Trial Tips:

Avoid disaster: review the information before going to trial

Have you checked the information in your case lately? Information as inindictment, that is.

That should seem routine. But a case we defended - purporting to be a violation of the Trust
Receipts Law - was dismissed on demurrer because the prosecution did not see the need to
prove criminal intent, apparently misapprehending the crime actually charged in the
information. The prosecution went to trial thinking that since the charge was for violation of
a special law, intent to commit the crime is not an element required for conviction.

In our motion to dimiss, we argued that, while the information was indeed captioned "For
Violation of the Trust Receipts Law", the allegations in the information did not make out a
violation of that law - it actually charged estafa, which is a violation of the Revised Penal
Code, a general law. Therefore, criminal intent is an essential element which must be
proved.

In a death penalty case which we handled pro bono, the death sentence was reduced to
reclusion perpetua when it was on automatic review by the Supreme Court, the Court noting
that since the information did not allege that the crime charged is qualified by the
relationship of the victim with the convicted rapist (the victim was a niece of the accused),
the crime can't come under the law on heinous crimes. The information did not allege the
relationship as a qualifying circumstance, but was only proven during the trial.

Look at the information carefully; if there's anything in it which needs to be changed or

added, it should ideally be done before the accused pleads on arraignment. Doing so after
may prove difficult and may only delay the prosecution.

Unconsciously unaware of evidence

Do you know how to ride a bike? If you do, do you think about it? You should not. You are,
as they say in psychology, unconsciously unaware of your skill.

But we did not start out that way. Most probably, we fell right after our first mount. Then,
after more practice, we learned to balance. But we still swayed from side to side, without
much control, and still fell, although it was becoming less and less. Through all this, we
were focused on balancing ourselves, trying to control the bike, not thinking of anything
else but to stay mounted. We are "consciously aware" of biking.

Then, with more practice, we progressed to riding without thinking about it: we enjoy the
scenery while riding, we listen to music from our ipod, we can even think of work while
biking. This is when we enjoy biking and even look forward to it.

So it is with the rules of evidence. We should learn them, practice them, learn some more
and still practice them. The goal is to be unconsciously unaware of the rules that it becomes
almost second nature to us, instinctive even. With evidentiary battles occuring almost
anytime while a case is on trial, we should have the rules in our fingertips, easily accessible
when required, to be drawn swiftly when needed to shoot the adversary dead.

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10 things to avoid when you're a trial lawyer part 1

1. Writtten out questions and answers for the direct examination. The lawyer has the
script with him to refer to while examining the witness. What about the witness?
Does he really expect the witness to memorize the script? Or even more basic, does
he really expect that the examination will proceed according to the script? If the
judge and the other lawyer are asleep (which may not be far-fetched because of the
canned sound that a scripted examination is trademarked for), maybe. But
otherwise, there are just too many variables in trial proceedings that it is just
impossible to encapsulate the direct exam in a document labeled "Q&A". Objections
are overruled or sustained, evidentiary battles erupt without warning, stipulations
entered, etc.

2. Too many objections on insignificant matters. "Objection, Your Honor, leading

question." Barely has the lawyer sat back when he springs up again for another
objection, "No basis, Your Honor." And then another: "Misleading, Your Honor." Is
he afraid of the witness or what the witness will say? Does he not have have
confidence in the righteousness of his case? We do not win the case by how many
sustained objections are made. On the contrary, too many objections, even if
sustained, if made on inconsequential matters, would only paint us as an
obstructionist, or worse, somebody who has something to hide.

3. Asking obviously objectionable questions, the flipside of #2 above. Nothing distracts

more than a question asked only to be rephrased, or even abandoned altogether,
because of an objection. It shows either incompetence or incompetence.

4. Making thoughtless objections that are frequently overruled, a corollary of #2. The
only thing worse than making too many objections is making too
many overruled objections. Veteran lawyers seldom object; and when they do, they
get sustained. This is actually an indirect consequence of making too many
objections. Because the judge got used to the lawyer's objections on even
unimportant matters, overruling the objections became second nature to him.

