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CHAPTER 5

GRASSROOTS PRACTICE COURT

A. BASIC ROLE OF A TRIAL LAWYER


The basic function of the lawyer is to see to it that he wins his case, not by fair or foul means, but to
convince the court of the validity of his client’s cause.

“Since your function is to persuade the court and since the court can be persuaded basically only by
facts that are in record, facts that are admitted, facts of which the court may take judicial notice, and
facts which are proved, your first task as a trial lawyer is to present all the evidence that is necessary to
comply with all the legal requisites of your cause of action or your defense that will comply with the
theory aspect of trial work.” – Atty. Jose W. Diokno (underscoring supplied)

A. OFFER OF EVIDENCE – OR PRESENTATION OF EVIDENCE

 Starts with the direct examination of witness, otherwise called examination in chief.
 State the purpose of the offer or the purpose for which the evidence is presented, for which the
witness is going to testify.
 The case is deemed submitted for decision the moment the party rests his case.
 The Constitution and the Rules of Court, make it mandatory for the judge to dispose of the case
which is deemed submitted for decision, not exceeding the period of ninety (90) days counted for the date
the parties are notified in open court that the case is deemed submitted for decision.
1. INTERVIEW OF CLIENT AND WITNESSES

The matter of preparing for direct examination begins with the initial interview with the client.

In order to get all the facts and imagine what really happened the following are the correct steps to
look at the problem:
a. Place yourself in the client’s shoes

b. Put yourself in your own shoes

c. Look at it from the way a judge might look at it.

In the matter of taking statements, prepare a statement and make deliberate mistakes then let the
witness correct the mistakes. This is one of the oldest techniques there are for establishing the
authenticity and voluntariness of a statement.

2. CARDINAL RULES ON DIRECT EXAMINATION

Section 5, RULE 132, Rules of Court


Section 5. Direct Examination. Direct examination is the examination-in-chief of a witness by the
party presenting him on the facts relevant to the issue.

A. Procedural Requirement
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Offer of Testimony- the proponent shall state the substance of the intended testimony of the wit-
ness ( an outline of the major points) and the purpose of said testimony ( what the proponent
intends to prove by said testimony)

Importance of the Offer:


(i) The direct examination may be objected to by the opponent;
(ii) Matters not included in the offer may not be allowed to be testified on upon proper objection;
and
(iii) To shorten the proceedings as the opponent may admit or stipulate on the matters to be testified
on.

In cases under the Rules on Summary Procedure, the sworn statement of the witness must have
been submitted to the court before hand

B. Importance of the Direct Examination

This is the only opportunity for the proponent to elicit from the witness all the facts which are
important and favorable to him. The witness should be considered as a sponge heavy with facts.
By the time the direct examination is over, all favorable facts should have been squeezed from the
witness. The examination must be clear, forceful, comprehensive, and must efficiently present the
facts of the case.

Guidelines to Conduct an Effective Direct Examination:

a). KEEP IT SIMPLE.


Avoid these two pitfalls (i) too little time on critical points and (ii) too much time on unimportant
points.

Make your questions brief, simple, follow the same order that you prepared and when it comes to
identifying documents do it in the most natural way.

b). ORGANIZE LOGICALLY. Determine the key points and organize them in a logical order. If
possible resort to a chronological presentation of testimony.

c). INTRODUCE THE WITNESS AND DEVELOP HIS BACKGROUND

d). USE PRELIMINARY QUESTIONS WHICH ARE INTRODUCTORY, TRANSITION OR


ORIENTING QUESTIONS

e). ELICIT SCENE DESCRIPTION

f). ELICIT GENERAL FLOWING DESCRIPTION. Let the witness paint a picture. Avoid exces-
sive detail.

g). USE PACE IN DESCRIBING ACTION. Control the speed of the examination by eliciting tes-
timony in small segments at the most advantageous rate. SLOW DOWN THE ACTION.

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h). USE SIMPLE LANGUAGE. Choose simple words and phrases. Word choice affects answers.
Avoid jargons, idioms and technical words. WHAT MATTERS AND WHAT WILL BE REMEM-
BERED IS NOT HOW BEAUTIFUL AND IMPRESSIVE THE LAWYER PHRASED HIS
QUESTIONS BUT WHAT THE WITNESS NARRATED.

i). HAVE THE WITNESS EXPLAIN.

j). USE NONLEADING OPEN-ENDED QUESTIONS

k). USE EXHIBITS TO HIGHLIGH AND SUMMARIZE


Try to present your exhibits. Don’t make a big production of your exhibits unless they are really
vital. Try to present them just as part of the story so that your witness will feel at ease because it's
normal human way of doing things.

l). PRACTICE WITH THE WITNESS

3. LAYING THE PREDICATE / LAY A FOUNDATION (ORDINARY CONVERSATION)

To provide to the judge the qualification of a witness (particularly an expert witness) or a document
tor other piece of evidence which assures the court of the talent and experience of a witness or the
authenticity of the document or article.

