Professional Documents
Culture Documents
(For the use of Fourth Year Law Students in Practice Court II)
By: Fernando P. Cabato
Retired Judge RTC Baguio-Benguet
Guest Lecturer, College of Law
Saint Louis University
PART I
Outline l
1. Preliminary Considerations
A..You are so near and not so far from the becoming a lawyer an advocate of the
law.
You are at the threshold of a new beginning. Very soon you will be awarded your
diploma for having successfully accomplished all the academic requirements for a
college degree, Bachelor of Laws. This will be followed by a grueling review for the
bar examinations, your passport, so to speak, to making your membership to the
Philippine Bar, after having been admitted to practice law by the Supreme Court and
having signed the Roll of Attorneys. But before all this, there are still sleepless nights
to contend with, more studying to do, the stress and pressure remain haunting you.
Aside from your other subjects, you have to go through this subject Practice
Court II to have a first feel and initial experience of litigation work.
B. An introduction to the art of advocacy
In this subject, Practice Court II, you will be exposed to the basic rudiments of
how to prepare and try a case. Thus, you go through the preparation of initiatory
pleadings, important motions, preparation of pre-trial briefs, go through the procedure
of pre-trial conference, trial work which will entail determination of the theory of the
case, preparation of a fact chart, trial plan, conducting direct examination, conducting
cross-examination, etc. This subject should not be taken for granted nor be ignored
because in a way it is part of your review of certain aspects of substantive law and
remedial law. I am aware you have many concerns to attend to and deal with. But at
the end of the day, when you shall begin your real trial work, you will realize the
importance of going through this subject. In the meanwhile, patience, perseverance
and preparation are the key words to achieve your dream to be a Louis Nizer in a
courtroom drama.
C. A birds eye view of trial work.
It has been said that trial work is an art. More than mere graduation from a law
school is needed to acquire it. No lawyer should undertake legal work for which he is
not thoroughly equipped. The practice of law is too important, too sacred, to be
approached in a hit and miss fashion. Almost every case is of vital concern to
someone. Decisions may be far reaching. The consequences of mistake are often
fatal.
A trial attorney worth his salt is motivated by these indispensable factors, namely,
he should be industrious and studious; he should
and with a deep sense of
responsibility; he must always adhere to the rule of law, he must think, act and behave
in accordance with the Code of Professional Responsibility, in his professional as
well as private life. Above all, he must be an authentic Christian. Remember, all those
who preceded you and passed under the portals of the College of law, SLU you were
trained within this framework of discipline. You are no exception.
D. Trial work or litigation entails the following:
I. First stage of trial work begins when you initially interview a client.
1. Early on, once you decide to represent a client, discuss about professional
fees.
Draw up a retainers contract to include acceptance fee, appearance fee,
retainers fee, expenses of litigation such as hiring a private investigator,
securing documents from different offices, etc., coverage of the legal work or
services which could only cover up to termination of trial and rendition of
judgment, no assurance clause, no short-cuts clause, in case of appeal another
contract may be entered into. Be reasonable and fair in fixing our fees. Your
responsibility to your client is made clear as well as the obligation of your
client is drawn. Your legal work begins
2. Gathering and mastery of facts:
witnesses
Critic - Why did I lose? Why did I win? What should be been done to
avoid having committed some errors? Could I have done better? What
lessons did I learn from this litigation? I what area did I perform well? In
what area did I not perform well? How do I rate my performance in
handling this case?
Apprise your client candidly/ discuss the chances of appeal/ settlement of
fees
Note: All this should form part of your trial plan.
(With the use of present computing facilities, you can store all this for
future reference)
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I appear for the plaintiff (for the Peitioner or for the People or State or
Government) your Honor or For the plaintiff ( for the Petitioner, or for the
People, State or Government), your Honor
or For the plaintiff (for the Petitioner or for the People or State or Government)
your Honor, in colloboration with Attorney ______ the principal counselor I
appear for the Plaintiff (for Petitioner) in todays hearing, your Honor.
