arranged. Here for example, under letter C of my Trial Manual, I have notes on Character evidence ~ its admissibility and weight; Confessions — their admissibility, 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 don’t have to go looking for my previous research. All Thave to do is pull out my Trial Manual and bring that particular research up to date. I researched, let us say, extrajudicial confessions in 1975. So I now have to look up the SCRA from 1976 up to the present date to make my research current. 40. Diokno On Trial: Techniques and Ideals of the Trial Lawyer taken up i you ean be pre-trial c The ni Chart (Fon (Form 14, (Form 16, Analysis ( havealrea List of Wit The W all the dei be a credi makukuha then, ther about. Fo: him by as from the « or “tends Thebs part becat You will 1 means the ‘bottom pe the witnes before yo sure youl when you with the v overlooke Follo (Form 47, where yc where yo said, theyext time I involve a have to go s research. ut my Trial particular earched, let fessions in ook up the the present hh current. hapt nting Oral & Docu cr taken up in a pre-trial are here, by category. By going through this form, you can be assured that you have not forgotten anything important for the pre-trial conference. (see also Form 41-A on Discovery, page 132) 7. PLAINTIFF’S CASE ‘The next section is Plaintiff's Gase. The forms included here are: Case Chart (Form 12, see Figure 15), Fact Chart (Form 13, see page 134), Admissions (Form 14, see page 135), List of Witnesses (Form 15, see page 136), Witness Guide (Form 46, see Figure 17), Witness Notes (Form 16-A, sce Figure 20) Statement Analysis (Form 17, see page 139) and Exhibit Guide (Form 18, see Figure 21) .1 have already discussed the Case Chart (Form 12). Admissions (Form 14) and List of Witnesses (Form 15, see page 136) are self-explanatory. ‘The Witness Guide (see Figure 11) is very important. This will tell you all the details of the witness, including how he looks, if he appears to be a ctedible witness, and whether he is reliable in the sense that “hindi makukuha ng kalaban.” (He cannot be compromised by the other side.) And then, there are the things to watch out for or that we should be careful about. For example, a witness who talks too much. You are preparing him by asking him questions; before you know it, he is five miles away from the question, With a witness like that, you put down, “talkative” or “tends to exaggerate.” The bottom part of the Witness Guide (Form 16) is the most important part because it tells you the points you need to bring out from the witness. ‘You will notice there are little spaces for check marks on the side. That means that before you end your direct examination, you go through this bottom portion and check if you have elicited everything you needed from the witness. If you are using this form for your opponent's witnesses, then before you end your cross-examination you check this portion to make sure you have covered everything you wanted to cover on cross. That way, when you end your direct or cross-examination, you will not be burdened with the worry that you forgot to ask the witness some important point or overlooked an important matter, Following Witness Guide (Form 16) is the form Statement Analysis (Form 17, see page 139). This is important especially in criminal cases where you have the affidavits of the prosecution witnesses. Here is where you analyze the statement. You note down what the witness has said, the page, etc., or in case of a sworn statement, the question number. Diokno On Trial: Techniques and Ideals of the Trial Lawyer 417Part | - Trial & Ideals. Not all, but those points that you think you are going to use for cross, should be noted. Those points you would want to keep in mind because they can be useful later on, Usually, you donot have this for your own witnesses. For your own witnesses, what you usually have is only the Witness Guide (Form 16, see Figure 11) together with some kind of a signed statement by the witness, 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. If, for example, you are the counsel for the plaintiff, Fymeso mines ses scopes then in plaintiff's witness section, note that you will not fill 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). You must fill 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. [have seen at least two cases where the adverse party presented documents which Iwas able to establish later were false. In one case it was 42. ‘Diokno On Trial: Techniques and Ideais of the Trial Lawyer fais EXHIBIT ene way back. | of you kno famous Rc He wrote t best books ever read, AD. This i advice that document, still go toc and then portions of by their opy or contradis -BePLAIN The ne: Book is Pla contains therarcen ness Notes n 16) your notes ‘orm 16-A), ose points