5. Unorganized exhibits. "I am showing to you Exhibit `A' which is ah … uh … can I

have a moment, Your Honor, while I look for it in my files?" The judge may be more
tolerant of this lawyer the first time. But on the second or third? He's already
forming his opinion as to whether this lawyer's seeming incompetence is worth his
time. In one case that was being tried ahead of mine, the judge was unable to
contain his irritation that he told his clerk tersely, "let's call the other cases on the
calendar while Attorney So-and-So digs for his documents."

6. Improper manifestations. Lawyers ask questions; witnesses answers. That's the

rule. Many young lawyers, however, seem to have this the other way around. Once
I am on cross-examination. I show the witness a document, then ask if he
recognizes it. The opposing lawyer grabs the document from the witness, stands up
and says: "May I manifest, Your Honor, that this document was not under the
letterhead of x company, and the signature appearing on it was not that of the
witness." What is that? The witness is just shown a document and the question put
is quite clear. If he does not recognize it, then he can say so. It was him who should
answer, not the lawyer. So, I point out to the court that that's an improper
manifestation, and the court directs the witness to answer. Guess what the witness
says in reply? Right. He says, "I don't recognize it. It is not in the letterhead of our

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 company and it does not have my signature." When the lawyer makes at least 3
more manifestations of the same nature, I had to ask the court to ask the lawyer if
he wants to take the stand so I can cross-examine him.

7. Forgetting the file or bringing the wrong file. We understand that lawyers are busy.
But this is not an excuse to ask for a cancellation of the trial date because he forgot
to bring the file, or worse, he brought the wrong file.

8. Forgetting his calendar. Calendars are as to lawyers as shopping lists are as to

mommies. Calendars and organizers are so indispensable to the life of trial lawyers
that you'd think they should be sewn to their sides. Yet, you'd often encounter
lawyers whose agreement to a trial date comes with the manifestation that it be
made "just tentative, Your Honor, because I will have to consult my calendar."

9. Coming to court unprepared then asking for postponement. One judge in Antipolo
City calls them the "the very motional attorneys" because of their motions to cancel.

10. Not knowing where the court is. This reminds us of a priest who, new to the town,
asks a little boy where the church is located. The boy replies, "Father, if you do not
know where the church is, how would you know where heaven is?" There is a
pamphlet (actually, a book) called the "Court Locator". Call the court and ask how to
get there. Don't be like the young lawyer I know, who regretfully related to me how
the client berated him. He said he was running late for the hearing so he called the
client to ask in which floor of the building was the court he was due. When I asked
him why, of all people, did he have to call the client, he told me he called the client
because she sent him a text message that she was already in court, and waiting for
him. I looked at him incredulously. Not only did the client get to court ahead of her
lawyer, her lawyer also does not know where the court is. And worse, her lawyer
even had the unprofessionalism to ask her, the client, where it was.

Pinning down a witness

In many criminal cases, the star witnesses are not always the complainant or the
defendant. These are strangers to the parties but, by accident or otherwise, are there at the
scene when the crime happened.

Through time, however, these witnesses either forget the facts, become indifferent, or even
grow hostile. When meeting initially with these witnesses, we usually suggest that the
meeting be done at our office. After our interview, we give him a pen and paper and ask
him to write down in his own words what he just narrated to us. Or, if the witness is too
lazy to do so, we ask a secretary to type it up in affidavit form. Then we ask the witness to
review it and if he finds any inconsistency, inaccuracy or even falsehood, to write down, on
the same paper he reviewed, his corrections. Later, if he says he did not understand the
affidavit when he signed it, his own written corrections will say otherwise.

Then, we make him swear to the affidavit and we notarize it. In other words, we cement the
testimony. That way, the witness will have to commit perjury to deny later what he told us
in the interview.

Be prudent about witnesses who are strangers to the parties. They are the best witnesses -
because they are disinterested and therefore most credible - but they are also the most

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difficult to handle, especially when the case had already dragged on for sometime, and his
interest on its outcome had waned.

Plain and simple

I've heard once that the capacity of the human mind to complicate things knows no bounds.
More so that of lawyers. How many times have we heard a witness asked "when was the
contract of lease executed between you and the defendant?" (Who was executed by what is
just what the witness may be thinking here.) Instead, why don't we just ask, "when did you
and Mr. X sign the lease contract?"