Attorney-------------the principal counsel is indisposed or he is in mourning, his
-------- passed away --------. ( If the trial court asks the whereabouts of the
principal counsel, be candid and truthful in your replyexcept when it is too
personal, then give a believable excuse)
Note: For purposes of our class, please state your name.
When your case is called: Defendant or Oppositor or Defense, after the plaintiff,
or petitioner, the public prosecutor has entered his/her appearance.
For the defendant (oppositor, or defense) your Honor. Or For the
defendant (oppositor or defense) or For the defendant (oppositor or defense),
your Honor, in colloration with Attorney----------------------- the principal counsel
or I appear for the defendant (oppositor or defense) for todays hearing, your
Honor. Attorny----------the principal counse is could not come today. (If the trial
court asks the whereabouts of the principal counsel, be candid and truthful in your
reply except when it is too personal, then give a believable excuse)
Note: For purposes of our class, please state your name.
Note: The foregoing mode of entering or making your appearance applies in preconference and in trial proper. Be in the proper attire neat, clean, groomed, shined
shoes.
Note:
work done but it must always be reasonable, fair and conmensurate to legal services
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rendered. Remember, the law profession is to render service, first and foremost. Never
squeeze blood from a tulip.
II.Order of trial
Go over the Rules on Order of Trial
A.Civil Case
Rule 30, Revised Rules of Civil Procedure
B.Criminal Case
Rule 119, Revised Rules of Criminal Procedure
III. Marking of Exhibits
Plaintiff (civil and Criminal; petition/special civil action/special proceeding) Alphabet, A, B, C, etc.
Sub-marking A-l, A-2, etc. B-l, B-2, etc. C-1, C-2 etc.
Defendant(civil and Criminal/ oppositor/ respondent) Number, 1, 2, 3, 4, etc.
Sub-marking 1-a, 1-b, etc., 1-a. 2-b, 2-c. etc. 3-a. 3-b, 3-c, etc.
IV. Trial proper
(a) Some pointers in handling direct examination
1. The direct examination of a witness means the examination-in-chief of a witness.
A witness is called to the witness stand to testify on facts known to him personally
that is, on matter(s), which are the subject of inquiry. His testimony must be
relevant and material to the fact(s) sought to be established through his testimony.
2. The direct examination should build up the theory of the case. Hence, collateral,
extraneous, or immaterial questions should be avoided.
3. How the testimony is arranged, in what order shall the witnesses be presented
require skill, care and attention. I will call this a preparation as to the order of
proof.
A trial attorney should not enter into trial of a cause without a definite order of
proof. What to prove, which evidence to prove it, and how much evidence will
prove it all these should be determined before he goes to trial.
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4. Start with a strong witness and end up with a strong witness. Thus, plan before
hand the sequence of the witnesses such that the theory of the case or the story of
the client is systematically constructed or built like a house- chronologically
and in an orderly manner. Your aim is to present as clearly as possible the cause
of your client likened to a painter using different hues and shades to portray a
magnificent scene.
5. Except on preliminary matters, leading questions should be avoided. A leading
question is one that suggests to the witness the answer, which the examining
counsel wants, or, as its name indicates, one that leads the witness up to the
desired answers. Short and clear questions are ideal in conducting direct
examination.
For example: When did this take place? (You are asking for time, date,
and year)
Who were present at the time you mentioned? (You are asking the
persons who were there at the time, date and year)
Where is this place located or situated? (You are asking the
definite place)
Why were you there at such a place and time you have mentioned?
(You are asking the reason for you being present at the said date, time and
place)
What was it that you saw at said time and place? (You are asking
the surrounding circumstances of the event that you have seen or
observed)
How far or near were you at the scene that you witnessed? (You
are asking how reliable your observation was and how you used your
sense of sight and sense of hearing.)