Example: a medical report cannot be introduced unless the physician who wrote it testifies that he
wrote it, or a photograph must be authenticated by the photographer or by testimony that it truly re-
flects a particular place or event. An expert witness is qualified by testimony as to experience and
training.

C. Grass Roots Plea-Bargaining


In both criminal and civil cases, the use of effective negotiation techniques as useful instrument of litigation
is important. Without which, a compromise agreement or plea bargaining is difficult to achieve.
Extralegal but not illegal or immoral weapons and a lot of public relations are also indispensable. These
extralegal remedies are those spontaneous and intuitive techniques that are not found in the books, neither
from the statutes and jurisprudence, nor from hours of study inside the classroom and seminar workshops,
but those spur of the moment strategies that come out of the blues in handy formula in the rough and tumble
of courtroom practice.

1. The following are some of the charges that may be subject of plea bargaining:
1. Murder to Homicide
2. Frustrated Murder to Attempted Murder or Attempted Homicide to Serious or Less Serious Physi-
cal injuries
3. Frustrated Homicide to Attempted Homicide or Serious or Less Serious Physical injuries
4. Attempted Homicide to Serious or Less Serious Physical injuries
5. Serious Physical Injuries to Less Serious Physical Injuries
2. Consent of the Fiscal and offended party required in plea of guilty to lesser offense
The best time to start the Plea-bargaining negotiation is during the receipt of notice of the arraignment
from the court and the date of the arraignment, so as to prevent surprises and allow more time for the
parties to study each other’s reaction, especially the public prosecutor and the offended party whose
consent is required in a plea of guilty to a lesser offense.

3. When consent of the Fiscal not required

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Where the accused had decided to plead guilty to the crime as charged in the Information or complaint,
the prior consent of the public prosecutor and the offended party is not required. However, the court is
mandated to conduct a searching inquiry to the voluntariness and comprehension of the consequences
of his plea should the accused plead guilty to a capital offense and should require the prosecution to
prove the guilt beyond reasonable doubt, and to determine the accused’s degree of culpability. In case
the accused had entered an improvident plea of guilty to a capital offense, he may be allowed by the
court to withdraw his guilty plea and substitute the same with a plea of not guilty at any time before the
judgment of conviction becomes final.

4. No particular form of bargaining agreement is prescribed


It is the highest form of gentleman’s agreement sealed with trust and faith by the lawyer’s oath and
ratified and enforced by palabra de honor, one of its kind that is recognized only in the legal profession.

It is an unwritten norm of procedure with the binding force of law, once the accused announced his
intention in open court to plead guilty to a lesser offense by a formal motion with the consent of the
public prosecutor and the offended party with the approval of the court and entered into the record of
the proceedings, has a binding effect upon the parties and no parties can renege on his commitment on
pains of being held in contempt of court except upon showing of an improvident plea of guilty.

5. When to invoke Plea of incomplete self- defense


This is predicated on the assumption can prove at least two elements of complete self-defense, namely:

(a) that unlawful aggression did not come from the accused
(b) that he is not guilty of sufficient provocation
© that there is reasonable necessity of the means employed to repel or prevent the aggression.

This strategy may be availed of by a skillful trial lawyer when all the odds are overwhelming against
his client-accused against whom the evidence of guilt for a charge of a capital offense appears to be
strong.

6. Reversed Procedure in Plea of Incomplete Self-defense


The accused is required is required to present his evidence first to prove at least two elements of com-
plete self-defense and the existence of mitigating circumstances. This will be followed by the presen-
tation of rebuttal evidence by the prosecution which may be controverted by a surrebuttal evidence by
the defense and further additional evidence by the prosecution at the discretion of the court.

Hence, under the law if the accused makes a conditional plea of guilty or makes statements that qualifies
his guilty plea by giving reasons for committing the act complained of or if he refuses to plead, a plea
of not guilty shall be entered. Thereafter the court shall order the accused to present evidence to prove
the circumstances that justify or exempt him from total punishment for his crime.

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