Or, "what was the consideration for you when you signed the lease contract", instead of
"why did you sign the lease contract?" Or, "I am showing you this document. Please tell us
what relationship does this document have to the document you mentioned you signed with
the defendant", instead of just "I am showing you this document. Was that the document
that you and Mr. X signed?" And what's the deal with referring to the defendant as
"defendant" anyway, instead of just referring to him or her by name, so there is no
confusion?

For some reason, we fear that we become less of a lawyer when we don't use legalese on
the job. But the case is not about us; it's about the client and his story. And, using legales
not only makes the story-telling boring (which is never a good thing), it also actually erodes
the witness' credibility - it makes his testimony sound stilted and memorized.

If there is danger of losing your witness in the jungle of your legalese questions, just
imagine what they can do to your cross-examination. They just might turn your cross from
one of question and answer to a definition and explanation game. Instead of answering your
questions, the witness might ask you what you meant by your question, or ask you to
define your terms. And worse, there are even lawyers asking the court to direct the witness
to answer these kinds of questions. What does the judge say? "I can't direct the witness to
answer a question that everyone here - except maybe only you - does not understand."

"Best Evidence is the Document"

I don't really understand what the objection "best evidence is the document" means. I
usually hear it during direct examination when the witness is asked to quote parts of a
document she has identified, or is asked what certain statements in the document means.
And what's more, when this objection is made, no further explanation is required by the
judge when sustaining it. In fact, sometimes the judge himself prods the lawyer to ask
another question because his earlier question is improper, "the best evidence being the
document which the witness had already identified."

Is the objecting lawyer telling us that the witness cannot explain what the document says
because she may vary what the statements in the document literally meant? If so, the
objection should be that "it will violate the parol evidence rule" rather than the best
evidence rule. The best evidence rule refers to the original of a document: it says that the
original must be presented because a mere copy may mislead the court. In other words, the
best evidence rule says that the evidence presented to the court must be what it purports to
be; a secondary evidence, such as a photocopy, will not do the trick. It's not as reliable
simply because it's not the "best evidence." The best evidence rule therefore has nothing to

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do with the witness reciting what the document says on its face or even interpreting them,
as long as his competence to do so is shown beforehand.

Sometimes, this kind of objection is also phrased this way: "objection; the document will
speak for itself." By this, perhaps what the lawyer means is that the witness should not be
permitted to so testify because whatever she says might just mislead the court since the
best evidence of that fact is already in the document. But this is the same dog with a
different collar; it's still invoking the parol evidence rule.

In reality, can a document really speak for itself? If it does, what's the need for
identification and authentication? The point perhaps is that, if what the witness will read or
even interpret is in fact already in the document, then there should be no additional harm in
having him say his piece about the document - it's already there anyway.

Leading questions erode credibility

The objection "Leading question, You Honor" is perhaps the most frequent objection we
either make or hear during trials, supposedly because of fear that the witness's "Yes" or
"No" to this type of question will enter the record and thus hurt us.

But so what? Testimony may be on record, but this does not mean that the court will
believe it. In fact, the question is, will the court believe a testimony that was mostly drawn
out from the witness by leading questions?

Consider the purpose of the rule when it disallows leading questions. It is disallowed
because of the danger that the testimony of the lawyer will be substituted with that of his
witness; the witness's words are reduced to an echo, the witness mechanically saying what
the examining lawyer is puttting into his mouth. We suggest that, analyzing this rule, it is
actually an implicit directive to the court or fact-finder to disbelieve, or at the very least, to
be wary of, the answer of the witness.

What happens if we do not object to a truly leading question? It gets into the record, yes,
but will it be believed? That's another story. What happens if we object? The examining
lawyer rephrases his question, the witness answers the non-leading question, and it
becomes more credible, further burying us.

We suggest that perhaps the rule disallowing a leading question is more the lookout of the
examining lawyer than of the opposing counsel. It is more aimed at the examining lawyer:
ask leading questions at your peril; do not ask leading questions so that your direct
examination is more credible.

Does the judge know what you and your witness are talking about?