Note: Three important facts must be established: (1) persons the parties
involved and witnesses present, if any; (2) date, time, place, when the
incident or event took place; (3) the facts and circumstances surrounding
the incident or event which you saw, observed, heard, and perceived with
your senses. As a good rule, premise your question with Who, When,
Where, What, Why, How.
Note: A trial lawyer should learn to formulate questions that are short but
perfectly proper in form, without a hint or suggestion, such that after the witness
shall have finished his direct examination, the story is build or constructed or
painted or portrayed his answers so vivid, moving, and factual.
Examples: (Criminal case)
Setting up (1) the fact what the eye witness saw; (1) the fact that accused
stabbed the victim (3) the fact that a bladed weapon was used by the accused in
inflicting injuries to the victim; (4) the fact that others witnessed the incident.
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a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
l)
8. It is unpardonable and presumptuous for a trial lawyer not to prepare for the direct
examination.
No trial lawyer can be successful in the highest sense of the term unless he
is a master of the difficult art of direct examination. It requires a great
combination of qualities, foremost is patience, coolness, courage and tact. Many
cases are won by direct proof than all other phases of the trial combined.
The art of direct examination is the technique of having a witness tell a
story in an interesting, natural and effective manner. Surely, a witness called to
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testify has a story to tell. But the witness cannot just tell his story the way he
dishes it out to his friends with all the embellishments and elaborations. A witness
can only tell his story in an effective, natural and interesting manner by his answer
to each question asked of him by the examining counsel. The art of propounding
the direct examination questions comes into play. The KEY IS THE
PREPARATION OF A FACT CHART.
A trial attorney should prepare question by question an outline of the
examination which is to be made of each of his witnsesses. Such a preparation
will lead to three results, namely, (1) it will make certain that every important fact
and issue in the case has a ready proof; (2) it will give the attorney experience in
the framing of questions so as to avoid confusing objections as to form which
mightbe made to them, if such questions are left to be formulated in the
excitement of the trial; (3) it will also enable the attorney to discover certain links
missing in his chain of proofs, which he may not be able to supply if he discvoers
fthem only during the trial.
The facts of the case, must be arranged in such a fashion that the proofs
present an orderly and mass development toward that strong point on which it is
hoped the case can be made to turn.
9. A witness should be candid to admit an error or mistake in his answer and ask that
he be allowed to correct his mistake or error. There is nothing wrong with this
because the witness will surely be perceived as a credible witness, one who has
not been coached or taught.
First impressions are of major consequence. The selection of the first item
of proof whether testimonial or documentary is, therefore, a decision of
importance. The first item in the outline of proof should be one of substantial
significance and through which the general outline of the whole case can be
developed and by which the story sought to be presented can be started with a
bang. Properly done, this will give the trial court a general idea of the merits of
the trial advocates cause and will enable it to follow more readily the subsequent
matters of evidence.
10. A witness should answer the question asked him/her directly, clearly, concisely.
(b) Matters on which a witness may be cross-examined.
1. A cross examiner is allowed to ask leading questions; he is not allowed to
ask misleading questions.
2. A cross-examiner should never badger a witness or argue with the witness;
3. A cross-examiner must have a purpose in asking cross-questions which
could be one or some of the following purposes or objectives.
a) To test the knowledge of the witness;
b) To test the competency of the witness to testify
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g) Review, study all documents marked in evidence during the pretrial/examine and study the object evidence marked in evidence during
the pre-trial
Note: At the end of each trial day, indicate in your trial plan (a) what actually
took place during the trial (b) the gist of the testimony of witness who testified;
whether his direct examination was finished or not; the matters covered by the
cross-examination, finished or not; documents introduced in evidence; (c) matters
that should have been taken; (d) things to do for the next hearing (d) secure
transcript of the stengraphic notes and review it thoroughly for mistakes
committed or not correctly transcribed. (e) other matters relevant and material.
Note: A good book to read is The Art of Cross-examination by Francis Wellman
End of Part II
(FPC 3)
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