isel for the Witness on ination on right side pu should u must fill viewed on have read presented case it was | euerr euioe Chapter 2: Techniques of Presenting Oral & Documentary Evide ‘Feet fei Gute (s00 age 740) way back. Idon’t know how many of you know Quintilian, the very famous Roman-Spanish lawyer. He wrote the book, still one of the best books on trial practice I have ever read, written in the year 88 AD. This is one of the pieces of advice that he gives: “Read every document.” But many lawyers still go to court, present exhibits, and then are surprised when portions of the exhibits are read by their opponents which destroy or contradict their case. The next section of the Trial Book is Plaintiff's Exhibits which contains the form called List of deliberate, I think; in the other, the g00d faith of opposing counsel was taken advantage of. But the funny thing is that, in the first case where believed the forgery was deliberate, the adverse counsel did not need thatletter in order to prove his case, He had already proved his point buthe presented a fake letter. When I proved that it was fake, his case blew up in his face. So what lesson did I Jearn from that? First, never present any forged document, not only is itillegal, butif you get caught you are dead. The second thing is, read every document, every line, every page, every word of every exhibit before you present it in court. Now this is advice that goes way, ust oF EXHIBITS. Diokno On Trial: Techniques and Ideals of the Trial Lawyer 43feoe ea ‘echniques 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. De: DEFENDANT’S CASE ‘The Defendant's Casc, which is the next section in the Trial Book, is identical to the Plaintiff's Case in make-up and has the same forms: Case Chart (Form 12, see Figure 15), Fact Chart (Form 13, see page 134), Admissions (Form 14, see page 135), List of Witnesses (Form 15, see page 136), Witness Gulde (Form 16, see Figure 17), Witness Notes (Form 16-A, see Figure 20), ‘Statement Analysis (Form 17, see page 139) and Exhibit Guide (Form 18, see Figure 21). =10,-DEFENDANT’S EXHIBITS This is followed by the section called Defendant's Exhibits containing the form List of Exhibits (Form 19, see Figure 22). This form is used to keep track of your opponent's exhibits. Ifthe 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 page 142) is simply a brief record of the proceedings. ANT puthere 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... who identified exhibits A, B and C.” This is my quick reference guide to the status of the proceedings. ~42;-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 REBUTTAL a Figure 23, Rat some imp trial, or he But you | yourself, this in you memorani record tho 14, The k which c Evaluatior 1 fill this comes dor yourself form. As improve « yourself your weal‘hibit made particulars 1. These are court rules opies of the ial Book, is orms: Case Admissions 5), Witness ture 20), Form 18, see containing sed to keep nous, Imay 1 (Trial Log dings. ANT "postponed of witness. ide to the s reminder, at points in. you will ; Cec mae ker cure Figu 23.Rebutal 300 page 143) put it at the end of every session ‘because that is the time when you can remember the point, the witness and/or exhibit that needs to be rebutted. If you know which witness you will use to rebut a particular matter, you can also put that here. There is only one form here, Rebuttal (Form 21, see Figure 23) ee 43. ARGUMENT Then you have the Argument! Trial Memorandum section which contains the form on Argument (Form 22, see Figure 24). This is an interesting form. Inmany cases, the adverse counsel may forgetto 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 yourself, so that you can include this in your final arguments or trial memorandum. This is where you record those points. 14s EVALUATION : The last section is Evaluation, which contains a form on Evaluation (Form 23, see Figure 12) [fill this up when the judgment comes down. You have to criticize yourself when you fill out this form. As I said earlier, you can improve only if you can look at | yourself objectively, recognize your weaknesses, recognize your ‘ARGUMENT Figure 24, Argument (see page 146) Diokno On Trial: Techniques and ideals of the Trial Lawyer 45I 3) 1 Tn 8 failings and try to improve on them. And the 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 hopefully 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 Why 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. Itis 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’thave a record 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 1 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. Ihave discussed the mechanics, now let us discuss the principles. How do you plan your order of proof? Well, the usual practice is this: ‘You start the 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 most, 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 the capability to present evidence on the essential elements of the case — at least as far as liability is concerned. Ifall your witnesses are strong, you are lucky. Normally, you are going to present also a weak witness. You would not want to because nobody 46 Diokno On Trial: Techniques and Ideals of the Trial Lawyer ‘wants to p that partic with such put some points. Na witness cal you end, h Now, same orde Well, witness wi very impd evidence, inasmuch defendant So, fro thrust of y what the c defendant first impre the chron What is in overcome Now, ¢ ‘witnesses | many you Ithink the his testime tum him « Quest Answ Quest Your < being able objectionapies forces you opponent u promise made. Of e the most plan is in v you are emendous prepared al you are n't have a trial what ranscripts. aing to do over your al Book is fam going, o think of that I .chniques of Presenting Oral & Documentary Evidence ee wants 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 with 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 you end, hopefully, with a strong witness. Now, what about the proof of the defendant? Does he follow the same order? Well, as far as the defendant is concerned the matter of having a witness who can give the court a general picture of the case is not really very important. Why? Because by the time the defendant presents his evidence, the judge already has a good idea of what the case is all about, inasmuch as all of the plaintiff's witnesses have already testified and the defendant has already cross-examined them. So, from the direct examination of plaintiff's witnesses and from the thrust of your cross-examination, the judge will already have an idea of what the case is all about and what the issues are. Therefore, as far as the defendant is concerned, his major consideration is how to create a favorable first impression on the judge. You don’t have to follow the guideline on. the chronological order of strong witness, weak witness, strong witness. What is important is to hit the judge quickly with your first witness, to overcome the psychological effects of the plaintiff's witnesses. Now, one more factor about the defendant's case. Very often, plaintiff's witnesses testify that the defendant did or said such and such a thing. Very many young lawyers are tempted to have their clients deny it right away. Ithink 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 tum him over for cross-examination, ask him a series of questions like — Question: The 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, what 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 being objectionable. Diokno On Trial: Techniques and Ideals of the Trial Lawyer 470 0— — KNOW YOUR JUDGE in discussing this matter of SHO" witness, weak wet : nave not pa abrfrt Honed the most important ‘consideration of all, whi the judge's preailections i giosyncracies. You will have convince the y man who is sitting on the ‘bench. You may not agree with him; you mal ig on ae you may think he doesn E KNOW wl s a person; not pi ‘pat he is the fellow who 18 BNE to decide your case. He is the man whom you have to persuade, not the Supreme Court, no! the Court of Appeals. You have to get through to him first. ‘Therefore, a basic consideration in planning js to know your judge. I do not mean to know him in the sense of influencing him, ‘put know him gn the sense of knowing his peculiarities, because everyone of us is peculiar 3B some degree. You will ask: fhow 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 rand sit at the back and watch how he tries a case and you will learn a lot. “Another way is to ask your compaieres (colleagues) who have appeared before him: "Hoy, kantusta ba si Judge So-and-so? Ano ba ang ugali nyan? Mahigpit ba yan 0 malutong?” (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 'N PRESENTING WITNESSES Now, I would like to mention, with respect to direct examination, that if you have made a trial plan as I have suggested, then when you go t© if yon ha start presenting your witnesses, you should have no problem. Jacstfollow your Trial Plan. You know your witness weaknesses, you know se hut to watch out for, you know what important points to ring out; sono p roblem, except for one thing: many young lawyers BY to show off their | egal ability in court. ‘The resultis 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 wordsin court. Don’t suxprise the witness by changing So, wordings Tip exhibit th Tip! to your’ to auther meaning "Do "Ye ow “Be 'D ny “Ihave not \e matter of onvince the a; You may w;youmay : your case. Court, not our judge. I tknow him sis peculiar when you quietly and watch how reappeared \gali nyan? 