In one "episode" during the nationally televised impeachment trial of Erap, a senator-judge
-- as far as I can recall, it was Sen. Raul Roco -- suggested that the examining counsel
distribute copies of the documents he was referring to during the direct examination of a
witness. Sen. Raul Roco complained that he was having difficulty following the testimony of
the witness because he did not have a copy of the document that the lawyer and the
witness were constantly referring to in their questions and answers.
You will observe that this also happens in regular trials.

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So, when you are either on direct or cross, and you're using a document that you want the
witness to refer to when answering, prepare at least 4 copies of the document: one on
which you scribble your questions (thus, doubling as your notes); two, the original to
confront the witness with; three, the photocopy that you will mark as evidence after
comparison with the orginal; and the last copy to give to the judge as you go along the
testimony of the witness.

When you give the judge his copy though, remember that it must be what it purports to be.
In other words, you need to authenticate it first. So, before giving it to the judge (and of
course, before starting out with the meat of the direct or cross exam), have the witness
identify it first and the opposing lawyer compare it with the original. That way, the judge is
assured that what he's holding is a faithful reproduction of the original of the document.

Note that, during a trial, your foremost audience is the judge; it's your job to make it easy
for him, as the fact-finder, to find the facts, especially those that are favorable to your case.

Be picturesque

Before language was invented, psychologists say that humans think in and relay thoughts
by pictures. We simply remember better when we see pictures and not just hear words; in
fact, going further, educators say that learning about something (such as remembering a
testimony in court) will be much faster when the learner (such as the judge) is made to use
more of his senses during the process, such as sight, smell or touch, rather than just
making him use his sense of hearing.

Have you watched and listened to a witness during a trial and not seem to understand the
testimony because you cannot "see" the scene being described? Aside from losing the
message, the testimony is also so boring that you wonder whether there is a rule
somewhere that examinations should as much as possible put the judge to sleep.

If you are examining an eye-witness to a vehicular mishap for instance, and you're
prosecuting, you'd want to convey recklessness, overspeeding, and irresponsibility on the
road. You'll not use questions like, "What happened? (Answer: the car hit a pedestrian);
What happened to the pedestrian? (Answer: he fell); What did you do? (Answer: Nothing);
and then, what happened after that?"

You'd want to use questions that picture fast-paced action: How fast was the car? Was it
blowing its horn? Describe the sound of the horn. What was your reaction when you heard
the horn? Why did the horn catch your attention? Was the traffic slow or fast? Short, crisp
and cadence-like questions, designed to be answered in equally short and crisp responses
will be effective in conveying this scene.

The more you use words that "picture", the more the examination becomes interesting, the
more it will become understandble, and more important, the more it will become
memorable to the judge. And, all these is good for your case.

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More on Best Evidence

Sometimes we hear the objection "best evidence is the document" during cross-
examination. Is this really proper?
One time I was watching a lawyer who was cross-examining a witness, apparently focusing
on the witness' affidavit that was submitted to the prosecutor during the preliminary
investigation. The opposing lawyer raised this objection and the judge "sustained" him.

I was thinking to myself, isn't the cross-examiner entitled to ask questions on the affidavit
because, one, it's an admission which can be used against the witness; and two, it wasn't
altogether "very nice" of the prosecution to have the witness authenticate an affidavit then
object to being cross-examined about it?

More basic, the objection may not be applicable: "best evidence rule" refers to the original
of the document, which must be presented because the photocopy (or any other
reproduction) has the potential of misleading the court and the other lawyer. Perhaps, what
is being raised as an objection is the "parol evidence rule"; but this is likewise not applicable
because one, the document is an affidavit, not a contract. Second, it was the witness who
authored the affidavit, and the defense is not a party to it. And finally, I don't think that the
objection "best evidence" or "parol evidence" is available at all as in a cross-examination
because the cross-examiner is precisely not introducing the evidence but is in fact, testing
its evidentiary weight.

What do you think?

Effective proposals for stipulation of facts, Part 1

Why is "stipulation of facts" becoming a useless exercise during preliminary conferences? I

went through a preliminary conference last week and virtually got no stipulation from the
other side. In fact, when I lamented the lack of cooperation from the other lawyers, I was
doubly disappointed when one of them said that maybe it would speed things along if we
just state in the minutes that the parties admit only those facts stated in their respective
pleadings. Doesn't that defeat the purpose of the exercise?

Indeed, most lawyers are indifferent to stipulations of facts (I found this reaction to be
equally true to the modes of discovery despite the Supreme Court instructing trial judges to
encourage their use among lawyers appearing in their courts). I would venture that this is
due to lack of appreciation of the benefits of stipulation.

In a bouncing checks case, for instance, where receipt by the accused of the demand letter
is now virtually an indispensable element of the crime, just imagine if you are able to get a
stipulation of personal receipt by the accused: that's lifting a heavy (if not the heaviest)
load off of your shoulders! And, if the accused also admits that the checks were his, and
that they bounced, well, you're almost done. And that's just during the pre-trial stage!

Or, even if we're aware and do appreciate the benefits of stipulation, we don't translate it to
action by coming to the proceedings prepared (most of us just read through the proposals
for stipulation enumerated in our pre-trial briefs). For instance, how can we commit to a
stipulation if we are not familiar with the documents, or even facts, of the case? I suspect
that we even suffer paranoia during these times. When confronted with a proposal, we know
how it will affect our case because the facts proposed are sometimes so obvious that there

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should be no reason not to stipulate on it. However, we instinctively say to ourselves, what
if it is used against my case later on? Thus, we conclude that it is better to just deny it and
let the other lawyer prove it during trial.
What we probably don't realize is that an otherwise prejudicial fact somewhat loses its
impact if, rather than being testified to by a witness, it is instead stipulated on.

Of course, the judge must cooperate as well. She should be able to see through a lawyer's
antics, whether the lawyer is responding to the proposals in good faith, is dragging his foot,
or is just being plain obstinate. And she must act accordingly, chastising him if necessary.

Here's something to ponder. A judge once told me that she's impressed with a lawyer who
is cooperative during stipulations, and is willing to enter into it even if the facts may appear
to hurt him. It shows that the lawyer knows his case, he knows how to spot the issues, and
is confident of the righteousness of his cause. And it will never hurt to earn the good graces
of your judge.

Effective proposals for stipulation of facts, Part 2

Here are some thoughts you may find useful in effectively preparing for and making
proposals during preliminary or pre-trial conference:

1. Read the pleadings carefully: the complaint, answer, pre-trial brief, and everything else.
This should be pretty obvious but, at one time or the other, we're guilty of grabbing the
folder just the night before the conference, or scanning the files just hours before, or worse,
not reading them at all, plunging into the conference thinking everything is just right up
there in our head, ready to be retrieved if needed.

Before this, however, you should have already listed down the elements of your case, and
the facts needed to prove each element. Then, get the facts admitted by the pleadings.
Chances are that most of the facts you would've had to prove are already admitted and
there's just a few left that are truly disputed.

2. Analyze the facts you listed as admitted by the pleadings. Most of the time, the
allegations in the answer or complaint are generalized statements, since the rules only
require the parties to state the ultimate facts supporting their case. But, most of the time
too, there are facts that can be implied from the admissions in the pleadings, which cannot
be disputed by the other side without appearing stubborn.

For instance, an admission in the pleadings that the promissory notes are forms that came
from the bank can give way to an admission that your client did not have any participation
in the actual preparation of the notes other than signing them.

3. Read the annexes carefully as well. The documents attached to the pleadings may be a
treasure trove of possible admissions that can be extremely helpful to your case. And, as in
no. 2 above, this covers not only those that are written in the documents themselves but
those that can be implied from them as well.

For instance, a provision in the contract that interest charges shall be based upon prevailing
rates of interest at the time the payments are due may give way to an admission that the
prevailing interest rate at the time was 12%. This will limit the extent of your client's
liability, if the court do find him liable later on.

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Tips 4 and 5 will deal with phrasing the proposals themselves and will be covered next time.

Effective proposals for stipulation of facts, Part 3

More on making effective proposals for stipulation:

3. Limit the proposals to facts. This should be quite obvious because the proceedings is called "stipulation
of facts" not "stipulation of arguments". Yet, it is not rare to still encounter a proposal such as this: will
the plaintiff admit that he was negligent in crossing a street without a pedestrian lane?