2? What is st and ask ation, that you go to problem. you know. Chapter 2: Techniques of Presenting Oral & Documentary Evidence words. He may not understand you. Very few lawyers follow this. So, Tip number 1: Don’t change your language. Don’t change the wordings of your questions from the office interview to the court. Tip number 2:Don'tever ask any of your own witnesses about any exhibit that you have not discussed with him at your office. ‘Tip number 3:1£ your witness is going to identify an exhibit, explain to your witness all these big words that you have to go through in court to authenticate the exhibit, even if 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, sit.” “Why do you recognize this signature?” “Thave seen it very often.” ‘And so on. There is really very little question about this, as long as your witness knows where you are going with your questioning and understands why you have to ask those questions. So my next tip, Tip number 4, is this: Whenever possible, get admissions or stipulations on your exhibits to eliminate the need for this ritual of identification in court, But this last tip is not an inflexible rule. There may be occasions when you want to keep your exhibit to yourself. What are these occasions? Well, first of all when should you ask for stipulations? My policy is this: If Lam going to present an exhibit on direct examination and if Tam sure that the adverse party know’ my client has those exhibits, then I will present them for stipulation. [lose nothing. But if my documents contain smatters that I will use on cross-examination, or if think the adverse party can prepare a defense, then I keep my documents until the last minute.” 49En In the end, the final 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 { 1 Jose W. Diokno, Presentation of Oral and Documentary Evidence, in Tris Teciwiaues: Proceoiss oF me Insrrute Ox Triat Techwcues ~ 1978 167-207 (Bonifacio A. Abaya ed., UP. Law Center) (1981). | 2 Jose W. Diokno, Presentation of Oral and Documentary Evidence, reprinted in 1 TLLM 15 N'86 | (Jesus M. Elbinias ed.) (1986). 3 Karl Liewollyn, On What is Wrong with So-Called Legal Education, 36 Cows. L. Rev. 651, 662 (1936). 4 Rusts oF Courr, Rule 132, § 40: “Tender of excluded evidence. If documents or things offered in evidence are excluded by the cour, the offeror may have the same attached to or made part of the record. Ifthe evidence excluded Is oral, the offeror may state for the record the name ond ‘other personal circumstances of the witness and the substance ofthe proposed testimony" 5 Supreme Courr Resorts Annotaren (Central Law Book Editorial Staff ed., Central Law Book Publishing Co, Ine.) 8 Soe 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, Matter No, 03-1-08 effective 16 August 2004. 7 utes oF Courr, Rule 190, § 50 (b): “Opinion of ordinary witnesses. ~The opinion of a witness for which proper besis is given, may be recelvedin evidence regarding ~.... Ahandwriting with which he has sufficient familiarity..." 8 On 13 July 2004, the Supreme Court issued Administrative Matter No. 03-1-09-SC, effective | 46 August 2004, which states that, “1. PRE-TRIAL A. ChvilCases . 2. The parties shall submit, at least three (3) days before the prectrial, pretrial briefs ‘containing the following: (2) The documents or exhibits to be presented, stating the purpose thereof. (No evidence shall be allowed to be presented and offered during the triel in support of a party's ‘evidence-in-chief other than those that had been earlier identified and pre-marked during the pre-trial, except if allowed by the court for good cause shown)...” Figure 25. Witras ase that he han 50 Diokno On Trial: Techniques and Ideals of the Trial Lawyeru warit to it yaced., UP, LM 15 N'86 681, 662 ings offered r made part same and ssimony..” ILaw Book vokne. The ents of the. . fawitness wating wath effective al briefs evidence a party's cd during fee are St are Ree Sr LGU Aa soa WITNESS NOTES ron muswnre saconue Cron ocreuoser ‘aceuteo __(Jronanen omnes Cron meh Nites aaa ry | Bever _|Riveras BUCWIAS. Béwcumy Zz ¥ = Di ei, 272178, Gn. te, Pats ty, Gp eg Bete Hype fate) vee ‘iba Ee Rey, Cf Semeataig wee, 1sare. 7/2) 78, i fe ttn AE. etn ee Figure 26. Witness Notes (Form 16-A) with Senator Diokno's handwnitien entries on a human rights case that he handled in Benguet during martial law. Diokno On Trial: Techniques and Ideals of the Trial Lawyer 51er I eel abn KE ft TE, ca eR pnt tc aint OP, eT Sith 1e~ Shen Figure 25-A. A page from the Trial Manual of Senator Diokno on Res Inter Alias Acta. 52 Diokno On Trial: Techniques and Ideals of the Trial Lawyer THE PRE Jose W. Ane covers th 1 ‘cs, tie 3 be 7 This evidence, discipline (see page to under: Atr Evidence Selection based on City (10- ‘have “Pro Wigs will also a formet So I presentz