Obviously, whether an act is negligent or not is a conclusion of fact, one that is for the court to resolve; it
is properly an argument, not a fact to be proved. If it is an argument, it will surely meet denial by the
other side.

The lawyer, however, may consider revising her proposal by limiting it to the fact that the plaintiff
crossed the street. Then, she can follow up with another proposal that there was no pedestrian lane in
that part of the street. Even if one is denied, the other may possibly be admitted.

4. Limit the proposal to one fact at a time. Much like in cross-examination where we are counseled to ask
one fact at a time, so it is with proposals. If we compound the proposal, the other side can make a
blanket denial; had we broken the proposal down, one of the facts may be admitted.

For instance, this proposal: will the plaintiff admit that the contract of lease was terminated because the
rents were not paid?

This is obviously a proposal for 2 facts: one, the fact of termination, and two, the fact that the reason for
the termination is that the rents were not paid. If the termination of the contract is already a given, then
this proposal may be good since then, what we presumably are getting to is the reason for the
termination. But even then, this proposal can still be improved; as it is, while the other side may concede
that the rents were not being paid, he may resist the implication that this was the cause for the
termination of the contract.

We can propose two facts for admission: will the plaintiff admit that the lease contract was terminated?
Then, will the plaintiff admit that the rents for January and February 2008 had not been paid?

5. Make the proposals in an affirmative tone. In other words, avoid proposals phrased in the negative:
they are ambiguous, tend to confuse and may just automatically draw a denial.

To avoid confusion, craft your proposals in an affirmative way.

For instance, "will the plaintiff admit that he did not sign the contract" will be ambiguous if it is answered
with a simple "denied" or "admitted". If denied, what the plaintiff is saying is that he admits signing the
document. The denial to me is actually a yes to the contract. On the other hand, if he admits, he says
"yes, he did not sign the document" which is to me, actually a denial of the contract.

To make things simple, proposals must be in the affirmative. If we want the other party to say yes, the
contract existed, or no, the contract did not exist, we simply ask, will the defendant admit that the
contract was signed by him?

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Overcoming the "leading objection"

"Objection, leading!" This is perhaps the most oft-repeated objection of all during direct
examination. While most lawyers (and judges) gauge if a question leads or not by the
standard "if it is answerable by yes or no, then it is leading," the rule-book definition of a
leading question, however, is that it is a question which suggests the answer that the
questioner desires.

Of course, one way of avoiding this objection is not to ask a leading question at all.
However, this may not be practical; in fact, it is not even advisable. There will always be
occasions when you need to make your questions pointed and unequivocal to get maximum
effect, or even just to avoid confusing your witness. This is why I noticed that seasoned trial
lawyers lead one time or another.

For instance, to emphasize a scene, you may have to use short and pointed questions to
make it more vivid, such as when you want the witness to describe the scene of a robbery
he witnessed while it was in progress. You'd want to convey fast-paced, heart-pounding
action. Open-ended questions with long-winded answers simply will not do the trick; on the
contrary, they'll just lose the impact that you'd have wanted. You want short questions; and
you want equally short and crisp answers, moving the testimony forward in a fast cadence.
You also may want to "lead" to dispel any probable "unresponsive" answers - those answers
that you do not really intend - from your witness; otherwise, you may have to repeat your
question to get what you want, and this just distracts the judge from the testimony.

Consider the question "describe the door when you arrived at the apartment". While you
may have simply wanted your witness to say that the door was already open when he
arrived, he may get confused and start describing the door as "wooden, painted white, with
brass knobs."

One way of beating this objection is to watch your tone: be conscious of it. It cannot be
described here accurately, but your tone of voice when you ask the question alerts the
judge and other lawyer of the nature of the question. For instance, I once asked the witness
on direct, "what were you doing at that house?" The witness answered, "we were there to
fetch our friend on our way to the party." Then I followed up, in a matter-of-fact tone of
voice, "so, you went by your friend's house first before you went to the party?" This last
question could be objected to as leading, but because of the tone of the voice, it slipped by
without the other lawyer noticing it.

My next question was, "At what point did you take your first drink of beer that night?"
Answer: "when we were already at the party." And then I asked, again in a matter-of-fact
tone, "so, you were not yet drunk before you went to the party?" Again, this last question
could have been objected to as leading were it for the tone of voice. Make the tone sound
like you are just following up the answer with a question.

Another way of overcoming this objection is to give the witness choices, so that it will not
appear that you are suggesting the answer to him.

If you want the witness to say that he was still sober when he arrived at the party, and it
was only after that he got drunk, you'd have to go a round-about way of extracting these

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answers (unless of course, you and him have already memorized a script along these lines):

Q: Upon arriving at the party, describe your state of mind. or,

Q: How were you feeling when you arrived at the party?

With these kinds of questions, who knows how the witness will answer?

The better way is to suggest it to the witness without appearing to do so. Consider:

Q: When you arrived at the party, were you drunk or still sober? or,
Q: When you left the party, were you still able to walk, or did somebody have to carry you
out?

In time, with enough practice, you would not even notice anymore that your direct
examinations did not draw a single "objection, Your Honor, leading".

Mistaken action

I once inherited a case for an aunt of mine in the province. She and my uncle were sued for
"annulment of a deed of sale" over the lot on which their conjugal home was built.

When it was passed on to me, the case was already lost - in fact it was already for
execution, my aunt's lawyer not having filed an appeal. The lawyer for the plaintiff had
earlier filed a motion for execution asking that the court order my aunt's family to vacate
the lot and the house. The judge actually granted the motion, and the sheriff served the
notice on my aunt.

However, it was apparent that there was nothing in the decision which says anything about
the plaintiff being entitled to the ownership, much less possession of the house and lot. It
did not say that my aunt have to vacate the property. All it said was that the deed of
absolute sale was null and void.

I filed a motion for reconsideration (of the order granting the execution) precisely on that
ground. And, at the hearing, I also pointed out that, in fact, ownership may have already
been with my aunt because of prescription. Before the case was filed, my aunt was already
in the property for more than 10 years, and prescription in good faith (because of the
colorable title that the deed of sale gave) may have already set in.

I was thinking how a mistake - which could have been easily prevented by reasonable
foresight - cost the plaintiff. He won in paper only. In reality, he gained nothing. Why ask
for annulment of the conveyance and not ask for reconveyance (of ownership and
possession)?

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Preparing witnesses 1: testimony to be in most persuasive form

Witnesses must be prepared for direct examination. "Preparing witnesses" does not
mean coaching him on his testimony. On the contrary, the witness should always be
instructed to tell the truth; preparing means doing our duty as lawyers to present the
witness’ testimony in the best and most persuasive light possible.

We suggest that, even before the initial conference with the witness, the lawyer
should've already asked him to write down everything that he knows about the case. In
other words, he should write down his story. Sure, the lawyer himself can do this by taking
notes during the interview, but there are numerous benefits in asking the witness to do this
himself:

First, the witness knows the facts that he will testify to more than the lawyer does or
ever will. Asking the witness to write it down minimizes leaving out important facts or
events. Of course, before the witness starts to write, the lawyer should have already
focused the witness only on those events that he expects to question the witness during his
testimony; otherwise the witness' written out story will be formless and fuzzy that it will not
serve its purpose.

Second, the witness becomes better prepared and more confident. After writing down
his story, he knows that he has full grasp of the facts, and that knowledge will ease the
apprehension when he takes the stand.

Third, the witness’ recollection of the events will be better. We've all had this
experience: unlike verbally narrating an event - when we sometimes blurt out words
without meaning them - writing makes us think harder of the event. Chances are that the
witness wrote and re-wrote his "essay" before he gives it to the lawyer, checking and re-
checking his recollection of the events before he commits them on paper. By doing so, he
jogs his memory more.

And fourth, it becomes easy for the lawyer to prepare his outline of the witness'
testimony.

That same confidence of the witness will ultimately infect his lawyer, whose own
confidence will come from knowing that his witness is well-prepared.

Preparing the witness 2: discussing the testimony with the witness

When discussing the outline of the witness' testimony, the lawyer does not give the
witness a copy, however. He recognizes the danger that, during cross-exam, the witness
may be required to produce the outline if he unwittingly mentions it. If he does produce the
outline, it will give the impression that he was coached.

The lawyer merely discusses with the witness the facts he wishes to extract from the
testimony. For instance, if the witness is an eye-witness, the lawyer may tell him, "What I
will be asking you questions about will focus mainly on what you saw happened at the time
of the event, and my questions may require some detailed answers. I may also ask you why
you were there at the time, where you were located while the events were happening, and
other questions which will provide the context of your testimony."

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 Then - and this is key - he give the witness the topical points of the testimony, explaining
to him its general order, where the probable beginning, middle and end will be, but always
assuring him not to worry about the particular order as it is not written in stone and may,
therefore, change. The witness must know the topics and the facts that will be taken up
within these topics.

Because of this discussion, he will instinctively recognize these topics as his direct
examination goes along.

It is also important that beforehand, the lawyer must have already discussed with the
witness the role that his testimony will play in the case. For instance, the lawyer may say
"You are an eyewitness to the robbery. Your testimony is therefore very important because
it is you who can identify who the robbers were. You were there while the robbery was
going on, so you can describe to the judge what the robbers did during and after the
robbery, what was taken from you, and your mental state while the robbery was going on."
This will make the witness aware of the significance of the topics that the lawyer will ask
him during the examination.

The lawyer does not rehearse the witness by going through a written Q & A with him. This
will just make the witness nervous: he knows that when he takes the stand, only his lawyer
will have a copy of the "script" while he will only have his memory to rely on. He may think
he may screw up, forget something, or answer a question incorrectly.

But, perhaps just to give him a feel of how the questions will be phrased, the lawyer can
ask him a couple of sample questions to answer during the discussion. But, he has to be
reminded that the words of the questions are not important: the lawyer may ask it in a
different way, especially when there is an objection from the other lawyer. What is
important is he understands the question and he should answer as he understood it, taking
into account the topics that the lawyer discussed with him earlier.

Preparing witnesses 3: some reminders to the witness

Below is just seven of the things that we usually discuss with the witness immediately
before he takes the stand:

1. You are under oath to tell the truth, so just do that. If you do not know the
answer, say you do not know. If you do not remember, say that, too. Don't guess. You may
think that you knew something because somebody told you about it; however, when you're
testifying in court, you don't really know that something because you were not there when
it happened: you have not seen, witnessed or perceived the event by your own senses. So,
say you do not know. Or, qualify your answer by telling the examiner the source of your
knowledge: that you only knew it from someone else.

2. When your lawyer stands before the question is finished, that generally means he
will be objecting to the question, so don't answer immediately. The judge will later decide if
you will answer or not.

3. If you do not understand the question, do not answer. Instead, say that you did
not get the question and ask that it be repeated. Remember, you are there to tell the truth;
you'll not be able to do that if you didn't understand the question in the first place.

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 4. Be courteous to the court and the other attorney. Address the judge as "Your
Honor", the lawyers as "Sir" or "Madame."

5. Every word uttered in court is recorded, unless the lawyers and the court agree
that it be "off-the-record". So speak clearly, slowly and loud enough so the stenographer
will be able to record everything you say. It'll distracting if the stenographer interrupts the
testimony and asks you to repeat what you said earlier so she can transcribe it.

If you want to answer the question or questions in the vernacular, say so and your
lawyer will ask permission from the judge. You’ll be allowed to do so.
6. Listen to the words of the question carefully, but do not interpret them. Ascribe
only ordinary meaning to the words used. When the question is "who are you?", that usually
refers to your name only; it is not a deep question that asks for your personality, or values,
or advocacy. Answer only what is being asked. The questions and answers in court are
unlike everyday conversations, when we can read meaning into questions and understand
what the other is asking although different words may have been used. If necessary, ask
that the question be interpreted in the vernacular first so you will feel comfortable with its
meaning.

7. Your lawyer may ask you to recall conversations. Unless the question calls for it
(of which you will be told beforehand), don’t be afraid to paraphrase; your lawyer is not
asking you to repeat the conversation word for word. It is usually impossible to recall the
exact words; what matters is the message that those words conveyed to you.

It is different during cross-examination, however, where the other lawyer will

attempt to "box" you into committing to the exact words that were used. Resist; say that
you can only paraphrase. This will give you elbow room later if he repeats the question.

Finally, we warn the witness not to be late. Only judges have that privilege.

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